Hal, like those in Stohr v. San Francisco M. Fund Society, 82 Cal. 557 (filed January 22, 1890), which is against the same defendant. After the pas sage of the by-law limiting the amount of benefits, and the payments in accordance therewith, the defendant refused to pay anything further; and within a few months thereafter the plaintiff commenced an action in the justice's court to recover the installments then claimed to be due. Judgment was given in his favor, and the Society appealed to the superior court, where, after a trial on the merits, a similar judgment was rendered. The court below held this judgment to estop the defendant from maintaining the defense presented here, and we think that this ruling was correct. It affirmatively appears that the matters which are presented here were litigated and decided in the former action. There, as here, the main defense was that the by-law of 1883 limited the amount of benefits to be paid to the plaintiff. The court decided that the defendant had no power to impose such a limitation. The only difference between the

A decree making void an agreement and a judg-Y. ment operates only between the parties to the action, and does not make the agreement and judgment void as to other parties or bar the latter in another action. Graham v. La Crosse & M. R. Co. 70 U. S. 3 Wall. 704 (18 L. ed. 247).

Judgments, though erroneous, binding till reversed. Where the court has jurisdiction both of the cause and the parties, and proceeds erroneously, the judgment, notwithstanding the error, is binding, until it is vacated or reversed. Rodgers v. Evans, 8 Ga. 143, 52 Am. Dec. 391; Gorrill v. Whittier, 3 N. H. 269; The Case of the Marshalsea, 10 Coke, 76: Elliott v. Peirsol, 26 U. S. 1 Pet. 340 (7 L. ed. 164) Smith v. Shaw, 12 Johns. 257, 267; Latham

two cases is that, by mere lapse of time and the continuance of the plaintiff's sickness, new installments have become due.

R. & Nav. Co. 27 Fed. Rep. 278; Kennedy v. McCarthy, 73 Ga. 346; Cleveland v. Creviston, 93 Ind. 31; Furneaux v. First Nat. Bank, 39 Kan. 144; Gardner v. Buckbee, 3 Cow. 120; Doty v. Brown, 4 N. Y. 71; Bouchaud v. Dias, 3 Denio, 238.

It is quite true, as stated by Chief Justice De Grey in the Duchess of Kingston's Case 12 Smith, Lead. Cas. *574, 7th Am. ed. 610], that a judgment is not conclusive "of any matter The fact that the former case was comto be inferred by argument from the judg-menced in the justice's court makes no differment." But bere the invalidity of the by-law ence. That court had jurisdiction; and, when was the ultimate point involved, and it was a court which has jurisdiction renders a valid actually litigated ard decided, which circum- judgment, such judgment is as binding as any stance distinguishes the case from Cromwell v. other. But, however this may be, the case Sac Co. 94 U. S. 351 [24 L. ed. 195], cited for was retried on its merits in the superior court, the appellant. The preponderance of author- and the judgment relied upon was entered ity is in favor of the respondent's position that there, and is a judgment of that court. We in such a case the judgment is conclusive in an therefore advise that the judgment and order action for subsequent installments. Robinson appealed from be affirmed. v. Howart, 5 Cal. 428; Love v. Waltz, 7 Cal. 250; Outram v. Morewood, 3 East, 346; Aurora v. West, 74 U. S. 7 Wall. 96 [19 L. ed. 47]; Bissell v. Spring Valley Twp. 124 U. S. 225 (31 L. ed. 411]; Smith v. Ontario, 18 Blatchf. 454, 4 Fed. Rep. 386; Laird v. De Soto, 32 Fed. Rep. 652; Oregonian R. Co. v. Oregon

We concur: Van Clief, C.; Foote, C.

Per Curiam:

For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed.

NOTE.-Telegraph company: damages for neglect and to render it liable for damages for mental suf

to deliver message.

Delay in delivering a telegram etating the death and time of burial of a person referred to merely as" Willie," without notice of his relation to the person addressed, will not subject the company to an action for damages based solely on injury to fraternal feelings from inability to attend the funeral. W. U. Teleg. Co. v. Brown, 2 L. R. A. 766, 71 Tex. 723.

Telegraph companies are required to take notice of whatever the dispatch suggests, and if fuller information is needed they must seek it, or be held to possess all the knowledge such inquiries could have elicited. Western U. Teleg. Co. v. Edsall, 74

Tex. 329.

fering in consequence of such failure. W. U. Teleg. Co. v. Moore (Tex.) 12 S. W. Rep. 949.

Measure of damages for neglect.

