by those courts which entertained a contrary view. There have been decisions in Texas since the So Relle case which seem to modify to some extent the broad doctrine there announced. Thus in the case of Gulf etc. Ry. Co. v. Levy, 59 Tex. 563, 46 Am. Rep. 278, where an action was brought by a father against the telegraph company for failure to deliver a message from his son, announcing the death of the latter's wife and child, it was held there could be no recovery for mental suffering because the telegram sent by the son to his father was for the benefit of the son alone, and that no contractual relation existed between the father and the telegraph company, and therefore there could be no recovery.

The kindred case to the above, namely, Gulf etc. Ry. Co. v. Levy, 59 Tex. 542, 46 Am. Rep. 269, was a suit by the son against the railway company, which also operated a telegraph company, to recover damages for his mental suffering arising from the failure of the defendant company to deliver to his father the message alluded to in the previous case (59 Tex. 563, 46 Am. Rep. 278). At the time the message was sent the plaintiff's wife and child had died in a strange city, and the plaintiff, being without funds, was unable to transport their bodies to his home for burial, and had advised his father of their death, in order that the latter might furnish him money with which to bring their bodies home for burial. The telegram not being delivered promptly, and he being unable to have them embalmed, was compelled to bury them among strangers, and to dispose of all of his property to raise the necessary money for this purpose. The telegraph company was held liable in damages for the mental suffering he sustained. It did not appear in the trial that the telegraph company was notified of the necessity of prompt delivery of the message. The court, however, said: "In cases of this character, there is frequently great difficulty in determining whether they are to be limited to such measure of damages as are usually allowed in cases for breach of contract, or whether, in addition to such measure, circumstances of aggravation may be shown, and the larger measure of damages recognized as proper in cases of tort applied; or whether such cases, though to some extent based upon contract, may not be considered as essentially founded on tort. Actions such as this are not based solely upon breach of contract, and hence to be considered in the determination of the measure of damages by the rules applicable to a breach of contract to sell and deliver property, or to do certain acts in reference to property, but the rules applicable to such contracts, in so far as applicable, may be looked to; as where a contract has been made under special circumstances, which are known to the contracting parties, and from which, in the nature of things, special damage will result if the contract is not performed. There the parties are to be presumed to have contracted with reference to such circumstances and the damages which will naturally flow from nonperformance of such contract; and in such case, where the element of wrong,

oppression or willful neglect enters into the breach of the contract, any damage, either actual or exemplary, which the law authorizes to be recovered, ought to be held to have been contemplated by the parties, and therefore recoverable. 'In cases of delay, or total failure of delivery of messages relating to matters not connected with business, such as personal or domestic matters, we do not think that the company in fault ought to escape with mere nominal damages, on account of the want of street commercial value in such messages. Delay in the announcement of a death, an arrival, the straying or recovery of a child, and the like, may often be productive of an injury to the feelings which cannot easily be estimated in money, but for which a jury should be at liberty to award fair damages.' The distinction

made by the court in the two Levy cases above mentioned as between the sender and the sendee of a message has not been followed in the subsequent Texas cases, nor has any such distinction been made by any of the other courts which have adjudicated on this subject. All of the later Texas decisions have followed the rule laid down in the So Relle case without any qualifications: Stewart v. Western Union Tel. Co., 66 Tex. 580, 59 Am. Rep. 623, 18 S. W. 351; McAllen v. Western Union Tel. Co., 70 Tex. 243, 7 S. W. 715; Loper v. Western Union Tel. Co., 70 Tex. 689, 8 S. W. 600; Western Union Tel. Co. v. Cooper, 71 Tex. 507, 10 Am. St. Rep. 772, 9 S. W. 598, 1 L. R. A. 728; Western Union Tel. Co. v. Broesche, 72 Tex. 654, 13 Am. St. Rep. 843, 10 S. W. 734; Western Union Tel. Co. v. Simpson, 73 Tex. 422, 11 S. W. 385; Western Union Tel. Co. v. Adams, 75 Tex. 531, 16 Am. St. Rep. 920, 12 S. W. 857, 6 L. R. A. 844; Western Union Tel. Co. v. Feegles, 75 Tex. 537, 12 S. W. 860; Western Union Tel. Co. v. Moore, 76 Tex. 67, 18 Am. St. Rep. 25, 12 S. W. 749.

The supreme court of Virginia has adopted the common-law rule that damages for mental suffering are not recoverable, save as incidental to a physical injury, and hold that damages for mental suffering caused by delay in delivery of a telegram, independently of any injuries to the person or estate, are not recoverable: Connelly v. Western Union Tel. Co., 100 Va. 51, 93 Am. St. Rep. 919, 40 S. E. 618, 56 L. R. A. 663.

