rule preventing a recovery in such cases; (3) that the amount of litigation which would grow out of the adoption of such a rule would be intolerable; (4) that the measure of damages to be adopted would be so indefinite and so indefinable as to subject the defendant in such cases to the possibility of great oppression; and the difficulty of securing evidence as to the mental suffering is stated in some of the cases as another reason why mental anguish should not be made the sole basis of an action.

The federal courts have uniformly refused to sanction the recovery against a telegraph company for mental anguish caused by delay in delivering a message, where that is the only ground of damage. Chase v. Telegraph Company (C. C.) 44 Fed. 454, 10 L. R. A. 464; Crawson v. Telegraph Company (C. C.) 47 Fed. 544; Tyler v. Telegraph Company (C. C.) 54 Fed. 634; Kessler v. Telegraph Company (C. C.) 55 Fed. 603; Gahan v. Telegraph Company (C. C.) 55 Fed. 443.

In the case of Telegraph Company v. Wood, 57 Fed. 474, 6 C. C. A. 432, 21 L. R. A. 706, the court held that the question of the liability of the telegraph company for the failure to deliver a message promptly is one of general law, as to which, in the absence of statutory provisions, the decisions of the state courts are not controlling in the federal courts, and in that case, although the action originated in Texas, the court refused to follow the Texas decisions. Without attempting a full review of the authorities following the rule announced by the federal courts, we cite the following: Telegraph Co. v. Rogers, 68 Miss. 748, 9 South. 823, 13 L. R. A. 859, 24 Am. St. Rep. 300; Russell v. Telegraph Co., 3 Dak. 315, 19 N. W. 408; Connell v. Telegraph Co., 116 Mo. 34, 22 S. W. 345, 20 L. R. A. 172, 38 Am. St. Rep. 575; Kester v. Telegraph Co., 8 Ohio Cir. Ct. R. 236; Summerfield v. Telegraph Co., 87 Wis. 1, 57 N. W. 973, 41 Am. St. Rep. 17; West v. Telegraph Company, 39 Kan. 93, 17 Pac. 807, 7 Am. St. Rep. 530; Chapman v. Telegraph Co., 88 Ga. 763, 15 S. E. 901, 17 L. R. A. 430, 30 Am. St. Rep. 183; Francis v. Telegraph Co., 58 Minn. 252, 59 N. W. 1078, 25 L. R. A. 406, 49 Am. St. Rep. 507; Peay v. Western Union Telegraph Co., 64 Ark. 538, 43 S. W. 965, 39 L. R. A. 463. We think the rule announced by the federal courts and by the courts of last resort in the states just mentioned is in all respects sound, and therefore that the plaintiff's right to recover depends wholly upon the statute of Arkansas. It is the rule in England, and has been held by some of the courts in this country, that the addressee of a telegraphic message cannot maintain an action against the company for delay in delivering the message upon the ground that there was no privity of contract between the addressee and the telegraph company, unless where the company had some notice that the contract was made for his benefit. Telegraph Company v. Wood, 57 Fed. 471, 6 C. C. A. 432, 21 L. R. A. 706, and Telegraph Company v. Henderson, 89 Ala. 510, 7 South. 419, 18 Am. St. Rep. 148, supra. But in most of the states it is held that the 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 and delivery. Telegraph Co. v. Dubois, 128 Ill. 248, 21 N. E. 4, 15 Am. St. Rep. 109; Harkness v. Telegraph Co., 73 Iowa, 190, 34 N. W. 811, 5 Am. St. Rep. 672;

Elwood v. Telegraph Co., 45 N. Y. 549, 6 Am. Rep. 140; Telegraph Co. v. Dryburg, 35 Pa. 298, 78 Am. Dec. 338; Aikin v. Telegraph Co., 5 S. C. 358; Markel v. Telegraph Co., 19 Mo. App. 80; Telegraph Co. v. Wilson, 93 Ala. 32, 9 South. 414, 30 Am. St. Rep. 23; Chapman v. Telegraph Co., 90 Ky. 265, 13 S. W. 880; Young v. Telegraph Co., 107 N. C. 370, 11 S. E. 1044, 9 L. R. A. 669, 22 Am. St. Rep. 883. The reason generally assigned is that a telegraph company is a public agency, and as such is bound to exercise ordinary care in receiving, transmitting, and delivering messages, and is, therefore, responsible to any one injured by its negligence.

The action here is to recover damages for mental anguish because of the negligence of the defendant in failing to deliver the telegram, and it is therefore not an action upon contract, but in tort. The tort which is the gist of the action is the negligence of the defendant in failing to perform a duty imposed upon it by law. Western Union Telegraph Co. v. Dubois, 128 Ill. 248, 21 N. E. 4, 15 Am. St. Rep. 109; Shingleur v. Western Union Telegraph Co., 72 Miss. 1030, 18 South. 425, 30 L. R. A. 444, 48 Am. St. Rep. 604; New York Printing Telegraph Co. v. Dryburg, 35 Pa. 298, 78 Am. Dec. 338; Herron v. Western Union Telegraph Co., 90 Iowa, 129, 57 N. W. 696; Western Union Telegraph Company v. Ford, 77 Ark. 536, 92 S. W. 528. In the case last cited the court said:

"In fact, the right of an addressee to recover damages at all is not based upon contract, as none exists."