Where, by a telegraph company's negligent delay in transmission and delivery to a sister of meseages informing her of the serious illness, and, later, of the death, of her brother, she is denied the opportunity of attending him and making preparations for his funeral, the damages may include such sum as will compensate for the grief, disappointment and other injury to her feelings. Wadsworth v. W. U. Teleg. Co. 86 Tenn. 695.

In case of breach of contract to deliver a message the company is liable for damages for both mental and physical suffering caused thereby. Stuart v. W. U. Teleg. Co. 66 Tex. 580.

A telegraph message as follows, "Come on first train. Bring Ferdinand. His father very low."In the entire absence of gross or willful negliis not sufficient to suggest a near relationship be- gence in delaying the transmission of a telegram tween the sick man and the person addressed, and as the result of which a husband is deprived of will not authorize damages for the mental suffer-seeing his wife before death, no punitive damages ing of the latter's wife, in an action for delay in can be recovered. Beasley v. W. U. Teleg. Co. 39 delivering the message whereby she was unable to Fed. Rep. 181. reach her father before his death. W. U. Teleg. Co. v. Kirkpatrick (Tex.) 13 S. W. Rep. 70.

Failure to disclose the relationship of the parties to a telegraph company when sending a message stating that a person named is dying, and saying, "Come quick," will not prevent a recovery of dam. ages for suffering on account of the inability of the receiver to be with a dying brother because of deday in delivering the message. W. U. Teleg. Co. v. Adams, 6 L. R. A. 844, 75 Tex. 531.

A telegraph message delivered for transmission, saying, “Billie is very low; come at once," is sufficient to reasonably apprise the company of the consequences of a failure to deliver the message, 7 L. R. A.

Grief occasioned by the death of plaintiff's wife is no element of damages for neglect to send a telegram, whereby plaintiff is prevented from seeing his wife; but he can only recover for the disappointment and mental anguish occasioned by the fault or negligence of the company. Ibid.

In an action against a telegraph company for a failure promptly to deliver a message, damages for mere continued anxiety caused by such failure are not recoverable. Rowell v. W. U. Teleg. Co. 75 Tex. 26.

A verdict for $1,000 damages will not be held excessive on appeal, in an action against a telegraph company for a mistake in a message sent by a wo

See also 9 L. R. A. 744; 10 L. R. A. 464; 17 L. R. A. 430; 20 L. R. A. 172;

Section 4178, Rev. Stat. 1881, was repealed by the later Act of 1885.

W.U. Teleg Co. v. Steele, 108 Ind. 183; W. U. Teleg. Co. v. Wilson, Id. 308; W. U. Teleg. Co. v. Swain, 109 Ind. 405.

The Telegraph Company was bound to know that wounded feelings and anxiety of mind were likely to result from the failure to properly transmit and deliver the message. This was apparent from the message itself, and damages occasioned from failure to transmit or deliver the same promptly can be recovered.

W. U. Teleg. Co. v. Fenton, 52 Ind. 1; Rev. Stat. 1881, § 4176; W. U. Teleg. Co. v. Meek, 49 Ind. 53.

Such damages may be recovered as naturally flow from the breach of duty complained of, or such as may fairly be supposed to have been within the contemplation of the parties as a possible result at the time the dispatch was sent. In determining what was fairly within the con

man who was far from home with the dead body | Teleg. Co. v. Steele, 6 West. Rep. 410, 108 Ind. 163. of her husband, calling for a remittance of money, in consequence of which mistake she was delayed for two days before receiving the money to enable her to leave that place with his body. W. U. Teleg. Co. v. Simpson, 73 Tex. 422.

Statutory penalty for neglect.

The Indiana Act of 1885 prescribing a penalty for the refusal of a telegraph company to receive and transmit messages without discrimination does not make the company liable to a penalty for the mere negligent breach of duty. W. U. Teleg. Co. v. Jones, 116 Ind. 361.

Under Rev. Stat. 1881, § 4176, providing a penalty when a telegraph company fails to transmit a message" with impartiality and in good faith," recovery sustained where the message written was "Send

seventieth Illinois," and transmitted "seventh," although the message was not repeated, and was written on a blank requiring repetition to avoid mistakes. W. U. Teleg. Co. v. Huff, 3 West. Rep. 376, 102 Ind. 535.

The Mississippi Act of March 18, 1886 (Miss. Acts 1886, p. 91), providing that any telegraph company failing to transmit and deliver within a reasonable time any message shall pay $25 in addition to other damages to the person injured, gives the right to recover such sum to one to whom the message is addressed, although he paid nothing for its transmission and sustained no pecuniary injury. W. U. Teleg. Co. v. Allen, 66 Miss. 549.

