was delivered by the appellant to the appellee's agent at Jamestown, and is within the undertaking.

Whether such mental suffering would be caused by the failure of a brother-in-law and his wife to go at once to the bedside of a dying sister-in-law, or from the failure of a physician to reach his patient while there was still hope that something might be done to bring relief and possibly a restoration of health, or for some other cause, is unimportant. It was not the particular cause but the effect which might be produced, that was contemplated by the parties, and which is to be looked to in determining the question of liability.

In W. U. Teleg. Co. v. Sheffield, 71 Tex. 570, a telegram was delivered to the company's operator to be forwarded, in the following language: "You had better come and attend to your business at once."

The court said that the message indicated with reasonable certainty to the telegraph operator the following facts:

1. That the plaintiffs had a claim of some pecuniary nature.

2. That the claim should be attended to at Jefferson, from whence the telegram was sent. 3. That the matter was urgent "at once." 4. Loss would probably follow the want of such attention which might be prevented by obeying the call made in the dispatch.

This was sufficient to disclose that the object was to enable the plaintiffs to attend to a claim due them, and that loss might result from a failure to transmit the message with prompt

ness.

In Hadley v. W. U. Teleg. Co., 115 Ind. 200, the court said, by Niblack, J., with reference to the following telegram:

North Salem, Ind. Oct. 14, 1886. To Henry Hadley, Danville, Indiana. Want your cattle in the morning; meet me at your pasture. S. C. Clay.

"In this case the terms or contents of the dispatch sent by Clay to Hadley fairly indicated the necessity of its prompt delivery, as well as a transmission, and were such as to authorize the inference that a delay until the day following would result in confusion and possible, if not probable, injury to one or both parties to the dispatch."

In Manville v. W. U. Teleg. Co., 37 Iowa, 214, Miller, J., said: "The message was 'Ship your hogs at once.' The obvious reason of this is evident on its face. It clearly imports that to meet a good market the bogs must be shipped promptly, and that by delay a good market will be lost. It is equivalent to saying, 'If you ship at once you will obtain gains on the purchase and sale of your hogs. If you delay these gains will be lost by the market price declining. It is most obvious, therefore, that the parties contemplated this very thing."

As we have already said, the message clearly indicated its importance and the urgency for its prompt delivery. There were no pecuniary benefits contemplated as the result of the telegram, as it had no reference to any business transaction, and therefore pecuniary loss because of its non-delivery was not within the appellee's undertaking. But the appellant hav.

ing suffered great mental anguish because, as he alleges, of the failure to promptly deliver the message, it would be a harsh rule which would deny to him all redress except the mere pittance which he paid to have the telegram transmitted and delivered.

Some of the authorities seek to draw a distinction as to the right to recover damages for mental suffering between cases where there may be a recovery for pecuniary loss and cases where there is or can be no pecuniary loss, to which class the present action belongs. With this distinction we have no sympathy, and confess we can see no good reason for it to rest upon. If a telegraph company undertakes to transmit and deliver promptly a message wherein dollars and cents are alone involved, and its negligence occasions loss, it is conceded by all the authorities that it may be compelled to respond in damages. Why? Because it bas negligently broken its agreement, or, as is sometimes said, failed to perform a duty which it owed to the sender of the message or the person to whom it is addressed, as the case may be. For the same pecuniary consideration it undertakes to transmit and deliver a message informing a husband of the dangerous illness of his wife, the wife of her husband, the parent of the child, the child of the parent, and it negligently fails to deliver the telegram, and as the result the sick relation dies without having the comforting presence of the husband, wife, father, mother, son or daughter, with all the benefit, physical and mental, which would follow. Is it to be said that under such circumstances the most that the telegraph company is liable for is nominal damages because of great mental anguish suffered by the sender of the telegram, who may be the father, mother, husband, wife or child? In our judgment, no such rule can or should prevail. In failing to promptly deliver a telegram the telegraph company negligently fails to perform a duty which it owes to the sender of the telegram, and should be held liable for whatever injury follows as the proximate result of its negligent conduct.

It is not a mere breach of contract, but a failure to perform a duty which rests upon it as a servant of the public.

