554
REPORTER,
vol. 44.
The .substance, however, being .dutiable in manner as I have decided,it follows, I think, that the bottles are dutiable as containing "spirituous liquors," according to the provisions o( S9hedule H of the ta.riffact. 'JuqgIi!ent for the defendant. jl
ist.
CHASE ". WESTERN UNION TELEGltlPH (Circuit Court, N. D. Georgta. D,ecember28,1890.)
, : i
\; l1'BLB&RAPBPo)fPANIES-DELA.1 IN DELIVERING :M:ESSAGE..,..D4lofAGJllS.
.' ·
TbEi receiver of a teleirapbic message, tbe delivery of wliiOO bas been negligently 'delayed, cannot recover tor mental 8uf!ering alone, unaocompaniedwU,h other in
Spry. I ,
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Court.)
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to declaration. &:. Garrett,', for plaintiff. for defenQant. .... . .. . ... 1
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avers that. by negligence the of a telegraphicmt'ssage ,tQhim, whereby he of a brother-in-law j and by rea89R9f iwhich he reached the. point where the rellttiou ,died several hours death; his sister. in the ;qIean time, being compelled to appeal to stnmgers for assistance, on account of which 4e was: caused serious inconvepience, and. Inental suffering. He claims punitive damages in the amount of $5.,000. To this declaration a ,general demurrer is filed. Can a recovery ,be had for mental suf· .fering. unmixed with other injury?is the question presented by this demurrer. The negligence of the defendant is sufficiently jRnd it seem$ tq be settled in contrary, however,tQ cases, that the receiver of a telegram may recover sustained by negligent delay.in deliyery. An exami;natiQn of the" :adjudged cases, however, shows that the great weight of authority is against ,recovery in a cas.e like this for m,ental suffering alone·.. , . . ' ," In tb,ecas.,of ReUe .v. Telegraph Co., 55 Tex. 308, it.was held that "a telegraphCOInpany is lillble for an injury to the feelings of a son by the ;willJul ne,glectto deliver to him a message announcing the death of his wpereby he was prevented from attending .her funeral." But in the case of Railway Co. v. Levy, Te,x,563,t\1is opinion was Clverruled;:anqthe court held as follows: "The plaintifl'l'med a telegraph for delay in delivering to him a. message ann01;mcing the death sOQ,111 wife and child"whereby he was prevented from attending thefuneraJ,., Held. that there! could, be no recovery for his mental suf-
I.: ';T.he
CHASE
v. 'WESTERN
UNION: TELEGRAl'H 00.
555·\
fering." The case of Relle v. Telegraph CU., 8upra, was referred to, and the court say "that it cannot be sustained upon principle, nor upon the authority of adjudicated caees." There are later cases in Texas on this subject, but I understand them to be in harmons" with the case last cited. In the case of Wadsworth v. Telegraph Co., Tenn. 695,8 S. W.Rep. " 574, this question was considered, and the majority of thecourtpeId that damages for mental suffering may be recovered. LURTON, J., with whom FOLKES, J., concurred, dissented, saying "that an action for injury to the feelings, or fright or grief, or other mental injury. cannot be sustained as an independent ground of action." It appears that are statutes in Tennessee requiring telegraph. companies to. deliver graphic messages "correctly, and without unreasonable delayj" and for a failure to do so the delimIting company is declared to be "liable in damages to the party aggrieved." CALDWELL, J., who dHivered the': opinion of the court;lays some stress on this statute, and TURNll:Y, C.l., in a concurring opitHon, rests his concurrence primarily upon this utej holding that it covers all messnges, and.makes no the character of messages. So that in this case a bare majority sustained the right of action for' damages of this sort, and :the right Tested largely upon the st.atutes of the state. I have found no other case that goes to this eJttent; nor hasanysu'ch case been cited. On the contrary, quite an array of authorities deny the right to recoverfof1da'mages of this character. RU8sell v. Telegraph ClY., (Dak.) 19 N.W. Rep.408j Westv. Telegraph 39 Kan. 93,17 Pac. Rep. 807j RailwayCo;v. 'Levy, 59 Tex. 542,,563; :Wyman v.Leaviu,71 Me., 227; Johnson v. Wells" 6 Nev. 224; Nagel v. Rauway Co.,75Mo; '653j1 RauwayCo. Vo StablCff, 62 Ill. 313; Freese v. Tripp, 70m.503; Meidel V.I. Anthia, 71 Ill.241j Jock v. Dankwardt, 85 Ill. 333j Porte:t v. ,RauuJ(J,y Co." 71 Mo. 83j Fenelon v. Butts, 53 \Vis. 344, 10 N. W. Rep. 501jFerguson v. Davia Co., 57 Iown; 601, 10 N. W. Rep. 906j Stewart v. Ripon, 38Wis. 584; Masters v:. Warren. 