. poration. It therefore owes the duty to those for whose benefit it undertakes to transmit and deliver messages, to transmit and deliver them without unreasonable delay. For violation of this duty or a negligent performance thereof, it is responsible to the party for whose benefit the contract was made, whether it be the sender or the addressee. . But the right of the addressee is necessarily grounded between the company and the sender, whether the action be in form technically for a breach of contract or one sounding in tort. Without the contract under which the message was forwarded as a foundation for the cause of action, no recovery whatever I could be had. In order for the addressee to sue, it is essential, therefore, that it appear that he was to be benefited by the contract for sending the message, and that that fact was known to the company when it received the message for transmission, either from its language or otherwise." Continuing with the case at bar, the court said: "The question then arises: Is the language of the message sufficient to convey such information? We think it easy of demonstration that it is not; and it suffices to say that this court holds that the message, in its wording, is not such as would charge the transmitting company with the information that the sendee is the party for whose benefit it is sent." The result of this decision is that the Alabama court has finally recognized a right in the sendee to sue for damages occasioned by the negligent act of a telegraph company, but only to the extent that the right grows out of the contract itself, which must have been made for the benefit of the sendee, and that this fact must have come to the notice of the company. The court, however, exhibited its reluctance to give up the old rule denying a right to the sendee by holding that the message in question did not indicate to the company that it was for the benefit of the sendee, and therefore denied the right of recovery to the plaintiff. The injustice of this decision we shall show by later comparing it with the decisions in Fererro v. Western U. Teleg. Co. 9 App. D. C. 455, 35 L.R.A. 548, and Joshua L. Bailey & Co. v. Western U. Teleg. Co. 227 Pa. 522, 76 Atl. 736, 19 Ann. Cas. 895, 43 L.R.A. (N.S.) 502. In M. M. Stone & Co. v. Postal Teleg. Cable Co. 35 R. I. 498, 87 Atl. 319, 46 L.R.A. (N.S.) 180, it was said that a message to a commission merchant stating "sell" two cars, and naming the price, or "packed" a certain quantity of apples, is not sufficient to notify the company of a possible loss in case of failure to deliver, so as to charge it with the loss which he suffers because he loses a sale which he had negotiated, and to fill which he sent an order for goods, which was accepted by telegram, so that he was compelled to sell the property at a loss. The court in part said: "As the plaintiff was not a privy to the contract between the defendant and the sender of the message, his action was properly in tort. We have held, however, that his action is founded upon and limited by the contract, and his rights thereunder can be no greater than those of the party to the contract. (31 R. I. 174, 76 Atl. 762, 29 L.R.A.(N.S.) 795.) His action is governed by the same rule as to damages as would be that of the sender of the message in an action ex contractu founded upon the same alleged negligent act of the defendant. If the special circumstances under which the contract was actually made were communicated by the plaintiffs to the defendants, and thus known to both parties, the damages resulting from the breach of such contract, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from a breach of contract under these special circumstances so known and communicated. But if, on the other hand, these special circumstances were wholly unknown to the party breaking the contract, he, at most, could only be supposed to have had in his contemplation the amount of injury which would arise generally, and in the great multitude of cases not affected by any special circumstances, from such breach of contract. The only loss which would naturally flow from the failure to deliver this message would be the loss to the sender of what he paid to the defendant The weight of is that knowledge for its services. authority merely that the messages are important or that they relate to a business transaction, without information as to the exact nature and extent of that business transaction, does not constitute such a disclosure of special circumstances as would render the defendant liable." We have no complaint to find with the rule enunciated by the court for ascertaining special damages, but we cannot agree that the company did not know that special loss would follow from a failure to deliver the telegram promptly. Nor can we agree that "the weight of authority is that knowledge as merely that the messages are important, or that they relate to business transactions, without information as to the exact nature and extent of that business transaction, does not constitute such disclosure of special circumstances would render the defendant liable." Our investigation of the cases, particularly the more recent decisions, convinces us that neither the weight of authority, nor the authority numerically, is in consonance with this statement, but is rather in accord with the