In our opinion, upon the fact stated in the second paragraph of complaint, the appellant is entitled to recover damages for the mental suffering which he endured, and his measure of damages is the amount paid for the transmission of the message, and, in addition, what would seem to be just as a compensation for his mental anguish.

We have examined the case of W. U. Teleg. Co. v. Hamilton, 50 Ind. 181. That was an action to recover a statutory penalty, and what is said as to the measure of damages in an action like the one under consideration is mere dicta, as no such question was before the court. See W. U. Teleg. Co. v. Cooper, 71 Tex. 507, 1 L. R. A. 728, 10 Am. St. Rep. 772, and note; Wadsworth v. W. U. Teleg. Co. 86 Tenn. 695, 6 Am. St. Rep. 864, and note; Beasley v. W. U. Teleg. Co. 39 Fed. Rep. 183.

Judgment reversed, with costs. Court below directed to proceed in accordance with this opinion.

Petition for rehearing overruled.

TERRE HAUTE & INDIANAPOLIS R.

CO., Appt.,

v.

Alfred CLEM.

(....Ind.....)

1. The presumption of negligence on the part of a railroad company, which prevails in case of an injury to its passenger, does not obtain in case of injuries to the horse of a traveler upon a highway, which are received while the traveler is attempting to cross the railroad track. 2. A railroad company is not required to use extraordinary care or vigilance in respect to the safety of its highway crossings. 3. Permitting incompetent evidence tending to support a finding to go to the jury over objection will cause a reversal of the Judgment, where the other evidence in support of such finding is not of a satisfactory character. 4. Evidence of repairs made after an injury has been sustained is incompetent to show antecedent negligence.

(March 19, 1890.)

Α PPEAL by defendant from a judgment of the Circuit Court for Carroll County in favor of plaintiff in an action to recover damages for injuries to a horse, alleged to have resulted from defendant's negligence. Reversed. The facts sufliciently appear in the opinion. Messrs. John G. Williams and S. O. Bayless, with Messrs. W. H. Russell and F. F. Moore, for appellant:

The court erred in allowing appellee to prove that long after the accident and after this case had once been tried, the appellant had rebuilt the crossing in question and put down planks with square edges next the rail.

Pierce, Railroads, 294; Dale v. Delaware, L. & W. R. Co. 73 N. Y. 471: Payne v. Troy & B. R. Co. 9 Hun, 526; Ely v. St. Louis, K. C. & N. R. Co. 77 Mo. 34; Nalley v. Hartford Carpet Co. 51 Conn. 524, 50 Am. Rep. 47; Morse v. Minneapolis & St. L. R. Co. 30 Minn. 465, 11 Am. & Eng. R. R. Cas. 168.

Messrs. L. D. Boyd and L. G. Beck, for appellee:

Appellant owed it as a duty incumbent upon it as a common carrier resting under the responsibility of exercising extraordinary care and prudence to see that this crossing was in a safe and proper condition.

Meredith v. Reed, 26 Ind. 334; Toledo & W. R. Co. v. Stoddard, 25 Ind. 185; Louisville, N. A. & C. R. Co. v. Smith, 91 Ind. 119.

When an injury occurred like the one described in this case, it was upon the defendant to prove that it was without fault.

Patterson, Railway Accident Law, pp. 348441; Benford, S. O. & B. R. Co. v. Rainbolt, 99 Ind. 556; 1erre Haute & I. R. Co. v. Buck, 96 Ind. 347; Columbus, C. C. & 1. R. Co. v. Newell, 104 Ind. 264; Louisville, N. A. & C. R. Co. v. Jones, 7 West. Rep. 33, 108 Ind. 551.

The admission of incompetent evidence which a special finding of the jury shows to have no weight with them is a harmless error.

Annas v. Milwaukee & N. R. Co. 67 Wis. 46. By making the repairs the appellant admitted that it made a mistake when it beveled off its plank, and by thus correcting this mistake it would thus prevent similar accidents. 7 L. R. A.

Shaber v. St. Paul, M. & M. R. Co. 28 Minn. 103; O'Leary v. Mankato, 21 Minn. 65; Phelps v. Mankato, 23 Minn. 276.