The rule adopted in Virginia has also been followed by the courts of West Virginia and in Davis v. Western Union Tel. Co., 46 W. Va. 48, 32 S. E. 1026, it was held that a plaintiff, who was prevented by delay in delivery of a telegram from attending his mother's funeral, could not recover damages from the telegraph company for his mental suffering.

The national courts have almost without exception adhered to the common-law rule that mental suffering alone, independent of any physical injury, cannot be regarded as an element of damage. Thus, it is said in Chase v. Western Union Tel. Co., 44 Fed. 554, 10 L. R. A. 464: "The receiver of a telegraphic message, the delivery of which had been negligently delayed, cannot recover for mental suffering

alone, unaccompanied with other injury"; and to the same effect is the ease of Tyler v. Western Union Tel. Co., 54 Fed. 634. In Kester v. Western Union Tel. Co., 55 Fed. 603, it was held that no damage could be awarded to a father for mental suffering arising from the fact that he was prevented by the negligent delay in the delivery of a message from attending the funeral of his son: See, also, Western Union Tel. Co. v. Wood, 57 Fed. 471, 6 C. C. A. 432, 21 L. R. A. 706; Gahan v. Western Union Tel. Co., 59 Fed. 433, and Western Union Tel. Co. v. Sklar, 126 Fed. 295, 67 C. C. A. 281.

b. Relationship of the Parties.-Damages for mental suffering cannot be recovered against a telegraph company for negligent delay in transmission or delivery of a message announcing sickness, death or burial unless there exists such close degree of relationship between the plaintiff and the person regarding whom the message is sent, from which natural love and affection are presumed: Western Union Tel. Co. v. Ayres, 131 Ala. 391, 90 Am. St. Rep. 92, 31 South. 78. In this case it was held that plaintiff could not recover damages for his mental suffering in being prevented from being present at the death and burial of his brother in law's child, by reason of delay in delivery of the telegram. In Denham v. Western Union Tel. Co. (Ky.), 87 S. W. 788, it was held that an aunt could not recover damages for mental suffering resulting in delay in delivery of a telegram announcing the death of her nephew, the court holding that such damages could only be allowed to those of the first degree of relationship. In North Carolina, however, it was held that a father in law could recover damages for mental suffering because he was prevented from attending his daughter in law's funeral, by reason of delay in delivery of a telegram: Bennett v. Western Union Tel. Co., 128 N. C. 103, 38 S. E. 294. And in Bright v. Western Union Tel. Co., 132 N. C. 817, 43 S. E. 841, a wife was allowed damages for her mental suffering caused by failure to deliver to her husband's uncle a telegram from her to him, announcing her husband's death, bnt it appeared in this case that the uncle had stood in loco parentis to both the husband and wife. "The law does not regard so much the technical relation between the parties, or their legal status in respect to each other, as it does the actual relation that exists and the state of feeling between them. It does not raise any presumption of mental anguish when there is no relation by blood, but, if mental suffering does actually result from the failure to deliver a message where there is only affinity between the parties, it may be shown and damages recovered." In Hunter v. Western Union Tel. Co., 135 N. C. 458, 47 S. E. 745, damages recovered by a second cousin for mental anguish resulting from failure of a telegraph company to deliver a message informing him of the death of his cousin was upheld. In Western Union Tel. Co. v. Robinson, 97 Tenn. 638, 37 S. W. 545, 34 L. R. A. 431, it was held that a father could recover damages for mental suffering resulting from failure to deliver a telegram to a minister, whereby the minister was prevented from arriving

at the bedside of plaintiff's daughter and baptizing her before she died. In Texas it was held that damages for mental suffering arising from failure of a telegraph company to deliver a message whereby the plaintiff was prevented from attending the funeral of his sister's husband were not recoverable: Western Union Tel. Co. v. Coffin, 88 Tex. 94, 30 S. W. 896; Western Union Tel. Co. v. Luck, 91 Tex. 178, 66 Am. St. Rep. 869, 41 S. W. 469. In Western Union Tel. Co. v. Wilson (Tex.), 75 S. W. 482, it was held that the mental anguish of an uncle arising from the nondelivery of a message, whereby he was prevented from being present at the death of his niece and consoling his sister, was not an element of damages. And in Western Union Tel. Co. v. Arnold, 96 Tex. 493, 73 S. W. 1043, it was held that a wife could not recover damage for her mental suffering resulting from the nondelivery of a telegram to a minister who had been a lifelong friend of the family, whereby he was prevented from attending and conducting the funeral of her husband. The case of Western Union Tel. Co. v. Robinson, 97 Tenn. 638, 37 S. W. 545, 94 L. R. A. 431, was cited and disapproved.

