of Methvin v. Fidelity Mutual Life Insurance Association (Cal.) 58 Pac. 387, as an authority to sustain the judgment of the court below. That decision, however, was not final; a rehearing being granted, on which the three justices who in department had rendered the decision joined with the other members of the court in bank in a unanimous decision which is in full accord with what we now decide. 129 Cal. 251, 61 Pac. 1112. In that case the policy was dated July 30, 1895, and called for quarterly premiums beginning on that date, and provided that it should not be binding until delivered and the first premium paid, and on failure to pay any premium when due the policy should be "ipso facto nul and void." The policy was not delivered nor the first premium paid until September 3d. The insured died after October 30, 1895, without paying the second quarterly premium. The holding of the Supreme Court of California is that the policy became void prior to the death of the insured, since the second quarterly premium became due October 30, 1895.

The court erred in overruling the general demurrer.

Judgment reversed.

Judge LITTLEJOHN, of the Southwestern circuit, Judge ROAN, of the Stone Mountain circuit, and Judge HAMMOND, of the Angusta circuit, were designated to preside instead of the judges of this court, who were disqualified.

SOUTHERN RY. CO. v. ROSENHEIM & SONS. (No. 301.)

(Court of Appeals of Georgia. May 9, 1907.) 1. CARRIERS-LOSS OF BAGGAGE-ACTION— DECLARATION.

A declaration against a railway company, merely alleging the delivery of certain trunks and their contents into its custody and a failure to redeliver, but not alleging that the trunks were to be transported or carried as baggage or otherwise, does not set out a cause of action against the railway company as a carrier of baggage, but only as a warehouseman or a depository.

2 SAME-LOSS BY FIRE.

One who, having been a passenger, arrives with his baggage at destination, surrenders his checks, opens up the trunks in the baggage room, and afterwards leaves the trunks in the baggage room by permission of the baggage clerk, upon a statement that he will be going off again next day and will then recheck them, cannot hold the railway company responsible as a carrier of baggage, for the destruction of the trunks by fire during the night.

(a) The transaction, if not merely a personal one between the owner of the trunks and the baggage clerk, charges the railway company with no higher responsibility than that of a depository.

(b) This is so notwithstanding the owner of the trunks may have been the holder of a mileage book, good for transportation on the railway company's trains.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 9, Carriers, § 1543.] (Syllabus by the Court.)

58 S.E.-6

Error from City Court of Savannah; Norwood, Judge.

Action by Rosenheim & Sons against the Southern Railway Company. Judgment for plaintiffs, and defendant brings error. Reversed.

Osborne & Lawrence and Edmund H. Abrahams, for plaintiff in error. Garrard & Meldrim, for defendants in error.

POWELL, J. 1. Rosenheim & Sons sued the Southern Railway Company and recovered a verdict. The plaintiffs' declaration, omitting merely formal parts, is as follows: "(1) That the Southern Railway is a railroad corporation, having an office and agent for the transaction of its usual and customary business in the city of Savannah, county of Chatham, and state of Georgia. (2) That on the 6th day of February, 1905, the said defendant then was and still is a common carrier of passengers for hire, and as such common carrier of passengers for hire had, on the 7th day of February, 1905, its depot at Waynesville, in the state of North Carolina. (3) That on said 7th day of February, 1905, at Waynesville, in the state of North Carolina, in consideration that the plaintiffs would deliver to the defendant certain goods of the plaintiffs (more fully set out in an inventory hereunto annexed, marked 'Exhibit A') to be by the defendant safely and securely kept and redelivered to the plaintiffs on request, the said defendant promised the plaintiffs safely and securely to keep the said goods and to redeliver the same to the plaintiffs on request, and the plaintiffs delivered to the defendant and the defendant received the said goods for the purpose and on the terms aforesaid, and the plaintiffs afterwards, and within a reasonable time in that behalf, requested the defendant to redeliver the same to the plaintiffs, and all conditions were performed, and all things happened, and all times elapsed necessary to entitle the plaintiffs to have the said goods safely and securely kept and redelivered by the defendant to the plaintiffs as aforesaid; yet the defendant did not safely and securely keep the same and redeliver the same to the plaintiffs as aforesaid, whereby the said goods were wholly lost to the plaintiffs, to the damage of the plaintiffs in the sum of $491.02, besides interest." Wherefore judgment is prayed, etc. The plaintiff's contend that this declaration sets out a case of liability against the defendant for a breach of its duty as a common carrier by the loss of a passenger's baggage, and insist that it is apt in form and substance for that purpose. The able and experienced attorney who appeared for the plaintiffs in this court also claims that the declaration is substantially in the form prescribed by Chitty. We think it plain that it sets out no such cause of action. It does not allege that the goods were delivered for the purpose of being carried by the defendant; and this is an es