And while allowing a recovery in that case, because of the negligence of the defendant in failing to deliver the message, it was put upon the ground that the negligence occurred in the state of Arkansas; but the court expressly declined to decide what the effect would be if the negligence occurred in a state other than the state of Arkansas.

In the case of Western Union Telegraph Company v. Crenshaw, 125 S. W. 420, decided by the Supreme Court of Arkansas February 7, 1910, not yet officially reported, the court said:

"Under our statute there can be no recovery of damages for mental anguish unless there has been negligence 'in receiving, transmitting or delivering the message.' The purpose of our statute was to allow recovery for mental anguish only in such cases."

After expressing the view that no negligence had been established in the case, the court further said:

"But if negligence was shown, then the negligence occurred in Missouri, and no recovery could be had in Missouri for mental anguish alone. The contract itself was not made in this state, nor in a place where there could be a recovery for mental anguish, unaccompanied by physical injury. The negligence, if any, which gave a cause of action under the statute for mental anguish, did not occur in this state, or in any state where damages for mental anguish alone could be recovered. We conclude, therefore, that in no possible view of the case was the appellee entitled to recover."

If the action is one in tort, and we think it is, the plaintiff's right of recovery is governed by the law of the state wherein the act of negligence occurred. It is not charged in the complaint that the negligence of the defendant occurred in Arkansas, and we think the testimony shows that the negligence occurred at St. Louis, in the state of Mis

souri, and this was evidently the view of the trial judge, for he instructed the jury that:

"When it [referring to the message] reached St. Louis it seems to have been directed to Russellville, Ky.; at least the telegrapher who received it there thought it was intended for Russellville, Ky., and thereupon he sent it to Russellville, Ky., and, of course, found no one there by the name of the addressee."

It is conceded that under the laws of Missouri, where the negligence occurred, there can be no recovery for mental anguish alone, unaccompanied by personal injury or pecuniary loss. This being true, the plaintiff is not entitled to damages by reason of the negligence of the defendant occurring in that state.

The view we have taken of this case renders it unnecessary to discuss the other questions suggested by counsel in their briefs.

The judgment is reversed, with instructions to grant a new trial.

PIKE et al. v. CINCINNATI REALTY CO.

(Circuit Court of Appeals, Sixth Circuit. May 3, 1910.)

No. 2,002.

1. LANDLORD And Tenant (§ 156*)—ConstRUCTION OF LEASE for LONG TERM -DESTRUCTION OF BUILDINGS BY FIRE-REBUILDING-PROCEEDS OF INSURANCE IN THE SAME CONDITION."

Improved city real estate left in trust by a will was leased for 99 years by authority from the court; the lease providing that the lessee should maintain the property in good condition and repair, that he should not remove nor destroy the improvements, that if he should cause improvements, repairs, or changes to be made he should "replace old improvements by new ones of equal value and fully as substantial," and that he should maintain insurance on the property, payable to the trustee of the estate, "for the use and benefit" of the beneficiaries under the will. It further provided that, should there be a partial or total loss of the buildings and improvements, the insurance money collected therefrom should "be applied and expended to replace said improvements upon said property in the same condition as before said damage occurred." Held, that such provisions were intended principally to afford security for the rent and the restoration of the property in unimpaired condition at the end of the term, and should be construed together with that purpose in view; that the provision that the insurance money should be used to replace the improvements "in the same condition" as before did not require the lessee, after the buildings had been destroyed by fire, to rebuild them in the same form as the old, but that his obligation was only to replace them with new ones "of equal value and fully as substantial," for which purpose he was entitled to the insurance money; nor did such provisions warrant the trustee, after collecting the insurance, and when the lessee was proceeding to build a large hotel on the property of four or five times the value of the old buildings, in refusing to pay over the insurance money on the ground that the beneficiaries did not approve of the building.

[Ed. Note. For other cases, see Landlord and Tenant, Cent. Dig. § 567; Dec. Dig. 156.*]

•For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 179 F.-7

2. LANDLORD and Tenant (§ 156*)-CONSTRUCTION OF LEASE FOR LONG TERM -REBUILDING AFTER FIRE.

Neither the fact that the estate owned a hotel in the vicinity with which the new one would come into competition, nor the fact that the new hotel also covered a lot not owned by the lessor estate, was a ground for the withholding of the insurance money by the trustee, in the absence of any such condition in the lease; it being shown that the part of the building on the leased property largely exceeded in value the old buildings, and that, if necessary at the end of the term, it could be separated from the remainder and made into a completed building at comparatively small expense.