next two cases we shall discuss. An examination of many of the authorities cited by the court in the above case revealed the fact that most of the cases involved the rights of the sender, concerning whom we do not doubt that the rule is correct to a certain extent, since he is generally held bound by the contract, having the option to secure his interests by having the message repeated. But no such safeguard is open to the sendee; he receives a telegram relating to a business matter which he has a right to assume is correct. To assume otherwise is to permit telegraph companies, who are chartered to serve the public, to inconvenience and annoy the public, and to impede the expeditious conduct of business and commerce. The case of Fererro v. Western U. Teleg. Co. 9 App. D. C. 455, 35 L.R.A. 13 Gray, Communication by Teleg. §§ 71, 73; Bigelow, Lead. Cas. Torts, 621 et seq; 2 Sedgw. Measure of Damages, § 878; 25 Am. & Eng. Enc. Law, 825; New York & W. Printing Teleg. Co. v. Dryburg, 35 Pa. 298, 78 Am. Dec. 338; Western U. Teleg. Co. v. Dubois, 128 Ill. 248, 15 Am. St. Rep. 109, 21 N. E. 4; 548, decided by Chief Justice Shepard, presents in succinct and forceful language the trend of current decisions of most of the state courts of the rights of the sendee of a message. In this case an action on the case was brought for damages for negligently transmitting the following telegram from wholesale commission merchants of New York, to the plaintiff: "Fifty-five cents, usual terms, quick acceptance." The fifty-five cents meant price per bushel of potatoes, and in transmission was caused to read fortyfive cents. The plaintiff on the faith of the message ordered two car lots, and at once proceeded to take orders for the potatoes at 65 cents per bushel. When the bill of lading arrived, accompanied by a bill at 55 cents per bushel, the plaintiff had already secured orders for one carload. The plaintiff refused to pay this amount, and immediately made an effort to secure potatoes elsewhere so as to supply his customers, but failed. The plaintiff brought the action for loss of $500 profits and $10,000 damage for loss of trade. After stating the English rule relative to the rights of the sendee and the effect of stipulations on the reverse side of a telegraph blank, the court said: "With apparent unanimity the courts of our states have upheld the right of the receiver of a telegraphic message to maintain an action on the case as for a tort committed, whenever he shall have sustained actual damages, without his own fault, by reason of the negligent alteration of the message in the process of its transmission."18 After stating the rule regarding recovery for messages in cipher or unintelligible language, Mr. Justice Shepard said: "We think a different rule ought to be established for cases where the face of the message clearly shows that a business transaction is contemplated, and that negligence in its transmission may reasonably be attended with pecuniary loss."14 Continuing with the case before the May v. Western U. Teleg. Co. 112 Mass. 90. 14 United States Teleg. Co. v. Wenger, 55 Pa. 262, 93 Am. Dec. 751; Western U. Teleg. Co. v. Griswold, 37 Ohio St. 301, 41 Am. Rep. 500; Western U. Teleg. Co. v. Blanchard, 68 Ga. 310, 45 Am. Rep. 480; Pepper v. Western U. Teleg. Co., 87 Tenn. 558, 10 Am. St. Rep. court, Judge Shepard said: "The question of the purpose of the despatch is one for the court, of course, in the first instance. If in cipher, or language conveying no reasonable suggestion of its importance or value, the court would. necessarily charge the jury that no more than nominal damages could be recovered, because none other could appear, in a legal sense, to have been within the contemplation of the parties in the event of a breach of duty of transmission. But if the despatch shows upon its face that it relates to a matter of value, and that negligence in its transmission may lead to possible pecuniary loss, the court should then, with a proper charge, leave it to the jury to find whether, under all the conditions under which the business is carried on, the defendant either in fact knew, or was reasonably put upon inquiry, the particu lar purpose of the message, or to apprehend, as a reasonable consequence of culpable negligence, the accrual of the particular damage claimed as the natural and direct result of that negligence." The court permitted the sendee to recover. As to the quantum of damages, we shall discuss that phase later. In Rittenhouse v. Independent Line of Telegraph, 44 N. Y. 263, 4 Am. Rep. 673, the court, referring to the contention for exemption from liability founded on the obscurity of the telegram, said: "If the defendant's agents did not understand the importance and import of the message, they could have inquired of the plaintiff, and hence, for all the purposes of this action, it must be treated as fully understanding the message and the consequences which would result from its erroneous transmission." We come now to contrast the case of Joshua L. Bailey & Co. v. Western U. Teleg. Co. 227 Pa. 522, 76 Atl. 736, 19 Ann. Cas. 895, 43 L.R.A.(N.S.), 502, decided March, 1910, with the cases decided by the Alabama and Rhode Island courts, respectively. The point to which. 