sential allegation of Chitty's form in such actions. Chitty on Pleadings, *356. The suit, as we are constrained to view the declaration, is merely for a breach of a contract of bailment.

2. The evidence was likewise insufficient to sustain a verdict holding defendant liable as for the loss of passenger's baggage. Adams was a traveling salesman for Rosenheim & Sons. He lived at Waynesville, N. C. He arrived there on the defendant's train, Sunday afternoon, February 5, 1905, and with him came his trunks as baggage. The next morning he surrendered the checks, took charge of the trunks, opened them up in the depot, and sold a customer a bill of goods from the samples contained therein. He did not take the trunks away, but left them in the storage room of the depot, telling the agent, who also performed the duties of baggage clerk, that he would be going off again next morning to Addie, or to some other place west, and that he would leave them in the storage room over night and check them the next morning. The train next morning was due at 9:15 o'clock. That night the depot was burned, and the trunks and their contents were thereby destroyed. Adams had a mileage book, good on the Southern Railway. The trunks and their contents belonged to Rosenheim & Sons. The court charged the jury that under these circumstances, if the agent consented to the trunks remaining in the depot overnight, the company would be liable, unless the fire was occasioned by act of God. At common law, as well as by the law of this state, no excuse avails a carrier for the loss of the baggage of one who sustains to it the relation of passenger, except act of God, irresistible accident, or destruction by public enemy. Civ. Code 1895, § 2280; Dibble v. Brown, 12 Ga. 217, 56 Am. Dec. 460. A similar rule prevails in North Carolina. See Revisal 1905, § 2624. For baggage in possession of the carrier, and not within the protection of the above rule, the liability of the carrier is that of a depository for hire (warehouseman), with the duty of only ordinary diligence, or that of a naked depository, with responsibility attaching only in a case of gross negligence, according to the circumstances of the case. Georgia R. Co. v. Thompson, 86 Ga. 328, 12 S. E. 640. See, also, Civ. Code 1895, §§ 2921, 2922, 2928. We presume that the same rule prevails in North Carolina, as it is a matter of general law. If there has been no delivery to the carrier, but his agent, without authority, agrees to take care of the baggage as a matter of accommodation, the agent pro hac is the agent of the owner of the baggage, and not of the carrier, and no responsibility against the latter attaches to the transaction. Georgia R. Co. v. Thompson, supra. A baggage clerk has implied authority to receive baggage on behalf of the carrier only for a reasonable time prior to the departure of the train on which it is to be carried. Hutch.

Carr. (3d Ed.) § 1256; Lake Shore Ry. Co. v. Foster, 104 Ind. 315, 4 N. E. 20, 54 Am. Rep. 319.