It was an admission that appellant controlled this crossing, and comes within the rule laid down in

Lafayette v. Weaver, 92 Ind. 479; Kelly V. Southern Minnesota R. Co. 28 Minn. '98; Pennsylvania R. Co. v. Henderson, 51 Pa. 315: West Chester & P. R. Co. v. McElwee, 67 Pa. 311; McKee v. Bidwell, 74 Pa. 218; Martin v. Tocle, 59 N. H. 31; Gulf, C. & S. F. R. Co. v. Leansich, 63 Tex. 54.

Elliott, J., delivered the opinion of the court:

The appellee recovered a judgment for damages for an injury to a horse which he was driving. The theory of the appellee is that the appellant was negligent in constructing a crossing at a point where its railroad crossed a public road, and that the injury to his horse was caused by the appellant's negligent breach of duty.

It is quite well settled that it is the duty of a railroad corporation to so construct and maintain its crossings that they may be safely used by persons traveling the highway, and that, for a negligent breach of this duty, it must answer in damages to one who exercises ordinary care and sustains an injury from the breach of duty by the company. Evansville & T. H. R. Co v. Crist, 116 Ind 446; Evansville & T. H. R. Co. v. Carvener, 113 Ind. 51; Indianapolis & St. L. R. Co. v. Stout, 53 Ind. 143.

The appellee's counsel are in error in assuming that the same rule applies to actions for the recovery of injuries received at a crossing that applies in cases where passengers are injured while on the trains of the carrier. The presumption of negligence which prevails in such cases does not obtain in such a case as this; and the cases of Cleveland, C. C. & 1. R. Co. v. Newell, 104 Ind. 264, and Terre Haute & I. R. Co. v. Buck, 96 Ind. 347, are not in point.

The evidence upon the question of negligence in this instance is not of that satisfactory character which authorizes us to declare that the judgment should be affirmed although incompetent evidence was admitted. If, therefore, we find that incompetent evidence was permitted to go to the jury over the objection of the defendant, we must reverse the judgment.

The appellee was permitted to prove that after the accident occurred the appellant changed and repaired the crossing. This was error. Evidence of repairs made after an injury has been sustained is incompetent to show antecedent negligence.

This question was carefully considered by the Supreme Court of Minnesota in the case of Morse v. Minneapolis & St. L. R. Co., 30 Minn. 465, and three of the earlier decisions of that court were overruled. In the course of the opinion in that case it was said: "But, on mature reflection, we have concluded that evidence of this kind ought not to be admitted under any circumstances and that the rule heretofore adopted by this court on principle is wrong, not for the reason given by some of the courts that the acts of the employés in making such repairs are not admissible against their principals, but upon the broader ground that such

acts afford no legitimate basis for construing | such an act as an admission of a previous neg lect of duty. A person may have exercised all the care which the law required, and yet, in the light of the new experience, after an unex pected accident has occurred, and as a measure of extreme caution, he may adopt additional safeguards. The more careful a person is, the more regard he has for the lives of others, the more likely he would be to do so, and it would seem to be unjust that he could not do so without being liable to have such acts construed as an admission of prior negligence. We think such a rule puts an unfair interpretation upon human conduct, and virtually holds out an inducement for continued negligence."

The authorities are collected and discussed In the case of Malley v. Hartford Carpet Co., 51 Conn. 524, and it was there said: "The fact that an accident has happened and a person has been injured immediately puts a person on a higher plane of diligence and duly from which he acts with a view of preventing the possibility of a similar accident, which should operate to commend rather than condemn the person so acting. If the subsequent act is made to reflect back upon the prior one, although it is done upon the theory that it is a mere admission, yet it virtually introduces in to the transaction a new element and test of negligence which has no business there, not being in existence at the time.

The question received consideration in the very recent case of Hodges v. Percival (Ill.) 23 N. E. Rep. 423, and in the course of the discussion the court said: "The happening of an accident may inspire a party with greater diligence to prevent a repetition of a similar occurrence, but the exercise of such increased diligence ought not, necessarily, to be regarded as tantamount to a confession of past neglect." The rule asserted in the cases from which we have quoted is declared in many other cases. Dougan v. Champlain Transp. Co. 56 N. Y. 1; Baird v. Daly, 68 N. Y. 547; Dale v. Delaware L. & W. R. Co. 73 N. Y. 471; Salters v. Delaware & H. Canal Co. 3 Hun, 333; Payne v. Troy&B. R. Co. 9 Hun, 526; Cramer v. Burlington, 45 Iowa, 627; Iluson v. Chicago & N. W. R. Co. 59 Iowa, 581; Ely v. St. Louis, K. C. & N. R. Co. 77 Mo. 34.