699, 11 S. W. 783, 4 L.R.A. 660; Western U. Teleg. Co. v. Sheffield, 71 Tex. 570, 10 Am. St. Rep. 790, 10 S. W. 752; Western U. Teleg. Co. v. Adams, 75 Tex. 531, 16 Am. St. Rep. 920, 12 S. W. 857, 6 L.R.A. 844; Squire v. Western U. Teleg. Co. 98 Mass. 232, 93 Am. we particularly direct attention is the construction placed by the Pennsylvania supreme court on a telegram with reference to its indicating on its face that it is a business proposition, from which loss would naturally follow in case of error or delay in transmission or nondelivery. This case and Fererro v. Western U. Teleg. Co., supra, stand in marked contrast with the decisions in Anniston Cordage Co. v. Western U. Teleg. Co., 161 Ala. 216, 135 Am. St. Rep. 124, 49 So. 770, 30 L.R.A. (N.S.) 1116, and M. M. Stone & Co. v. Postal Teleg. Cable Co., 35 R. I. 498, 87 Atl. 319, 46 L.R.A. (N.S.) 180, but they seem to represent the general trend of opinion of the leading courts. The facts in the Bailey Case were briefly as follows: Plaintiffs as wholesale commission merchants in Philadelphia were the sole agents of a manufacturing firm in South Carolina. In reply to a telegram from plaintiffs containing an offer for goods, the manufacturing firm gave the following telegram to the defendants for transmission to the plaintiffs: "Anxious that you sell summer deliveries of decade at chaplet." When the telegram was delivered the word "chapel" was substituted for "chaplet." The telegram was unrepeated and the blank contained the usual stipulations. with respect to limitation of the company's liability. According to the plaintiffs' private code, "chapel" meant 43 cents per yard, while "chaplet" meant 5 cents per yard. Relying on the message, the plaintiff sold 30,000 pieces of goods. at 4 cents a yard. The manufacturing company refused to deliver the goods sold at 43 cents, and compelled the plaintiffs to pay 5 cents, thus causing a loss of $1,999, for the recovery of which the suit was instituted. One of the questions considered by the court was: "Can the plaintiffs, addressees and receivers of a telegraphic message, recover under the facts stated?" Here was a message which had in it two code words which were meaningless to the public, and, exDec. 157; True v. International Teleg. Co. 60 Me. 22, 11 Am. Rep. 156; Tyler v. Western U. Teleg. Co. 60 Ill. 421, 14 Am. Rep. 38; Postal Teleg. Cable Co. v. Lathrop, 131 III. 575, 19 Am. St. Rep. 55, 23 N. E. 583, 7 L.R.A. 474. clusive of the word "sell," there was nothing in it to suggest that the message involved a business transaction, or that any loss might be sustained by either party to the transaction in case the message should be delayed, erroneously transmitted, or not delivered. If the decisions in Anniston Cordage Co. v. Western U. Teleg. Co. and M. M. Stone & Co. v. Postal Teleg. Cable Co. supra, are correct, it would seem an easy matter to arrive at a proper decision in this case. From the following excerpts from the decision of the court, it would appear that the rules as laid down by the Alabama and Rhode Island courts did not meet with the approval of the Pennsylvania court. After stating the rule adopted by the weight of authority in this country with respect to the right of the addressee to recover in tort actions for injuries arising out of the negligent transmission of an intelligible message, the court said: "The rule or notice of exemption from liability printed on the back of the blank on which the sender writes the message does not apply to the recipient of a message, and will not relieve the telegraph company from liability to him for errors in transmission."15 Continuing, the court ruled that despite the words "decade" and "chaplet" were code words, still the message disclosed that it related to a business transaction of importance which required important attention. Being sent by a manufacturing concern, the court held it manifestly referred to a commercial transaction, saying: "A message need not disclose on its face the nature of the business so that its meaning as to quantity, quality, or value may be disclosed to the operator; if it shows that it relates to a commercial or legal transaction of value it is sufficient.16 The fact that a telegraphic message is sent and received by parties evidently engaged in business operations, and that part of it is in cipher, should be notice to the oper 15 New York & W. Printing Teleg. Co. v. Dryburg, 35 Pa. 298, 78 Am. Dec. 338; Tobin v. Western U. Teleg. Co. 146 Pa. 375, 28 Am. St. Rep. 802, 23 Atl. 324; La Grange v. Southwestern Teleg. Co. 25 La. Ann. 383; Western U. Teleg. Co. v. Richman, 5 Sadler (Pa.) 26, 19 W. N. C. 569, 8 Atl. 171; West ator that it relates to business matters of importance to the parties and some of which matters they wish to conceal from the general public and about which they wish to communicate without delay." The court then quoted with approval from the following two works: 2 Joyce on Electric Law, § 953: "The rule (requiring the message to indicate its importance) is not to be construed as meaning that all the details in reference to a transaction referred to in a despatch and which are known to the parties themselves need be disclosed to the company, to render it liable for more than nominal damages." In Jones on Telegraph & Telephone Companies, § 535, it is said: "Although a message may be couched in unusual or trade language, if it is sufficiently plain to indicate that