From the instructions to the jury, appearing in the record, it is manifest that the trial court entertained the view that because Adams had a mileage book, good on the defendant's lines of railway, he was entitled to the rights of a passenger as to these trunks and their contents. Let us see if any such relation was sustained: "The owner of the property must, of course, stand in relation of passenger to the carrier, in order to fix upon him liability as a carrier of baggage. The carriage of the baggage is ex vi termini incidental to the carriage of the owner as a passenger." Hutch. Carr. (3d Ed.) § 1274; Atlanta Terminal Co. v. American Baggage Co., 125 Ga. 677, 54 S. E. 711. "The passenger has the right to deliver his baggage to the carrier such time before the starting of the train upon which he intends to take passage as may be reasonably necessary for obtaining a ticket and checking the baggage. From the time delivery is thus made, the carrier will be responsible for its safety as a common carrier. If, however, an earlier delivery to the carrier be made, his custody will be that of a warehouseman only, unless he has consented to hold it subject to his commonlaw liability. But the question as to when the carrier's liability as such with respect to baggage will begin will frequently depend upon his custom or manner of doing business at the particular station where it is received, and in order to impose upon the carrier the liability of an insurer of the baggage, it must be delivered to and accepted by an agent who is authorized to receive it, or delivery must be made under such circumstances that an acceptance by the carrier will be implied." Hutch. Carr. (3d Ed.) § 1281. The mere fact that one has a ticket, or that he has paid the price of transportation, or that he has made a contract of carriage, does not render him in all cases a passenger. He must have submitted himself to the carrier's protection and have imposed upon himself an obligation to the carrier for performance of his own side of the contract of carriage. "But so long as the party merely entertains the wish or intention, no obligation has arisen on either side, and he is at liberty to change that intention at any moment." Hutch. Carr. (3d Ed.) § 1015; Webster v. Fitchburg R. Co., 161 Mass. 298, 37 N. E. 165, 24 L. R. A. 521, and cases cited in the footnote; Central R. Co. v. Perry, 58 Ga. 461. In the Webster Case the person alleged to be a passenger had a 10-trip ticket, which establishes a similarity to this case, wherein Adams had a mileage book.

We think it manifest that Adams did not, under the facts stated, place or intend to place himself under the obligations of a passenger at the time he left the baggage in the depot. His intention to do so on the morrow did not place the carrier under the immediate

duty. He did not ask for a check for his baggage then, although the North Carolina statute prescribes that "a check shall be affixed to every parcel of baggage when taken for transportation by the agent of a railroad company, and a duplicate thereof given to the passenger." Revisal 1905, § 2623. If the agent had checked the baggage, the carrier would have had a lien upon it, not only for the freight thereon, but also for the owner's transportation to the point to which it was checked. Adams was not in a position at that time to make a definite contract on this subject; for he had not then decided whether he was going to Addie, or to some other place, on the next morning. It is true he had a mileage book, and that he was in a position to claim transportation for himself on the company's trains, and to have his baggage placed in the company's responsibility a reasonable time in advance of the departure of the train on which he should elect to travel; but the mere possession of this mileage book did not hold him in the relation of a passenger, wherever he might be, but only at such times and under such circumstances as it was reasonable for the relation to be regarded as existing. What a mileage book is falls within common knowledge. It may be that prior to the enactment of our anti-pass law the judiciary of this state did not have sufficient personal information as to mileage books to take accurate judicial cognizance of them; but now the judges share with the general public this common knowledge. A mileage book is a contract of carriage, having attached thereto coupons, one for every mile; each coupon being in two parts, one part for the passenger's fare, the other for his baggage. When the baggage is checked, the baggage portion of sufficient coupons, according to the distance, is torn off; and no more baggage can be checked upon the mileage book until the remainder of these coupons, representing the carriage of the passenger, has been detached. This explains why Adams naturally did not wish to check his baggage before he definitely decided where he was going. It would have cost him something to have changed his mind or to have abandoned the trip. It was not bad business judgment for him, under the circumstances, to leave the trunks in the care of the depot agent overnight at his own risk, instead of placing them in the company's care and paying for the resulting protection by a surrender of baggage coupons out of his mileage book; but, having taken this risk, neither he nor his employers, who actually owned the trunks and their contents, but who must claim through him, can now charge the railway company with a liability which he was unwilling to pay them to assume. Applying the facts as they appear in the record to the law as we find it, we are constrained to hold that the transaction was either a personal one between Adams and the station agent, or, if there was enough in the circum

stances to make the agent's custody that of the railway company, the latter held the trunks as a mere naked depository; and in neither event is the railway company liable for the loss, no gross negligence appearing. Judgment reversed.