The company may stipulate that the claim for penalty shall be presented within a reasonable time. W. U. Teleg. Co. v. Wilson, 6 West. Rep. 548, 108 Ind. 308.

Pleadings in action to recover penalty.

The penalty for failure of a telegraph company to transmit a message is not incurred unless the omission is alleged to be within reasonable office hours, both at the place of reception and the place of transmission. W. U. Teleg. Co. v. Harding, 2 West. Rep. 206, 103 Ind. 505.

An answer stating that the delay in delivery was caused by its not reaching the point of delivery until after the close of office hours is good on demurrer. Ibid.

The complaint to recover a statutory penalty for failing to transmit a message must aver facts which bring the case within both the letter and the spirit of the statute. W. U. Teleg. Co. v. hinney, 4 West. Rep. 512, 106 Ind. 468.

Averments in the complaint that defendant is a corporation, and that it was operating its line, are sufficient on demurrer. W. U. Teleg. Co. v. Walker, 1 West. Rep. 210, 102 Ind. 599.

A complaint which alleges that "defendant is the owner and operator of an electric telegraph, with a line of wires," running through a certain county, including stations in such county, is sufficient. W. U. Teleg. Co. v. Scircle, 1 West. Rep. 214 103 Ind. 227.

Where the exact words of the law are not used in the complaint, but words of equivalent meaning are employed, it is sufficient. W. U. Teleg: Co. v. Walker, 1 West. Rep. 210, 102 Ind. 599.

A company cannot escape liability by asserting its own failure to provide adequate means for transmission. W. U. Teleg. Co. v. Scircle, supra. To consume hours instead of minutes in the transmission is not such diligence as the statute requires. lbid.

Where the gravamen of the complaint, in an action for a statutory penalty, is for failure of a telegraph company to comply with its duty, an attempt argumentatively to deny is insufficient. W. U. Teleg. Co. v. Ferris, 1 West. Rep. 211, 103 Ind. 91.

Proof to establish neglect.

In an action for the penalty provided by statute for the omission to send a telegram, it devolves on plaintiff to establish a neglect of duty. W. U. Teleg. Co. v. McDaniel, 1 West. Rep. 273, 103 Ind. 294; Aiken v. W. U. Teleg. Co. 69 Iowa, 31.

He makes a prima facie case when he proves that the message properly addressed was not delivered. W. U. Teleg. Co. v. McDaniel, supra.

The plaintiff was properly permitted to testify that the dispatch received, as read by him, directed him to purchase at a certain price,-for the purpose of showing his good faith in purchasing at that price, and that he acted upon the dispatch in making the purchase, but not for the purpose of showing what was the reasonable interpretation of the dispatch. Aiken v. W. U. Teleg. Co. supra.

Where the sender proves that there was unrea sonable delay, the burden of explaining the delay is on the company. W. U. Teleg. Co. v. Scircle, 1 West. Rep. 216, 103 Ind. 227: W. U. Teleg. Co. v. McDaniel, supra.

Facts which go to excuse the failure to transmit a telegraph message delivered during usual office hours, according to the regulations of the company, in a suit for the statutory penalty, must come from the defense. W. U. Teleg. Co. v. Bus

A complaint which shows a mere neglect of duty in transmitting a message is not sufficient. W. Ukirk, 5 West. Rep. 871, 107 Ind. 549.

templation of the parties, the contents of the | after it was so received, and never did deliver dispatch may be taken into consideration.

Candee v. W. U. Teleg. Co. 34 Wis. 471; Bald win v. U. S. Teleg. Co. 45 N. Y. 744; Beaupré v. Pacific & A. Teleg. Co. 21 Minn. 155; Barnesville First Nat. Bank v. W. U. Teleg. Co. 30 Ohio St. 555.

Messrs. McDonald & Butler, for appellee: The Company could not, from the information it had before it when it entered into the undertaking, know that mental anguish might and most probably would result to some person in case of failure to promptly deliver the dispatch, and for this reason appellant cannot reCover substantial damages.

W. U. Teleg. Co. v. Kirkpatrick (Tex.) 13 8. W. Rep. 70; Barnesville First Nat. Bank V. W. U. Teleg. Co. 30 Ohio St. 555; Baldwin V. U. S. Teleg. Co. 45 N. Y. 744; Beaupré v. Pacific & A. Teleg. Co. 21 Minn. 155; Landsberger v. Magnetic Teleg. Co. 32 Barb. 539; Kinghorne v. Montreal Teleg. Co. 18 U. C. Q. B. 60, Allen, Teleg. Cas. 98; U. S. Teleg. Co. v. Gildersleve, 29 Md. 232; Lowery v. W. U. Teleg. Co. 60 N. Y. 198; W. U. Teleg. Co. v. Graham, 1 Colo. 230; Pullman Palace Car Co. v. Barker, 4 Colo. 344.

