FEDEHAL REPORTER, vol. 47.
corner, dragged along by them, and injured so that he Soon died. This suit is brought for that injury. A verdict was directed for all but Flood, and found against him. The plaintiff has moved to set aside the verdict for the defendants, and the motion has been heard. The verdict for the defendants Glass & Glass appears to be clearly right. They had nothing to do about procuring the piles. Walls & Van Riper got them where and as they pleased. The question is different as to them. The ordinance had the force of a statute, and created a prohibition for the safety of the public, as well as for the preservation of the streets. Ch'icago v. Robbins, 2 Black, 418; Robbins v. Chicago, 4 Wall. 657; Hayes v. Railroad Co., 111 U. S. 228, 4 Sup. Ct. Rep. 369. Those who have work, dangerous in itself, and requiring particular care, done, cannot shield themselves by letting it out to others without providing for the necessary care. If these defendants had contracted for dragging thm;e logs along the streets as they were dragged, and so dragging them caused the injury, they would, without doubt, be liable. Letting the hauling for that distance at that price, to a person not a common carrier, who had no trucks or connection with facilities for doing it otherwise than by dragging, would have some tendency towards showing that the understanding with the defendants was that it was to be done by dragging, as it was done. The jury might have found that moving such logs in such streets was dangerous in itself; and the cir<mmstances of the injury tended to show that dragging the logs instead of trucking them caused it. Whether those who procure that to be done which may be done either in one way that is lawful, or in another way that is unlawful, are liable for the consequences of doing it in the unlawful way, if they do not provide for having it done in the lawful manner, need nut be decided now. The questions as to what the understanding as to the manner of hauling was, and as to the dangerous character of the work in itself, should, with others involved, as the subject is now viewed, have been submitted to the jury. Motion granted as against Walls & Van Riper.
WESTERN UNION TEL. Co.
October 7, 1891.)
(CirCUit Court, W. D. Arkansas.
To warrant tue consideration of mental suffering as an element of damages there must be such gross negligence on the part of the agents of the company as to indicate a wanton or malicious purpose in failing to transmit and deliver the message. To warrant the consideration of mental suffering in fixing the amount of damages, the mental suffering must be an element of physical pain, or the natural and proximate resnlt of some physical injury.
(Syllabm by the Court.)
WESTER!,; UNION TEL. CO.
At Law. F. E. Willey, for plaintiff. Clendening, Mechem & Youmans, for defendant. PARKER, J. The plaintiff, as the receiver of a telegra phic message, brings suit for the recovery of damages, anll he alleges in his complaint that he lives in the corporate limits of the town of Van Buren, within three-quarters of a mile of the office of defendant. That riefendant is doing a general telegraph business in this state, such as receiving, transmitting, and delivering telegrams from and to public and private persons for pay. The saill company has an ofJ1ce in Van Buren; also at Salisaw, in the Cherokee Nation, Indian country. That on the 20th of April, 1891, one H. O. Meadows employed and paid tbe defendant to send a telegram of the following import: "April 20,1891. SALISAW, 1. T. 'fa Robert Crau:son, Van Buren: Corne on tbis enming's train. Ma wants to see you. H. O. M. "-to the plaintiff, at Van Buren, Ark. That the same was for the benefit of plaintifT'. That defendant received pay for transmitting said telegram. That the defendant refused to deliver the said message to the plaintiff without allY good orlawful excuse whatever, and to tbe great injury and mental suffering of plaintiff. That defendant refused and failed to deliver said telegram in proper time, because. of willful carelessness, wrong, and refusal. That the plaintiff's mother-in-law was at Salisaw, v8ry sick, and supposed to be dying. That she, wanting her children n8ar her at the time of her death, had the dispatch sent to plaintiff. By reason of the defendant's failure to deliver the dispatch to plaintiff, he was prevented, for the space of 24 hours, from going to the bedside of his mother-in-law, and for that reason was compelled to undergo alld suffer disappointment, and great anguish and uneasiness of mind. That defendant's agent knew plaintifFs place of abode, and there was ample time to deliver him the dispatch, so he could go on the next train to Salisaw, but defendant's agent failed to do so. Damages, if actual, must flow directly and naturally from the breach of contract, and they must be certain, both in their nature, and in respect to the Cause from which they proceed. 3 Suth. Dam. 303. The nature of the damages, and the came from which they proceed, must be alleged with certainty in the complaint. Under this rule, the only cause from which damages can proceed in this action is mental suffering, because tbis is the only source of damages that is set out with sufficient certainty. True, in one part of the complaint it is alleged that defendant's failure was to the great injury and mental suffering of plaintiff; yet the pleader alleges no specific fact which shows any injury aside from his mental sufIering. Then the only question for the court is, can the plaintifl"r'ecover for mental suffering alone, unaccompanied with other injury? The rule as f'tated in Wood's Mayne. Dam. 74, (1st ArneI'. Ed.) is: "In no case bas it ever been held that mental anguish alone, unaccompanied by an injury to the person, afforded a ground of action." I think the supreme court of Mississippi in IV. U. Tel. Co. V.47F.llO.8-35
v. Rogers, 9 South. Rep. 823, (opinion delivered May 25, 1891, by Mr. Justice COOPER,) asserts the correct rule when it says:
"We are unwilling to depart from the long established and almost universal rule of law that no action lies for the recovery of damages for mere mental suffering, disconnected from physical injury. and not the result of the willful wrong of the defendant; that such damages are recoverable in actions for breach of contract of marriage."