The rule stated and enforced in the cases referred to is the only one that can be defended on principle. To declare the evidence competent is to offer an inducement to omit the use of such care as the new information may suggest, and to deter persons from doing what the new experience informs them may be done to prevent the possibility of future accidents. The effect of declaring such evidence competent is to inform a defendant that if he makes changes or repairs he does it under penalty, for, if the evidence is competent, it operates as a confession that he was guilty of a prior wrong. If it is competent, then it would be the duty of the court to charge the jury that they must regard the making of subsequent repairs as evidence of antecedent negligence, and this, cer tainly, would violate settled principles, for it is what occurs prior to the action, and not what happens afterwards, that determines whether there has or has not been a culpable breach of duty. If, for example, the owner of a mill or

factory repairs or improves after an accident has happened, so as to prevent the possibility of future accidents, the just inference is, not that he was previously guilty of negligence, but that, prompted by humane motives and influenced by the new information supplied by the fact that an accident has happened, he has exerted extraordinary care and taken such precautionary measures as render it impossible that anyone should be injured in the future. It is unjustly reversing the presumption to hold that such an owner improves or repairs because he was at some time anterior to the time of making the improvements or repairs guilty of an actionable wrong. True policy and sound reason require that men should be encouraged to improve or repair, and not be deterred from it by the fear that if they do so, their acts will be construed into an admission that they had been wrong-doers. A rule which so operates as to deter men from profiting by experience and availing themselves of new information has nothing to commend it, for it is neither expedient nor just.

Accidents do happen despite the utmost care and diligence, but, with very rare exceptions, the bappening of an accident does not of itself supply grounds for inferring negligence. It is common knowledge that accidents occur which even the highest degree of care can neither anticipate nor prevent; but in cases where an extraordinary accident happens which ordinary prudence could not have foreseen or anticipated, neither a natural nor an artificial person is liable for a failure to exercise extraordinary care. Wabash, st. L. & P. R. Co. v. Locke, 112 Ind. 404.

The law does not, as a general rule, require anyone to exercise extraordinary care orig ilance. The question in this case, and in all others like it, is whether the defendant prior to the accident used due care; and whether due care was or was not used must be determined by the precedent facts and attendant circumstances, not from what sub-equently occurs. If a person does all that is reasonable under the facts as they exist and are known at the time of the injury, or at some antecedent tine, he is not a wrong-doer, for no one is bound to anticipate and provide against unusual and unexpected accidents.

In Lane v. Atlantic Works, 111 Mass. 136, it was said: "The test is to be found in the prob able injurious consequences which were to be anticipated, not in the number of subsequent events and agencies which arise." Events may cast their shadows before so as to render an act wrong, but they cannot cast them backward over an act not wrong when it was performed, and make it a tortious one.

The fact that the bappening of an accident may convey information producing a conviction or belief that bad extraordinary precaution been taken the injury would have been prevented does not legitimately tend to prove that ordinary care and vigilance were not exercised. All may be done that ordinary care requires, and yet a person satisfied by experience that a higher degree of care may insure absolute safety may employ extraordinary means to prevent accidents in the future. In doing this he does what is commendable, and, certainly, he ought not to be restrained or checked by

Llewellyn J. COPPAGE, Receiver of the Williamson Straw Stacker Co., Appt.,

0.

Milton H. HUTTON.

(......Ind.......)

The agreement of one who signs articles of association for the formation of a corporation to take stock therein does not become enforceable until he has acknowledged the articles as required by $3851, Rev. Stat.

(April 12, 1890.)

was made before the organization of the corporation was fully effected.

The Statute requires that the persons who desire to organize a corporation shall "make, sign and acknowledge before some officer capable to take acknowledgment of deeds, a certificate in writing," setting forth therein certain enumerated things. Rev. Stat. § 3851.

