FEDERAL REPORTER ,vol.. 52.
in passing upon the question asw whether the party was entitled to it, the plaintiff would only be entitled to actual, and not to punitive, ages, unless he was rudely treated by the agent; that is, if he was treated insultingly, or with malice, or something of the kind; willful, wanton conduct on his part. If the plaintiff did not have a transferable ticket, the agent had a right to so determine. A nontransferable ticket is sold at a reduced rate,ahd the party to whom it is given is alot;le permitted to travel 0n it, and, if he then sell it, it would deprive the railroad company of their additional profit. Now, 1 do not know that I can say much more to you. You have the 'case before you, and, unless you are satisfied that the d.efendant was. the agent who passed upon the railroad ticket that was presented, -and· as I have instructed you that he was not the agent in passing upoD,that,-then the plaintitrwould not be entitled to recover, unless it w.as for the conduct of the conductor of the train in refusing plaintiff a berth, and I believe there is no complaint upon that score. You can retire. '
Verdiofreturlleq and jUdgment rendered for the defendant company.
Qf Appeals, Fourth, Oircuit. October 11,1892.)
In an actionagsinst a railroad company for breach of· contract for special train, damages caunot be for disappointment a/ld ,mental suffering resulting from delay in departing to reach the bedside of a sick parent.
The hirer of a special train" who .declined to take it because 9f the refusal of the railroad company to guaranty arrival in time to connect with another train, cannot recover interest and costs on tbe sum paid for such train, where the company tendered such sum at the time of refusal, before suit and in court.
In Error to the Cireuit Court of the United States for the District of South Carolina. Affirmed. Statemer.t by HUGHES, District Judge: This action was commenced in 1890 by the service of a complaint and summons on the defendant in the court of common pleas for Laurens county, state of South Carolina. The complaiut alleges that plaintiff in error was. a physician, attending the sittings of the State Medical Association at Laurens on, the 24th of April, 1890; that at 3:45 P. M. of that day he was informed by telegraph of the dangerous illness of his father at Marion Cop.rt House, S. C.; that at that hou)." he contracted with the defendant 'railroad corporatiQn to convey him to Columbia, S. C., by 10:20 of the night of said day, for which service he then
WILCOX 'V. RICHMOND &: D. R. CO.
paid defendant the sum of $195; that he was anxious to see his stricken .ather at the earliest practicable moment, and to do so it was necessary to reach Columbia at the moment stated, or be delayed a considerable time, in view of which circumstances he entered into the contract stated; that the defendant was fully informed of the peculiar circumstances influencing him to make the contract; that the defendant failed and refused to perform its agreement; that the plaintiff, as a consequence of this breach of contract, suffered "great distress of mind, anxiety, mortification, and suspense," by reason of which he sustained damages in the sum 0[$5,000. As a second cause of action, plaintiff demanded the recovery of $195 and interest from the 24th day of April, 1890, and costs. His suit was for these latter sums, and for $5,000 damages for the first cause of action alleged. The defendant, in its answer, admits that the plaintiff wished to get a special train from Laurens to Columbia, and paid defendant $195 for such train. Defendant agreed to run the train for such sum, but notified the plaintiff that it could not guaranty that the train would reach Columbia in time to make connection with the Coast Line, though it had every reason to believe that it could make such connection, but the plaintiff refused to take the train unless the ·guaranty was made. This the defendant declined to do, and tendered the plaintiff the money back at once, which the plaintiff refused. The defendant furthermore alleges that it made every effort in its power to ac<'ommodate plaintiff, and, while it informed him that it believed the train would reach Columbia in time for the connection, it did not and could· not reasonably be expected to guaranty the same. The defendant also alleges that it has heretofore offered the plaintiff the $195, now offers the same to him, and brings the said $195 into court, and