A rule different from .the .above, and holding that damages may be recovered for mental suffering, unaccompanied with other injuries, by the receiver of a telegraph message for a negligent delay in delivering the same by a telegraph company, has been declared as the correct rule by the supreme courts of Indiana, Alabama, Kentucky, Tennessee, and Texas. Reese v. Telegraph Co., 123 Ind. 295,24 N. E. Rep. 163; Telegraph Co. v. Henderson, 89 Ala. 510, 7 South. Rep. 419; Chapman v. Telegraph Co., (Kentncky supreme court, June, 1890,) 13 S. "V. Rep. 880; Wadsworth v. Telegraph Co., 86 Tenn. 695, 8 S. W. Rep. 574; So Relle v. Telegraph Co., 55 Tex. 309. The supreme court of Mississippi in W. U. Tel. Co. v. Rogers, declares: "These cases rest upon the of each other, finding no support in the decisions of other states or of England." It may be observed that the cases on the subject of the of damages for injury to the feelings because of willful neglect of a company to deliver a telegraphic message are not uniform in the state of Texas. The case of Railroad Co. v. Levy, 59 Tex. 542, in effect overrules So Relle v. Telegraph Co., 55 Tex. 309. But it may be remarked the United States circuit court for the western district of Texas, in Beasley v. Telegraph Co., 39 Fed. Rep. 181, follows the case of So Relic v. Telegraph Co. I think the true rule is announced in Chase v. Telegraph Co., decided by the circuit court for the northern district of Georgia, (44 Fed. Rep. 554,) as well as in the numerous relevant authorities there cited. The principle there announced is in accordance with the old rule of damages, recognized by the courts of this country and England, and it is that the receiver ofa telegraphic message, the delivery of which has been negligently. delayed, cannot recuver unaccompanied with other injuries. If there for mental is such gross negligence on the part of the agents of the company as to indicate wagtonness or a malicious purpose in failing to transmit or deliver the message. there might be a recovery for mental SUffering alone, or mental suffering may be taken into consideration when it can be considered as the natural and proximate result of a physical injury. It, in such a case, becomes an elen)ent to be considered in connection with the physical pain. There is nothing more alleged in the complaint in this case than ordinary willful negligence. There are no allegations of a wanton or malicious purpose on the part of the agents of the defendant in not delivering the dispatch. Such being the case, under the rule named above, and upon the allegations of the complaint, the demurrer must be sustained.
WI,LER V. BLACKETT.
(DistMct Court, D. Alaska. Auguat 15, 1891.)
EJECTMENT-TITLE TO MAINTAIN-OCCliPAXTS OF PuBLIC LAND.
The treaty for the purchase of Alaska, after reserving certain lands in fee-Rim pIe to the owners and occupants thereof, vests the title to all other lands in the United States. Act Congo MlIY 17, 1884, (23 St. U. S. p. 24, § 8,) provides that no person in the territory shall be disturbed in the possession of any land in his actual use or occupation, but that the terms under which he may acquire title shall be reserved for future legislation by congress. Held, that use and occnpation must be deemed a sufficient legal estate, and right to present possession, to maintain ejectment againat one who enters for the government, and that such possession endures at least until legislat\On is had. A tenant in common, who is in actual possession with his co-tenant, is not affected by tqe judgment in an action of ejectment against the latter, to which he was not a party, and of which he knew nothing. .
JUDICATA-TEXANTS IN COMMON.
At Law. Ejectment by M. Clark Miller against C. S. Blackett, United States deputy-collector of customs. ,Judgment for plaintiff. Willough,by, Clark, for C. S. Bl'acfett, in pro. per., and C. S. Johnson, U. S. Dist. Atty., for defendant.'
BnGBEE, J. This is an action of ejectment to recover the possession of certain premises in the town of Juneau. On the trial it was shown by the plaintiff that in May, 1888, he and one Henning, under deed from one Foster, went into possession of the premises as tenants in common, claiming equal shares, and commenced the erection of a house thereon, intending to occupy it as a home; that upon the completion of the building they m()ved into it, and lived there together until the wife of Henning came to the territory, when plaintiff moved out for her accommodation; that the Hennings occupied the premises for a short period thereafter, with the nnderstanding between Henning and the plaintiff that, if the former wanted the house for himself, he should pay the latter for his share, which, so Jiu as, the evidence s40)"s,. he never did. There was no attempt to contradict this testi1'l1 011 y · On the part of the defendant there was introduced in evidence, without objection, a notice, signed, "A. K. Delaney, Custodian," directed to, andserved in February, 1889, upon, Henning, stating that the United States had determined to take possession ofthe ground known as the "Military Resen'ation of Juneau, Alaska," and notifying him to vacate within 30 days, else legal proceedings would be brought against him. Said Delaney at the time was the collector of customs for the distljet of Alaska. Defendant also introduced, without objection, the proceedings, ju,dgment, and writ of restitution in an action bn:lUght in this court in April, 1889, by the United States against said Hennin,g, torecover possession of these premises, which were alleged to be claimed by the government by treaty with and purchase from Russia, and to have been improved as a reservation. Henning having failedto appear in the action, his default was entered. A judgment was rendered