The contention of the appellee is that the promise is not effective because the complaint shows that only seven of the eighty-three signers acknowledged the certificate. It seems quite clear under the decision of this court in Indianapolis Furnace & Min. Co. v. Herkimer, 46 Ind. 142, that the mere signing of the paper

the Circuit Court for Montgomery County in favor of defendant in an action to recover the amount due upon an alleged stock subscription. Affirmed.

The case sufficiently appears in the opinion. Messrs. Kennedy & Kennedy and Ristine & Ristine for appellant.

Messrs. Wright & Seller for appellee.

Elliott, J., delivered the opinion of the

court:

The appellant sues as the receiver of an insolvent corporation, and seeks to recover a subscription which he alleges the appellee made to the capital stock of the corporation. It is alleged that the appellce, with others, signed articles of association and that he agreed to take two shares of the capital stock, and pay therefor $100.

The introductory clause of the articles of association reads thus: "We, the undersigned, agree to take the stock in the amount set opposite our names, in a company to be organized for manufacturing and selling the Williamson Straw Stacker." There were eighty-three signers and seven of them acknowledged the execution of the articles of association before a notary public and the instrument was duly recorded. It is also alleged that $8,000 of stock was subscribed; that the company was duly organized and board of directors elected.

There can be no doubt, under the authorities, that a valid subscription to the capital stock of a corporation may be made by signing the preliminary articles. Such a subscription becomes enforceable upon the perfection of the corporate organization according to law, under the articles of association. Miller v. Wild Cat Gravel Road Co. 52 Ind. 51; Multon v. Clayton, 54 Iowa, 425; Phoenix Warehousing Co. v. Badger, 67 N. Y. 294; Cravens v. Eagle Cotton Milis Co. 120 Ind. 6.

If the promise of the appellee is not binding it must be for some other reason than that it

NOTE.-Creation of corporation.

The mere signing of articles of association does not create a corporation. The subscribers nrust also sign and acknowledge the certificate of incorporation and cause it to be recorded. Indianapolis Furnace & Min. Co. v. Herkimer, 46 Ind. 142.

A corporation bas no existence until the date of the filing of its charter; and persons named therein as directors for the first year assume or incur no obligations until it is filed. St. Louis, Ft. S. & W. R. Co. v. Tiernan, 37 Kan. 606.

and that, in order to make valid and effective articles of association against all who sign, all must acknowledge them as the Statute requires. Here it affirmatively appears that seven only of the signers acknowledged the execution of the instrument, and it cannot be inferred that those who did not acknowledge it remained bound by its terms. As to them, the instru ment was incomplete, and it is quite well settled that an incomplete subscription cannot be enforced. Dutchess & C. C. R. Co. v. Mab bett, 58 N. Y. 397; Reed v. Richmond Street R. Co. 50 Ind. 342; Richmond Street R. Co. v. Reed, 83 Ind. 9; Williamson v. Kokomo bldg. & L. F. Asso. 89 Ind. 389.

It is, however, argued by appellant's counsel that the complaint does affirmatively show that the corporation was organized, but this does not meet the question, for it may well be that it was organized with the appellée as a stockholder. The fact that he did not acknowledge the instrument as the law requires, implies that he did not become a stockholder, and there is nothing in the complaint which rebuts or opposes this implication. It devolved upon the plaintiff to remove the inference if he could. As the appellee did not acknowledge the instrument as the law requires, he did not become a stockholder, and if he were insisting that he was entitled to the number of shares set opposite his name, it is quite clear that the corporation might successfully resist bis claim; since it is obvious that only those who acknowledged the articles of association as the law requires can successfully insist upon their right to stock. If the appellee cannot be regarded as a stockholder, then it seems quite clear that he did not bind himself by simply signing the articles of association.

Whether a good complaint can be framed is not the question before us, for the only ques tion presented by the record is as to the sufficiency of the complaint as it is written. Judgment affirmed.

The omission to file with the circuit clerk the certificate of organization of a special company by the holders of the special stock of the company incorporated under a special Act authorizing the same can be taken advantage of by the State alone; and a suit cannot be maintained against a stockholder, as partner, upon a corporate liability of the company. Mo. Gen. Stat. 1865, and Rev. Stat. 1855, chap. 34, § 7, do not apply to such corporation. Granby M. & S. Co. v. Richards, 14 West. Rep. 750, 95 Mo. 106.