Mental suffering alone, caused by simple actionable negligence, cannot sustain an action. Wyman v. Leavitt, 71 Me. 227; Hunt ads. D'Orval, Dudley (S. C.) 180; Bovee v. Danville, 53 Vi. 183; Canning v. Williamstown, 1 Cush. 451; Trigg v. St. Louis, K. C. & N. R. Co. 74 Mo. 153; State v. Baltimore & O. R. Co. 24 Md. 84; Cooley, Torts, 270-272.

Berkshire, J., delivered the opinion of the

court:

The complaint is in two paragraphs. The substance of the first paragraph is that, on the 27th day of February, 1837, the appellant delivered to the appellee's agent, at its office in Jamestown, Indiana, the following message:

it until called for by the said Clements, at the appellee's office in said City of Crawfordsville; that during all the time said message lay in the appellee's office in Crawfordsville, the appellee transmitted messages for sundry and divers other persons, and knowingly, purposely and willfully gave preference to others and to the delivery of messages to others; that the said messages so transmitted to the said sundry and divers persons did not contain intelligence of general or public interest, and were not communications for or from officers of justice; that the said Clements then had business rooms rented in said City of Crawfordsville, and was preparing to go into business only a few doors from appellee's office; that he had a postoffice box rented in the postoffice of said city through which he received his mail during the time the said message lay in the appellee's said office (the said postoffice being but a few doors therefrom); that the said Clements was well known to the postmaster and the employés in said postoffice; that it was the appellee's custom to deliver messages promptly any where within five miles of said city, payment of charges being first guaranteed.

Then follows a demand for $100, the statutory penalty, which it is claimed the appellant is entitled to recover.

The second paragraph rests upon a breach of duty because of a failure to deliver the message. It is averred that when the contract was made to send and deliver the message with the appel lee, the appellant's wife was dangerously ill, in fact at the point of death; that the said A. S. Clements, to whom the telegram was sent, was a brother-in-law of this appellant, having married his sister, and that the families were on the most intimate terms of friendship; that appellant greatly desired the prompt delivery of said message, and relied on and expected that the same would be promptly transmitted and delivered in accordance with the agree

February 21st, 1887. Jamestown, Indiana.ment stated; that the appellee and its agents To A. S. Clements:

My wife is very ill; not expected to live.
Wm. Reese.

were fully informed of said facts, and well knew the importance of the immediate delivery at the time it received the message and the said guarantee.

-and paid to the appellee the sum of twentyIt is averred that the said Clements resided five cents, the usual charge for the transmis- during said time not less than one nor more than sion of like messages to the City of Crawfords- two miles from said City of Crawfordsville; reville, and the full amount demanded for trans-ceived his mail at the postoffice in said city, and mitting said message, and at the same time the had a box in said office through which he reappellant guaranteed the payment of all expen-ceived his mail; that he had resided in and Bes incurred by the appellee in the delivery of Baid message to the person to whom it was addressed; that the appellee undertook and agreed to transmit and deliver said message promptly; that the appellee acted in bad faith and with partiality and discrimination, in that it did not transmit and deliver said message in the order of time in which it was received, but willfully and purposely postponed the transmission of said message out of its order for more than twenty days; that after the transmission of said message from the appellee's office in Jamestown, the appellee acted in bad faith, partiality and discrimination in this, that it willfully and purposely postponed the delivery of said message out of the order of time in which it was received, and did not deliver the same for more than twenty days

within said city for several years before said date, and was well known in said city; that be had then arranged to engage in business there; that the wife of the appellant died in a few days after the said message was transmitted; that if said message bad been promptly delivered, the said Clements and wife would have been present during the last sickness of appellant's wife, and in time to have conversed with her before her death, and been present until her death and burial; that by reason of their absence and of the great desire the appellant's wife bad expressed to see them before her death, the appellant suffered great uneasiness, anguish and anxiety of mind.

The court at first overruled a demurrer to each of the paragraphs, and the appellee filed an answer in three paragraphs, the first of which

was a general denial. The second paragraph applied to the first paragraph of the complaint, and the third paragraph to the second paragraph of the complaint.

The court having afterwards sustained the demurrer to the first paragraph of the complaint, this carried out of the record the second paragraph of answer.