it relates to a business transaction of much importance and that loss will probably result unless it is promptly transmitted and delivered, recovery will not be limited to nominal damages." After considering that telegraphic communications between business concerns, especially if expressed in part in code terms and partly referring to selling or purchasing, usually relate to business transactions, and that the operator of the company to whom the message was given knew that the sender and the sendee were business concerns, the court held that such circumstances are sufficient indication to the company that the message is of such a character as to require diligent care in its transmission, and therefore permitted the plaintiff to recover for loss of the goods as well as commissions. A view similar to that taken by the Pennsylvania court was taken by the Kentucky court, which held that in a suit by the addressee for delay in delivering the telegram, "Ship to-day eightyfive dollar load," the company would be liable for the damage caused; the variern U. Teleg. Co. v. Landis, 9 Sadler (Pa.) 357, 21 W. N. C. 38, 12 Atl. 467. 16 Postal Teleg. Cable Co. v. Lathrop, 131 Ill. 575, 19 Am. St. Rep. 55, 23 N. E. 583, 7 L.R.A. 474; Pepper v. Western U. Teleg. Co. 87 Tenn. 554, 10 Am. St. Rep. 699, 11 S. W. 783, 4 L.R.A. 660. ous stipulations in the blanks exonerating the company from negligence and from liability for errors and delay in cipher or obscure messages being considered contrary to public policy and void. The court said: "It is often of the utmost importance to the sender or receiver of a message that the same should be in cipher or obscure, because if sent in plain language the contents would often become known and the object in view defeated; hence public policy forbids the appellant (telegraph company) should, by any contract, exempt itself from damages resulting from its negligence in transmitting such messages."17 Limitation of Time for Presentation of Claims. Practically all of the stipulations on the usual telegraph blank have been disposed of by the foregoing argument, with the exception of the stipulation relating to the limitation of time for the presentation of claims. The courts generally concede that stipulations, if reasonable, limiting the time within which a claim must be presented, are valid. For a failure to present a claim within sixty days, as stipulated on the message, announcing the mortal illness of his father, a judgment in favor of the plain tiff was reversed in Eaker v. Western U. A client who sued the telegraph company for damages for its negligent delay in delivering a business telegram from his attorney was defaulted in Manier v. Western U. Teleg. Co. 94 Tenn. 442, 29 S. W. 732, because the claim was not presented within sixty days. Likewise held in Beasley v. Western U. Teleg. Co. 39 Fed. 181; Western U. Teleg. Co. v. 17 Western U. Teleg. Co. v. Eubanks, 100 Ky. 591, 66 Am. St. Rep. 361, 38 S. W. 1068, 1 Am. Neg. Rep. 244, 36 L.R.A. 711. 18 Blount v. Western U. Teleg. Co. 126 Ala. 105, 27 So. 779; Peay v. Western U. Teleg. Co. 64 Ark. 538, 43 S. W. 965, 39 L.R.A. 463; Western U. Teleg. Co. v. Ferguson, 157 Dougherty, 54 Ark. 221, 26 Am. St. Rep. 33, 15 S. W. 468, 11 L.R.A. 102. The stipulations limiting the time in which the action must be brought are generally considered not as partaking of the nature of a statute of limitations nor as a limitation of liability for negligence, but as a recognition of such liability coupled with a reasonable requirement that the company should have an opportunity to investigate the facts while its records are still in existence and the facts fresh in the memory of its witnesses. The Kentucky and New Mexico courts appear to be the only ones which hold that such stipulations are invalid, the former court in Davis v. Western U. Teleg. Co. 107 Ky. 527, 92 Am. St. Rep. 371, 54 S. W. 849, holding that they are void as between the company and the sendee, on the ground that they are contrary to public policy. In Western U. Teleg. Co. v. Longwill, 5 N. M. 308, 21 Pac. 339, it was said: "Instead of being a reasonable business regulation, we think the condition named and annexed to the message was an effort on the part of the company to restrict its legal liability to sixty days. It would introduce into the local jurisprudence of every state, territory, or country in which it is sued, a species of private statute of limitations or nonclaim. It would avoid the policy of the state or territory in the matter of the time in which actions both in tort and contract should be brought." Stipulations as Affecting Claims for Mental Anguish. Before concluding the discussion on the right of recovery, there remains one class of cases which should receive some consideration, viz., those cases involving a claim for damages for mental anguish and suffering. The courts generally hold that recovery for mental anguish unaccompanied by physical damage or some pecuniary loss cannot be had, a few courts holding the contrary.18 The Ind. 64, 60 N. E. 674, 1080, 54 L.R.A. 846; Western U. Teleg. Co. v. Rogers, 68 Miss. 748, 24 Am. St. Rep. 300, 9 So. 823, 13 L.R.A. 859; Connell v. Western U. Teleg. Co. 116 Mo. 34, 38 Am. St. Rep. 575, 22 S. W. 345, 20 L.R.A. 172; Morton v. Western U. Teleg. Co. 53 Ohio St. 431, 53 Am. St. Rep. 648, 41 N. E. |