further development of said properties, and to which corporation the parties of the second part hereby subscribe and agree to pay in the sum of fifty thous and ($50,000) dollars cash, and which organization shall be duly incorporated under the statute laws of the state of Arkansas, and whose capital stock shall be issued fully paid and nonassessable.

It is

"The capital stock of said corporation shall be issued and divided as follows: The said parties of the first part are to receive one-half of said stock and the parties of the second part are to receive one-half of said stock. understood that the corporation thus formed shall refund to said second parties the amount of money paid out by them to first parties in the purchasing of said mineral rights. In the perfecting of the arrangements under this contract, it is considered and understood that the development of said properties on an extensive scale shall be carried into effect, and that no less than three fully equipped modern, 500-ton daily, plants shall be put into operation just as soon as the market by proper advertising, soliciting, yarding, etc., will justify.

"The situation being, however, that the parties of the first part are unable to furnish capital to assist in the carrying of said operation into effect, it is hereby understood and agreed, and is the chief consideration to first parties in this contract, that said second parties shall furnish or acquire for said corporation the necessary capital for said development. and to protect first parties' interests in said corporation against any and all obligations of said corporation until such time as said corporation shall have accumulation sufficient working capital to justly protect first parties' interests therein.”

Numerous errors are assigned, but in the view we have taken of this case it becomes unnecessary to discuss them separately. The writer of this opinion is inclined to the view that the contract does not meet the requirements of the statute of frauds of Arkansas, for the reason that it does not contain a sufficient description of the lands containing the mineral rights which were the subject of the contract. A majority of the court, however, are of the opinion that the description is sufficient. That objection is, therefore, overruled, and we pass to notice some of the provisions of the contract, and certain instructions given by the court to the jury.

The contract provided:

"The said parties of the second part agree to furnish for immediate use a drilling fund enough to sufficiently drill said basin, otherwise to accept same without drilling, and as said property is drilled to accept for said trustee. or his successor, the mineral rights under any and all lands in said basin, which are now and in the future may be owned, purchased, optioned, or leased by said first parties, which are shown by ordinary methods of drilling to contain a continuation of the Ouita strata or vein of coal, paying to said first parties fifteen dollars ($15.00) cash per acre for the same, upon conveyance to said trustee or successor as above."

It will thus be seen that the defendants under the contract had the option to furnish the money for drilling, in which case they were only required to take such land as, by the ordinary methods of drilling, showed the land to contain a continuation of the Ouita strata or vein of coal, or, if they declined to furnish the money for drilling, then they were to take all of the mineral rights in or under the land mentioned in the contract. The plaintiffs' suit was based upon their right to recover $15 per acre for the entire acreage, and the court instructed the jury upon the theory that they could recover for the entire acreage, and also instructed that the plaintiffs were entitled to recover for the amount which they had expended in procuring machinery, drills for drilling, and labor in connection therewith.

This instruction, under the terms of the contract, was clearly error. The plaintiffs were not entitled to recover for both the mineral rights in all of the land and also for the expense of drilling; for if the defendants elected, as the contract provided, to furnish the funds for drilling, then they were only obliged to take such part of the lands as were shown, by the ordinary methods of drilling, to contain a continuation of the Ouita strata or vein of coal.

The contract further provided:

"Upon completion of said drilling and purchase, or before if deemed advisable, the parties hereto agree to organize a corporation for the division of and further development of said properties, and to which corporation the parties of the second part hereby subscribe and agree to pay in the sum of fifty thousand ($50,000) dollars cash, and which organization shall be duly incorporated under the statute laws of the state of Arkansas, and whose capital stock shall be issued fully paid and nonassessable.

"The capital stock of said corporation shall be issued and divided as follows: The said parties of the first part are to receive one-half of said stock and the parties of the second part are to receive one-half of said stock. It is understood that the corporation thus formed shall refund to said second parties the amount of money paid out by them to first parties in the purchasing of said mineral rights."

In relation to the capital stock of this corporation, the court charged the jury as follows:

"As to the second item, the claim is the contract shows they agreed to pay for one-half of the capital paid up, $100,000, to the extent of $50,000; and the plaintiffs in their petition say that the value of that was $25,000. So they would be entitled to the value of one-half of that stock, whatever that was."

After the jury had retired they requested further instructions, and by order of court were returned to the courtroom, and the court gave them the following additional instructions:

"The court instructs you that, in addition to these damages, the plaintiffs are entitled to whatever damages they sustained. That is, if you, gentlemen of the jury, determine that the stock would have been worth $25,000 if it had been turned over to them, you may assess that. If you find it was worth less, you will assess such an amount as you think it would have been worth if the company had been organized and turned over to them. It is discretionary with you as to the amount."