again teriders it to the plaintiff. The cause was removed to the United States circuit court for the district of ;:;outh Carolina. It came on for trial before a jury at Columbia, 2d December, 1890. The defendant, through its counsel, under the statute of South Carolina, interposed an oral demurrer to the first cause of action, to wit, that the complaint did not state facts sufficient to constitute a cause of action, in that damages could not be recovered on a breach of contract for mental suffering, unaccompanied with physical suffering or peruniary loss. The court sustained the demurrer, and directed the jury to find a verdict on the second cause of action for plaintiff for $195, without interest or costs. Whereupon the plaintiff excepted, and now appeals, alleging for error: (1) That the court erred in not overruling the demurrer; (2) in instructing the jury not to find interest and costs for the plaintiff. B. W. Ball and C. A. Woods, for plaintiff in error. J. S. Cothran, for defendant in error. Before Fur,LER, Circuit Justice, GOFl!" Circuit Judge, and HUGHES, District Judge. HUGHE'3, District Judge, (after statiny the fact8 as above.) The complaint, in setting out the first caUse or action , olllits several material facts in the case. It alleges only the contract to be conveyed by a certain time, to
for a certainsump'fmoney paid; the motive ofpla:intiff for conveyed; and the, of defendant to convey aSiqesired. refusal ,arrival by the required,time; the plaintift".i, refusal to except with such guaranty;. the deproffer of the mon!3yin return, after the plaintiff's refusal to be considered in passing upon material aathey areaselements in the transaction. The this case preSented by the demurrer, which admits only a part of the material facts, is not the one £lhown by the record, and is therefore little other thana. moot case brought here. for decision. The moot question is whether an action ,can be maintained which claims damages merely for an al1eged "distress of mind, 1,I.11xiety, mortification, and suspense, " resulting from the nonperforma,nce of a contract, no personal injury and no pecuniary loss havingb,6!:lp sustained or being pretended; the anxiety and sU£lpense of mind \le4lg the result solely of a delay in startAs was said by the court in ing on, a visit toadangerously Griffin v.. Colver, 16 N. Y. 489., tile damages recoverable in actions of this be supposed tobave,entered into character "must·be such of the partieswhe,n they made the contract; that is, they must 1Ie such as migh.tllaturally be expected to follow its violation, and they must be certain both in, their nature and in respect to the Olluse from which To the same effect was the decision in Ma8terton v. Mayrrr, etc., 7 HiUj 61j in Telegraph Co. v. HaU, 124 U., S. '\1:44,8 !3up. Ct. Rep. 577. i ' : The compll1int does not allege any pecuniary injury, such ael th.i:lloss of an or of SOIJle advantage or thing of value, as rEjsplted from plaintiff's failure to start on his visit to. the sick person as promptly as he desired. Reclaims ,the damages incident to the mentaldistress anq discomfort merely from delay in his departure, not for the anxiety naturally felt for the condition of sick rEjlative. He was the subject of two mental pains,-one for the conditiopof the sick person; the other from delay at the railroad sta,tion,-the latter only being the subject of this ,act1011. It .cannot be pretended that damages from ,the latter cause of "anxiety" and "suspense ",...,..uncertain, indefinite, undefinable, unascertainable, dependent so largely on the peculiar temperament of the per£lon suffering the delay -,was in the contemplation of the defendant when it, entered into the alleged contract. ,It ca11not be pretended that the defendant had in contemplation, in making the contract, the distinction between the plaintiff's natural anxiety Jor the sick father and his nEjrvous impatience and worry of mind ,the place of departure. Eagerness to start on a journey, impatience of delay, and troubleoflIlind wrought by detention at, a railroad station, have never before now been made the' 'sole ground of an action' for damages, and are the sole ground of plaintiff's claim for $5,000 damages in this suit. The, authorities are substantially agreed on the proposition that pain .of mind, as distinct from bodily suffering, can be considered in actions for damages from injuries to the and for pecuniary loss and ex-
WILCOX V. RICHMoND & D. R. CO.