GLENN v. WESTERN UNION TELEGRAPH CO. (No. 67.)

(Court of Appeals of Georgia. March 2, 1907.) 1. TELEGRAPHS-FAILURE TO DELIVER MESSAGE-ACTION BY WIFE-DAMAGES.

As a wife cannot maintain an action to recover the earnings of her husband, it follows that she cannot recover damages for wages or salary he might have earned but for a defendant's tort or negligence. Consequently an allegation that "by reason of defendant's negligence aforesaid she was specially injured and damaged * * the amount of his salary for 12% months as a member of the police force, which her husband would have received and contributed to the support of his family but for the defendant's negligence aforesaid," was properly stricken on demurrer. 2. DAMAGES-MENTAL ANGUISH.

#

Under the decisions in Chapman v. Western Union Telegraph Company, 15 S. E. 901, 17 L. R. A. 430, 30 Am. St. Rep. 183. 88 Ga. 763, and Giddens v. Western Union Telegraph Company, 35 S. E. 638, 111 Ga. 824, there can be no recovery in this state for mere mental pain and anguish; and this court is bound by these decisions. This court, however, does not, on principle, approve the doctrine therein, but yields to these decisions only because by law it is obliged so to do, and respectfully suggests legislation upon this subject.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Damages, § 100.]

3. TELEGRAPHS FAILURE TO DELIVER MESSAGE-NOMINAL DAMAGES.

It was error to sustain a general demurrer to, and dismiss, a petition which set forth a breach of contract implied from public duty on the part of defendant, and which, if proved, would entitle the plaintiff to recover nominal damages, if no more.

(Syllabus by the Court.)

Error from City Court of Macon; Hodges, Judge.

Action by Mattie J. Glenn against the Western Union Telegraph Company. Judgment for defendant. Plaintiff brings error. Reversed.

Nottingham & McClellan, for plaintiff in error. Joseph H. Hall and Warren Roberts, for defendant in error.

RUSSELL, J. The plaintiff in error filed the following petition:

"Mattie J. Glenn, hereinafter designated as 'plaintiff,' against the Western Union Telegraph Company, hereinafter designated as 'defendant,' brings this complaint, and to this honorable court respectfully showeth as follows, to wit:

"(1) Defendant is a corporation engaged in the operation of a system of telegraph lines through various sections of this country, embracing, among other fields covered, the territory in, through, and from the cities of Macon, state of Georgia, to Memphis, state

of Tennessee, and was such corporation and so engaged on the occasion and dates hereinafter named.

"(2) The business of defendant as it so was on the dates hereinafter specified is the immediate transmission and delivery of intelligence from point to point on its various lines by electricity; said defendant holding itself out to the public as undertaking, for hire at such rates and charges as it fixed, to promptly transmit and deliver such messages as may be delivered to it.

"(3) Defendant is and was, on dates and occasions hereinafter named, conducting its said business in said county of Bibb, state of Georgia, aforesaid, and has, and on said dates and occasions had, in said state and county an agent, an agency, and a place of business.

"(4) Defendant has injured and damaged plaintiff in the full sum and amount of $3,000, in manner and form and by reason of facts hereinafter set forth, for that:

"(5) For many years prior to the 18th day of July, in the year 1903, plaintiff, together with her husband, R. E. Glenn, her children, and her mother, was a resident citizen of the city of Macon aforesaid, where her said family lived happily, being lovingly provided for by her said husband, his only source of rev enue being his position as a member of the police force of said city, at a monthly salary of $70; said income being the only means of living possessed by said family.