[Ed. Note. For other cases, see Landlord and Tenant, Cent. Dig. § 567; Dec. Dig. § 156.*]

3. TRUSTS (§ 315*)-COMPENSATION OF TRUSTEE-PAYMENT FROM FUND.

The practice of compensating a trustee out of a fund for his services in the care of it has no application to a case where he is simply subserving the interest of one party in a contest for possession of the fund. [Ed. Note. For other cases, see Trusts, Cent. Dig. §§ 433, 440; Dec. Dig. § 315.*]

Appeal from the Circuit Court of the United States for the Western Division of the Southern District of Ohio.

Suit in equity by the Cincinnati Realty Company against Ellen M. Pike, executrix and trustee, and others. Decree for complainant, and defendants appeal. Modified and affirmed.

F. B. James and John McMahon, for appellants.
F. O. Suire and Drausin Wulsin, for appellee.

Before SEVERENS, WARRINGTON, and KNAPPEN, Circuit Judges.

SEVERENS, Circuit Judge. The bill in this case was filed to obtain a decree requiring the appellant to turn over a fund which had come to his possession from insurance companies on account of the loss by fire of buildings situated on premises in Cincinnati, leased under and by the authority of a decretal order of the court of common pleas for 99 years, with a privilege of renewal and an option to purchase, by Albert C. Barney as the representative of certain beneficiaries of the will of Samuel N. Pike, deceased, to Powel Crosley, whose title. has since been acquired by the Cincinnati Realty Company, the complainant in the suit. The right of the respective parties to this fund. depends upon the due construction of various clauses in a paragraph of the lease which are here set forth:

"And the said lessee, for himself, his heirs and assigns, further covenants and agrees with the said Albert C. Barney, for and on behalf of the parties aforesaid, that he will at all times keep said property sound, tight, and thorough good repair; that he will not remove or destroy the improvements now on said property; and that if he shall cause improvements, repairs, or changes to be made upon said property, he will at all times replace old improvements by new ones of equal value and fully as substantial; and, further, that said lessee, on behalf of himself, his heirs and assigns, further agrees that he will at all times during the continuance of this lease keep said improvements, or the buildings thereon, and the rents thereof, insured in good and solvent insurance companies for not less than one hundred and sixty-five thousand dollars, to be made payable to said Ellen M. Pike, trustee, or to her successors in said trust, for the use and benefit of the parties entitled to the For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

same under the will of said Samuel N. Pike, deceased. It is further covenanted and agreed that should any partial or total loss of buildings or improvements occur and insurance money be collected therefrom, that said insurance money shall be applied and expended to replace said improvements upon said property in the same condition as before said damage occurred." Other parts of the lease, and the circumstances leading up to and attending the making of it, which are supposed by counsel to aid in the construction of the stipulations contained in the paragraph above quoted, are to be referred to. As we have said, the lease was made under a decree of the court of common pleas. But we attach no particular importance to that fact in the construction of the lease. The authority to make it is not questioned, and, when made, we think it is subject to the ordinary rules of interpretation. During the pendency of the lease, the buildings on the premises were insured in the sum of $165,000 by the lessee, and the loss made payable to Ellen M. Pike, who was then trustee of the estate. Later on they were almost totally destroyed by fire and the losses were collected by her. Before she had completely collected the losses, the Cincinnati Realty Company, having obtained an assignment of the lease, was preparing to build, in the place of the buildings which had been destroyed, the large building now known as the "Sinton Hotel," the cost and value of which was many times greater than the value of the buildings which had been. destroyed. Mrs. Pike, the trustee, after having devoted a small part to the repairing of a partly burned building on the leased property, refused to pay over the remaining bulk of the insurance money on demand by the Realty Company upon the ground that she and the beneficiaries, of whom she was one, did not agree to the structure which the Realty Company was preparing to build; and they have since maintained that attitude. If this position of the trustee is defensible, he might hold on to this money indefinitely unless the lessee should. erect other buildings or should reconstruct the hotel in such form as would conform to the views of the lessors.

In support of the position taken by the trustee, his counsel point to, and chiefly rely upon, the final stipulation in the foregoing paragraph, wherein it is provided that, if any insurance money should be collected, it "shall be applied to replace said improvements upon said property in the same condition as before said damage occurred"; and they say that "the same condition" means the same forms of buildings and structures as before the fire. We do not so interpret this language. It seems to us to refer to the state, quality, or predicament of the buildings, etc., rather than to the structures themselves. This construction harmonizes with the other stipulations in the contract, while the other can only with difficulty be reconciled with them. In the first place, it is stipulated that the improvements on the premises should be kept in "thorough good repair"; then that the lessee shall not remove or destroy the improvements then on said property. This concerns his own acts. Next, apprehending that destruction from other causes than the lessee's own act might occur, as from fire, it is provided "that if he shall cause improvements, repairs, or changes to be made upon said property, he will at all times replace old improvements by new ones of equal value and fully as substantial" as the old. There is fair ground for believing that this last stipulation was intended to cover all kinds