c. Notice of Knowledge as Affecting Right.-The same general rule as to the necessity for notice or knowledge of the circumstances in order to render a telegraph company liable in damages for mental suffering for failure to deliver messages applies equally to cases where the messages relate to sickness, death or burial. It has been thought best to give a few instances of messages relating to the latter in which rulings have been made. A husband, whose wife was sick, sent a telegram to the family physician, "Operate tomorrow-tell Scott not home till Thursday," it was held that the message was not sufficient on its face to indicate that the presence of the physician was desired or that the operation would be postponed if he was not present, and that mental suffering would likely ensue: Western Union Tel. Co. v. Raimes, 78 Ark. 545, 94 S. W. 700. Mr. H. was engaged to be married to Miss G. on the seventh day of August. A week or two previously he had been taken ill with fever. On August 6th he wrote Miss G. that he would be in her town to consummate the marriage on the 7th if he was able to come, and would wire her in either case, and to look for a telegram. On the 7th he telegraphed Miss G. that he would arrive that day on the evening train, but the message was never delivered. He arrived on the evening of the 7th and they were married. Afterward they brought an action against the telegraph company for the price of the telegram and for damages for the mental suffering on the part of the wife incident to the failure to deliver the telegram. It was held that no damages for mental suffering could be recovered, because the company had no notice of the special circumstances out of which damages for mental suffering could have reasonably be said to have arisen: Western Union Tel. Co. v. Hogue, 79 Ark. 33, 94 S. W. 924. A telegram to a physician to "come

at once to

was held to charge the telegraph company with knowledge of its urgency, and render it liable in damages for the mental suffering of a woman about to be confined arising from delay in delivery of a message, the telegraph company having knowledge that the addressee was a physician, but having no knowledge of the necessity of his presence: Western Union Tel. Co. v. Church (Neb.), 90 N. W. 878, 57 L. R. A. 905. A telegram which read, "Mr. Bright is dead; will bury at Liberty Sunday evening," signed "Lillian Bright," was held sufficient to authorize Lillian Bright, who was the wife of deceased, to recover damages from the telegraph company for mental suffering for failure to deliver the message, though her relationship to the deceased was not disclosed: Bright v. Western Union Tel. Co., 132 N. C. 317, 43 S. E. 841. A telegram read, "How is mother today? Let me know at once and I will come at once." Owing to failure to deliver promptly the reply to this message, it was held the sender could recover the expenses of the journey he made to his mother's bedside: Hall v. Western Union Tel. Co., 139 N. C. 369, 52 S. E. 50. A wife telegraphed to her husband, "Sick with grippe, not dangerous, want you to come. Held not to import urgency on its face and no damages for mental suffering for delay in delivery could be recovered: Gerock v. Western Union Tel. Co., 142 N. C. 22, 54 S. E. 782. A telegram reading, "Wire me at Columbia stating mother's condition," held sufficient to indicate sickness and to charge the company with liability for mental suffering caused by failure to deliver: Willis v. Western Union Tel. Co., 69 S. C. 531, 104 Am. St. Rep. 828, 48 S. E. 538. A message from a sister to her brother informing him of the condition of another brother read as follows: "Billy is very low; come at once." Held sufficient to charge the company with notice of relationship: Western Union Tel. Co. v. Moore, 76 Tex. 66, 18 Am. St. Rep. 25, 12 S. W. 949. A telegram read, "To W. S. Carter, Taylor, Texas. N. P. Gorsuch is dead; answer." Signed "F. S. Faust." The wife of W. S. Carter was the daughter of N. P. Gorsuch. It was held the language of the message was sufficient to charge the telegraph company with notice of the relationship of the parties: Western Union Tel. Co. v. Carter (Tex. Civ. App.), 20 S. W. 834. A telegram to H. A. Linn read, "Grace is very low; can you come and bring Maud?" The addressee was a brother in law of Grace. It was held that the language of the message was sufficient to notify the telegraph company that the addressee had a serious interest in the condition of Grace, and that if there was any desire to know more particularly regarding the relationship, it was its duty to make inquiry, and not the duty of the sender to communicate it in the first place: Western Union Tel. Co. v. Linn, 87 Tex. 7, 47 Am. St. Rep. 58, 26 S. W. 490. A telegram read, "To Dr. J. C. Jones, Gonzales, Texas, Come at once, if able, to see Dr. Kerr." Signed "J. M. Henderson." The sender of the message was acting as the agent of the wife of Dr. Kerr. In an action