This element of damages, in any possible view that may be taken of the case, was too remote. The capital stock was to be paid for, $50,000 in cash by the defendants, and by the transfer to it of the mineral rights. The corporation assumed an indebtedness. It was to repay to the defendants the amount of money paid to the plaintiffs for the purchase of the mineral rights in or under the lands specified in the contract. The value of the stock would therefore depend entirely upon the value of the mineral rights, and as to the value of the mineral rights there is not a scintilla of evidence in the case. It was error, therefore, for the court to submit the value of this stock to the determination of the jury.

For the errors noticed, the judgment must be reversed, with instruc tions to grant a new trial.

WESTERN UNION TELEGRAPH CO. v. BURRIS.

(Circuit Court of Appeals, Eighth Circuit. April 27, 1910.)

No. 3,126.

1. COURTS (§ 372*)-FEDERAL COURTS-AUTHORITY OF DECISIONS OF STATE COURTS.

Under the rule of the federal courts there can be no recovery of damages from a telegraph company for mental anguish caused by failure to deliver a message, or by delay in delivery, where that is the only ground of damage; and in the absence of statutory provisions the question is one of general law, upon which state decisions are not controlling in the federal courts.

[Ed. Note. For other cases, see Courts, Dec. Dig. § 372.*

Conclusiveness of judgment between federal and state courts, see notes to Kansas City, Ft. S. & M. R. Co. v. Morgan, 21 C. C. A. 478; Union & Planters' Bank v. City of Memphis, 49 C. C. A. 468.]

2. TELEGRAPHS AND TELEPHONES (§ 56*)-DELAY IN DELIVERY OF MESSAGERIGHT OF ACTION BY ADDRESSEE.

By the weight of authority in this country a person to whom a telegram is sent, where it is intended for his benefit or information, has a right of action against the company for negligent delay in its transmission or delivery.

[Ed. Note. For other cases, see Telegraphs and Telephones, Cent. Dig. 37; Dec. Dig. § 56.*]

3. ACTION (§ 27*)-NATURE OF CAUSE OF ACTION.

An action by the addressee of a telegram against the company for fail ure to deliver the message is not one on contract, but in tort for failure to perform a duty imposed upon defendant by law.

[Ed. Note. For other cases, see Action, Dec. Dig. § 27.*]

4. TELEGRAPHS AND TELEPHONES (§ 27*)-ACTION FOR NON DELIVERY OF MESSAGE-MENTAL SUFFERING-STATE STATUTE.

Act Ark. March 7, 1903 (Acts 1903, p. 124), making telegraph companies doing business in the state "liable in damages for mental anguish or suffering, even in the absence of bodily injury or pecuniary loss, for negligence in receiving, transmitting or delivering messages," applies only in cases where the negligence occurred within that state, and does not authorize a recovery by the addressee of a telegram for mental anguish alone because of the negligent failure to deliver the message, where the negligence occurred in another state, by the law of which there could not be such recovery.

[Ed. Note. For other cases, see Telegraphs and Telephones, Dec. Dig. § 27.*

Damages for mental suffering from delay in delivering telegram, see notes to Chicago, R. I. & P. Ry. Co. v. Caulfield, 11 C. C. A. 571; Western Union Telegraph Co. v. Coggin, 15 C. C. A. 250; Western Union Telegraph Co. v. Morris, 28 C. C. A. 62.]

In Error to the Circuit Court of the United States for the Eastern District of Arkansas.

Action by J. W. Burris against the Western Union Telegraph Company. Judgment for plaintiff, and defendant brings error. Reversed.

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

G. H. Fearons, U. M. Rose, W. E. Hemingway, G. B. Rose, D. H. Cantrell, and J. F. Loughborough, for plaintiff in error.

U. L. Meade, Jeff Davis, Frank Pace, O. T. Hamlin, and T. M. Seawel, for defendant in error.

Before SANBORN, Circuit Judge, and RINER and WM. H. MUNGER, District Judges.

RINER, District Judge. This was an action brought by the defendant in error, hereafter called the plaintiff, against the plaintiff in error, hereafter called the defendant, to recover damages for the failure to deliver a telegram. The right to recover damages in this case is based upon an act of the Legislature of the state of Arkansas passed in 1903 (Acts 1903, p. 124), which reads as follows:

"(1) On and after the passage of this act all telegraph companies doing business in this state shall be liable in damages for mental anguish or suffering, even in the absence of bodily injury or pecuniary loss, for negligence in receiving, transmitting or delivering messages.

"(2) That nothing contained in this act shall prejudice the rights and remedies now provided by law against telegraph companies, and the rights and remedies provided for by this act shall be in addition to those now existing. "(3) That in all actions under this act the jury may award such damages as they conclude resulted from the negligence of the said telegraph company."