pense or like causes, incident to such injuries. But we know of no decided case which holds that mental pain alone, unattended by injury to the person, caused by simple negligence, can sustain an action. It was said in lAJnch v. Knight, 9 H. L. 598, that" mental pain and anxiety the law cannot value and does not pretend to redress when the unlawful act complained of caused that alone." We think there was no error in the court below in sustaining the demurrer in this case, and in holding that, "in an action for the breach of a contract, cannot be recovered for disappointmtmt and mental suffering only, there being no allegation of any other damage." The complaint claims, as a second cause of action, the sum of $195, with interest from the 24th of April, 1890, till paid, and costs; the principal sum being the amount paid by plaintiff for the hire of a special train from Laurens Court House to Columbia, for the purpose of making close connection with the train from Columbia to Marion Court House. The record shows that defendant was ready to perform the service which it had engaged to perform, but that plaintiff refused to take the special train that had been hired; the ground of declining to take it being the refusal of defendant to guaranty his arrival at Columbia by the reqUired time. The defendant had the right to refuse to run a special train at an irregular hour, at a speed to insure its anival at a specified time. Its right to withhold a guaranty to that effect being such as legally and necessarily belongs to every railroad management, it followed that, when the plaintiff refused to take the special train proffered by the defendant, without such guaranty, the latter was exonerated from the performance of its obligation, and the plaintiff was without right in the premises, except to a return of the money which he had paid for the train. The answer admits that the defendant declined to guaranty a connection in time; alleges the plaintiff's refusal to take the train; sets up a tender of the money in return, made at the time and before suit; and' renews the tender in court, and proffers judgment for theprincipalsum; all in accordance with the p'ractice in the state courts of South Carolina. 'rhe tender having been admitted, there was no error in the instruction of the court below to the jury to find for the plaintiff the sum of $195. without interest or costs. The judgment of the court below, therefore. is affirmed.
(C4rcuit Co'Wl1 of .4ppeals, Fourth O£reu,tt. October 11,1892.) No.H.
EJEO'l'MENT-TITLE TO SUPPORT-ADVPRSE POSSESSION AND PAYMENT OF TAXES.
2. LANDLORD AND TENANT-ESTOPPEL--DENJAL OF LAKDJ.oRD's TITI.E. 8. SUfF:-LEASE-NoTICE TO QUIT.
The Marmet Company was Incorporated under the laws of Ohio, and permit· ted to do business In West Vlrgini,a under that name, according to the laws of the state. It customarily used in West Virginia. the name of the Marmet Mining Company, and executed a lease under this misnomer. Its identity, however, appeared both' by proof and admissions. Held, that the Marmet Company could an action ot ejectment under the lease.
In Error to the Circuit Court of the United States for the District of West. Virginia. At Law. Action of ejectment by the Marmet Company against P. J. Hackett and others. Judgment for plaintiff. Defendants bring error. Affirmed. Statement by HUGHES, District Judge: This was an action in ejectment, instituted and conducted under the practice in such cases observed in West Virginia. The action was brought for the recovery of lots of ground and houses upon them, contained in a tract orIand in Putnam'<jlounty, in that state, embracing 4,500 acres, described in the declaration. At the trial of the cause, the defendants below: elected to sever, and ,pleaded not guilty I severally. It was afterwards agreed upon the record that the case against P. J. Hackett should be tried singly, and thatthe final judgment in that action should be entered in each of the other cases,-about 120 in all. The defendants below had been miners in the employment ot'the plaintiff company, as such occupying houses on its property, under leases the same as that under which Hackett held. That lease contained the following stipulations: "This lease shall terminate and close whenever the said Jessee, from any cause, ceases to work for said company. The said company may terminate this lease at any time by giving the said lessee ten days' notice in writing titat the same shall end and terminate upon some day nallled in such notice, and upon the day so nam JJ in said notice this lease shall terminate and end, and the said lessor may re-enter and take possession of said leased premises without further notice or proceeding. The said lessee hereuy agrees and promises to pay to the said Marmet Mining Company the rent, as aforesaid, monthly, and also agrees that such rent may be withheld by said company