"(6) On said last-named date her said husband, in a remarkable and unusual spirit of anger, left his home and family; and for a period of about nine months remained so absented.

"(7) Two days after her said husband's departure, plaintiff received through defendant, by its messenger boy, a telegram from her husband, of which the following is a copy: 'Memphis, Tenn., July 20, 1903. Mrs. R. E. Glenn, 202 Cole St., Macon, Ga. Have just gotten right see mayor about job, answer at my expense care Western Union Telegraph Co. R. E. Glenn. 2:40 p. m.'

"(8) On the envelope inclosing said message was written by defendant's agent in said Macon, Ga., these words: 'Please send reply by bearer.'

"(9) Plaintiff then and there immediately penned the following reply to her husband's said telegram: 'Macon, Ga. July 20, 1903. R. E. Glenn, care Western Union Telegraph Co., Memphis, Tenn. Job all right. Moseley just left and told me so. Been in bed two days. Thank God you are coming. Hun.'

"(10) Plaintiff, having ascertained that her said husband's said position on the police force was still open for him, wrote the above message, as a reply to said message received from him, gave it to the bearing messenger boy, as instructed, to be delivered to the office and agent of defendant in said city of Macon, for transmission to her said husband.

"(11) Plaintiff confidently expected her said

husband to immediately return home upon receipt of her said message answering his; but as the days wore on, and after her husband, as she has since learned, had left Memphis in despair of any reconciliation with her, and hopeless of recovering his said position on the police force, to her consternation and horror she discovered that defendant had negligently failed to transmit her said message within a reasonable time, and in time to reach her said husband while he was yet in the city of Memphis, and in fact had utterly failed to transmit, or even start, said message from said Macon office.

"(12) Long thereafter, some nine months, plaintiff, after having vainly inquired by letters, telegrams, and otherwise, for the whereabouts of her said husband, found that he was in Ft. Worth, Tex., where, in the month of March, 1904, she was enabled to reach him with a letter.

"(13) As soon as her said husband received her letter, and as soon as he could recover from an illness that was then upon him, he promptly returned to his home and family in the said city of Macon, and in a few months thereafter resumed his position on the police force, as aforesaid.

"(14) Had defendant received her said message he would have promptly returned to his home, family, and position.

"(15) After her husband's final return, plaintiff learned for the first time the exact condition of affairs which had for so long cruelly separated her husband from his home and family; learned, and here charges, that for several days after sending his said message to her, to wit, from Monday, July 20, 1903, to the Thursday following, her said husband had literally haunted the office and agency of defendant in the said city of Memphis, visiting same several times day and night, vainly inquiring for an answer to his said message, for which he had prepaid the charges, and finally, in despair of both reconciliation with her and recovering his position in said city of Macon, had gone to other parts of the country in search of work.

"(16) Plaintiff here charges defendant with negligence in failing to transmit her said message to her husband, and charges that said negligence was the proximate cause of depriving her of the companionship, protection, and support which her said husband afforded her and her family when with them.

"(17) Plaintiff charges that the negligence of defendant aforesaid was the direct and proximate cause of her husband's failing to return to his home and family, and his failing to have and hold his said position on the police force of Macon, from the said 20th day of July, 1903, to about the first part of August, 1904, when he was restored to his said position.

"(18) Plaintiff shows that the conduct of defendant, in failing to transmit her said message, which was delivered to defendant about 3 p. m. on the said 20th day of July,

1903, was attended with aggravating circumstances, for which she asks exemplary damages, in addition to the general and special damages she is entitled to recover, under the law and facts.

"(19) Plaintiff shows that the circumstances show that defendant was abundantly put upon notice of the purpose and importance of her message, both to her husband and herself, and submits, as part of the facts bringing home said notice to defendant, the prepayment by her husband of the charge of transmitting her said answer, his information to defendant's agent at Memphis at the time of its importance, the message to her on envelope as aforesaid, and the very wording of her message, as well as the wording of both her husband's and her message.