The plaintiff, J. W. Burris, lived at Russellville, Ark. Mrs. Nora Brashear was the daughter of the plaintiff, and lived with her husband, D. W. Brashear, at Wecharty, six miles from Holdenville, Okl. Prior to the sending of the message Mrs. Brashear was taken ill, and her condition became alarming on March 12, 1908. On that date, at her husband's request, A. C. Brashear, his brother, delivered to the defendant, to be transmitted over its lines, the following telegram:

"Holdenville, Oklahoma, March 12, 1908, 3 o'clock p. m. To Mr. J. W. Burris, in care of R. C. West, Russellville, Ark. Come at once. Nora is at the point of death. A. C. Brashear."

R. C. West was a friend of the family, who lived and was engaged in business at Russellville, Ark. The telegram was correctly transmitted to the city of St. Louis, Mo., through the several relay offices of the defendant, where the destination of the message through mistake or negligence was changed from Russellville, Ark., to Russellville, Ky., and the message was forwarded to the latter place, and never received by the defendant. It was not within the state of Arkansas in the course of its transmission. On March 14th the plaintiff was notified over long-distance telephone of the serious illness of his daughter, and he immediately left Russellville for Holdenville, Okl., arriving there on the morning of March 16th, and after the death of his daughter, which occurred on the evening of March 15th. She was buried on the afternoon of the day of his arrival, and he attended the funeral.

The petition contained the following allegations:

"Plaintiff, further complaining of defendant, alleges: That said message so delivered to the agent of the defendant at Holdenville, Okl., by A. C. Brashear, and received by said agent, was, through the carelessness and neg

ligence of said agent, missent. That, by reason of the negligence and carelessness and wrongs herein alleged and complained of, plaintiff was deprived of the comfort, satisfaction, and pleasure of seeing and talking to his daughter before her death, to his great mental anguish, grief, and suffering of mind and feelings"-for which he claimed damages in the sum of $2,500.

The court directed a verdict in favor of the plaintiff upon the question of negligence, and submitted the question of the damages to be allowed plaintiff to the jury. The instruction was as follows:

"For these reasons, the court felt it its duty, under the laws of this state, to direct a verdict for the plaintiff. This leaves only one question to be determined by you, gentlemen of the jury, and that is the question of what the damages shall be."

The action is to recover damages for mental anguish alone; no claim being made that there was any personal injury or pecuniary loss. Prior to the case of So Relle v. Telegraph Company, 55 Tex. 308, 40 Am. Rep. 805, decided in 1881, the authorities were uniform to the effect that, in the absence of a statute, mental anguish alone, unaccompanied by personal injury or pecuniary loss, did not constitute a basis for the recovery of damages; but in that case a new doctrine in the law of damages was announced. It was there held by the Supreme Court of Texas that the plaintiff might recover damages for delay in delivering a telegram, though the injury sustained was solely mental anguish. The So Relle Case was in part overruled in the case of Railroad Company v. Levy, 59 Tex. 563, 46 Am. Rep. 278, and another case by the same title, 59 Tex. 542, 46 Am. Rep. 269; but in a later case (Stuart v. Telegraph Company, 66 Tex. 580, 18 S. W. 351, 59 Am. Rep. 623), the cases of Railroad Company v. Levy were in effect overruled, and the doctrine of the So Relle Case reinstated. So that, while it cannot be said that the So Relle Case has been at all times consistently followed, yet we think it is true that since the case of Stuart v. Telegraph Company, supra, by the decisions of the Supreme Court of that state, damages may be recovered in such a case. Railway Company v. Wilson, 69 Tex. 739, 7 S. W. 653; Telegraph Company v. Cooper, 71 Tex. 507, 9 S. W. 598, 1 L. R. A. 728, 10 Am. St. Rep. 772; Telegraph Company v. Broesche, 72 Tex. 654, 10 S. W. 734, 13 Am. St. Rep. 843; Telegraph Company v. Simpson, 73 Tex. 423, 11 S. W. 385.

The same view has been taken by the Supreme Courts of Indiana, Alabama, Kentucky, Tennessee, and North Carolina; Wadsworth v. Telegraph Company, 86 Tenn. 695, 8 S. W. 574, 6 Am. St. Rep. 864; Reese v. Telegraph Company, 123 Ind. 294, 24 N. E. 163, 7 L. R. A. 583; Telegraph Company v. Henderson, 89 Ala. 510, 7 South. 419, 18 Am. St. Rep. 148; Thompson v. Telegraph Company, 106 N. C. 549, 11 S. E. 269; Chapman v. Telegraph Company, 90 Ky. 265, 13 S. W. 880.

The Texas doctrine has not been generally followed, for various reasons stated by the courts, among which are: (1) That it is a departure from the sound and safe principles of the common law; (2) that the difficulty of estimating a pecuniary compensation for mental anguish is in itself a sufficient reason for adhering to the common-law