27 Conn. 293; Blake v.Rauway Co·· 10 .Eng. : Co., Law & Eq. 442; liynch v. Knigld, 9 H.L. Cas. 10 Cent. Law J. 48; Rowell v. Telegraph Co., (Tex.) 12 S. W. Rep. 534;1 Th01l1;pson v.TelegraphCo., (N. C.) 11 S. Rep'. 2G9, 30 Amer.& Eng. Corp. Cas. 634. The telegram in ,this case was sent from one point in Georgia to another. : Section 2943 of the Code of Georgia is as follo,\vs: "Exemplary damages' can never be allowed in Cllses arising on The plaintiff sues! for punitive and vindictive damages only. I do not understand that this) character of damages can be recovered. except for an actual· tort.· 'Any I right of the plaintiff in this case would be for breach of an implied i tract to promptly deliver the telegram, and it' seems that vindictive or I punitive damages would never be given in 8. ease of this kind., The de.: murrer to the declaration in this case must be sustained. . I
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556
DDERAL REPORTER,
MASON
v.
BEEBEE
et al.
(OWcuit Oourt. S. D. Iowa, O. D. December 17, 1890.) I. GARNISHMENT-PROCEDURE-JUDGMENT ON ANSWER.
Plaintiff, having obtained a judgment against defendant, garnished a corporation for which defendant was working, whose answer was as follows: The persons forming the corporation, among whom was defendant's Wife, agreed to devote their time and services to it withoLlt compensation; but it was agreed that defendant's wife should contribute the services of her husband instead of her own, and that, if necessary, $25 a week was to be paid to her for her living expenses. This sum was paid her for a given time, but there was never any agreement whereby the corporation was to pay defendant anything, or Whereby it employed him at p,ll, except as a substitute for his wife, under said agreement. Betd, that plaintiff was not entitled to judgment on the answer, ,as it does not on its face show any liability of the garnishee 00 defendant. Where defendant is a resident of Illinois, and wages due him were earned there, the sitU8 of the debt is Illinois, though plaintiff may have garnished the debtor while be was in Iowa, and by virtue of the principles of comity the Iowa court will apply the Illinois exemption laws tOJluch wages. Limiting Mooney v. Railroad 00., 60 Iowa, 346, 14 N. W. Rep. 343.
. . S.UIE-CONFLlCT OF
At LaW. Motion by plaintiff for judgment on answer of garnishee. W. S. (]lark, for plaintiff. J. H. Jones, for garnishee. SRIRAS, J. The plaintiff herein obtained judgment in this court 'against J. T. Beebee and 1. N. Rice for the sum of $449.85, on which execution was issued, and service thereof was had by garnishing the Rice-Hinze Piano Company,a corporation created under the laws oflowa. J. C. Macy, the president and treasurer of the company, answered the garnishment on behalf of the company, and the plaintiff now moves for judgment on such answer, claiming that it appears therefrom that the garnishee, since the service of the writ of garnishment, has paid for the benefit of 1. N. Rice, one of the execution debtors, the sum of $500, which amount should have been held tor the benefit of the execution plaintiff. In the answer on behalf of the garnishee the following facts are stated: 'rhe Rice-Hinze Piano Company was organized at Des Moines, Iowa, in March, 11;89, and continued the manufacturing of pianos at that place until about the 1st of June, 1890, when the factory was removed to Chicago. The capital stock of corporation was fixed at the sum of $2.5,000, of which J. C. Macy owned $22,000, and Mrs. L. E. Rice, wife of owned $1,000, and Mrs. Hinze $2,000; that it was agreed that 'the members of the company should devote their time and services to the work of the company without .compensation; that when Mrs. Rice subscribed for her shares of stock, it was agreed that she should contriuutethe time and services of her husband in place of her own, und that ifit became necessary the company should pay her, for her living expenses, the sum of $25 per week; that so long as the business was carried on at De Moines no payments were made her. but after the rpmoval to Chicagoweekly payments of $25 were made to her. Touching any arrangement between