"(20) Plaintiff shows that because of the negligent conduct of defendant she was forced to endure all the pain and humiliation of an enforced separation from her husband for the long period of time aforesaid, was forced to endure the hardships incident to the withdrawal of his support and his protection of his family, and to endure many other painful things necessarily incident to such a condition of affairs.

"(21) By reason of this absence of her husband, brought about by defendant's negligence as aforesaid, plaintiff was forced to work and struggle to furnish to herself and family that provision and maintenance always theretofore afforded by her husband. Plaintiff, being unused to work of the character she was forced to resort to, in her distressing condition necessarily suffered great humiliation from the bare fact of the necessity.

"(22) In the effort to properly provide for her children during said absence of their father, she was forced to live for a time separate and apart from them, and was thus deprived, not only of the presence, companionship, and comfort of her husband, but of that of her children as well.

"(23) The negligent conduct of defendant aforesaid placed plaintiff in the false and humiliating attitude of a deserted wife, and brought upon her the usual suspicion and unkind things inseparably incident to so unfortunate a condition.

"(24) During said absence of her husband, by reason of defendant's negligence aforesaid, plaintiff was forced to give up her home, in her efforts to provide for her family without the necessary assistance of her husband.

"(25) Plaintiff submits that by reason of defendant's negligence aforesaid she was specially injured and damaged in the sum of $875, the same being the amount of his salary for 121⁄2 months, as a member of the police force, which her husband would have received and contributed to the support of his family, from July 20, 1903, to about August 1, 1904, but for the defendant's negligence aforesaid.

"(26) Plaintiff cannot undertake to describe the mental anguish and suffering endured by her during the said exile of her husband, brought about by defendant's negligence aforesaid.

"(27) Wherefore plaintiff says that defendant has injured and damaged her in the sum of $3,000, for which she prays the judgment of the court, and to that end prays process requiring defendant to appear at the next term of this court to answer this complaint."

The defendant company demurred as follows:

"(1) Said petition sets forth no cause of action against this defendant. The damages claimed do not flow from, nor are they immediately connected with, any act of negligence alleged on the part of this defendant.

"(2) Defendant demurs specially to the twenty-fifth paragraph of said petition, in that it sets forth no cause of action against this defendant, for the reason that the damages therein claimed were not suffered by the plaintiff, but by the plaintiff's husband."

Upon hearing the demurrer, the judge of the city court sustained the same and dismissed the case, with judgment for costs. To this judgment the plaintiff in error, by her bill of exceptions, excepts, and assigns error in that the court erred in not overruling the general demurrer, in not overruling the demurrer setting forth that the alleged damage did not flow from and was not connected with any alleged act of negligence of the defendant, in not overruling the demurrer to the twenty-fifth paragraph of the petition, and in dismissing plaintiff's case.

We think that the court properly sustained the demurrer to the twenty-fifth paragraph of the plaintiff's petition; for it is clear that the damage therein alleged was not sustained by her. She had no interest in the contract mentioned in that paragraph, and was not entitled to maintain an action for it. The salary of her husband as a member of the police force was due and payable to him; and as the obligation to support wife and family is upon the husband, and not upon the wife, if it be true that the plaintiff and her family were deprived of support, the right of action therefor would be in her husband only. But we do not think that all of the damages alleged are so remote as that the general demurrer reaches all of the paragraphs of plaintiff's petition. We are quite sure that the court should not have dismissed the petition upon the ground that it set forth no cause of action, because the allegations of the petition showed a breach of contract by the defendant which entitled plaintiff to recover at least nominal damages. Civ. Code 1895, § 3801. This being true, the cause should not have been dismissed. The Supreme Court has frequently refused to reverse a judgment denying a new trial simply to allow plaintiff an opportunity to recover