The appell nt demurred to the third paragraph of answer, which the court overruled, and he saved an exception; he then filed a reply in general denial. The issues joined were submitted to the court without a jury, and, after hearing the evidence, a finding was made for the appellant, assessing his damages at fifty cents. The appellee then moved for a judgment against the plaintiff for costs; this motion was sustained, to which ruling the appellant reserved an exception. The court then rendered a judgment against the appellee for fifty cents, and against the appellant for costs.

We think the answer was bad, and that the demurrer should have been sustained. The second paragraph of complaint showed a good cause of action, and the court so held. Under it the appellant was entitled to more than nominal damages, and more than the sum of 50 cents, which the court allowed.

If the facts alleged in the complaint were true, the appellant was entitled to substantial damages, and the facts set up in the answer did not avoid the appellant's right to recover substantial damages under the allegations of the second paragraph of the complaint. The message was one of more than ordinary importance. Of its important character the agents of the Company at Jamestown and Crawfordsville had knowledge, for the reason that this information appeared on the face of the telegram. It was a message which denoted urgency for its delivery to the person to whom addressed, and of this fact the appellee had notice, and contracted with reference to it. It therefore became the duty of the appellee to make a prompt and reasonable effort to deliver the message to the person to whom it was The errors assigned are that the court erred addressed, and especially so, as the expense of in sustaining the demurrer to the first para- delivery was guaranteed in advance. This obgraph of the complaint, in overruling the deligation the appellee wholly and entirely failed murrer to the third paragraph of answer, and to perform, and in such failure was guilty of in sustaining the motion of the appellee for a negligence. judgment against the appellant for costs.

At the time the court reversed its ruling, and Bustaized the demurrer to the first paragraph of the complaint, the appellant saved an exception.

Although the telegram had no relation to There is not much to be said in reference to any business transaction which would have inthe demurrer to the first paragraph of the volved dollars and cents merely, this did not complaint. We are of the opinion that the justify the appellee in neglecting its duty. It averments in the said paragraph did not make had undertaken, for a valuable consideration, a case within § 1170 and 1172, Elliott's Sup-to deliver the message promptly, and its failure plement (Acts 1885), when construed with so to do, or to make reasonable effort in that 4178, Rev. Stat. 1881, and the three sections direction, was negligence and a violation of its must be construed together. undertaking.

It is claimed that the Act of 1885 repealed by The diligence which a telegraph company implication said section 4178. We do not think is required to use in the delivery of a message so. The repealing clause only repeals such will be determined, to some extent, from the laws as are in conflict with the said Act. In character and importance of the message. its scope it does not cover the subject matter to Upon humane grounds messages like the one which said section 4178 relates. There is noth- here involved should be promptly delivered, ing in the Act of 1885 regulating the distance or and should be regarded as of more importance prescribing the limits within which telegraph to the parties concerned than mere business companies shall deliver messages. Repeals by messages, and in promptness of delivery implication are not favored, and if a reasonable should have preference over messages of construction can be found which will enable the latter class. It is true there was nothing both the old and the new laws to stand, that in the telegram to indicate the kinship that exconstruction will be applied. Bush v. Ham-isted between the appellant and the person to illon Co. Comrs. (Ind.) 23 N. E. Rep. 275.

whom the message was addressed, nor did it It is not alleged that the person to whom request the presence of Mr. Clements or his the telegram was addressed resided in or within wife at the bedside of the dangerously sick sisone mile of the City of Crawfordsville. ter-in-law, but this affords no excuse to the apPenal statutes are to have a strict construc-pellee for its failure to deliver the telegram. tion, and to recover a penalty the facts stated in the pleading must clearly show a right to the penalty claimed, notwithstanding such strict construction. Hadley v. W. U. Teleg. Co. 115 Ind. 191.

The third paragraph of the answer was pleaded as a partial answer, but it was in bar of all damages except nominal damages. This paragraph, in substance, is that the appellee was not informed, when it undertook to send the message (by what appeared in the face of it or otherwise), that the appellant would suffer pecuniary loss or be damaged because of mental suffering in case of a failure to deliver the message.

The appellee was bound to know that the mes sage pertained in some way to the serious illness of the appellant's wife, and, therefore, that prompt communication with the person to whom the message was addressed was much desired, and especially so in view of the additional fact that the appellant undertook to communicate by a telegraphic dispatch.

From the information it had before it when it entered into the undertaking the appellee was bound to know that mental anguish might and most probably would come to some person in case it failed to act promptly in transmitting and delivering the dispatch, and therefore such a result was contemplated when the message