nominal damages; but such a rule has never been applied to the grant of a nonsuit, where the plaintiff was entitled to recover nominal damages. In Howard v. Dayton Coal & Iron Co., 94 Ga. 416, 20 S. E. 336, it was held that, "the evidence showing that the plaintiff was probably entitled to recover at least nominal damages to vindicate his right, it was error to grant a nonsuit." In this respect the same principle is applicable to the dismissal of an action on demurrer as that applied where a nonsuit has been awarded.

A declaration against a telegraph company, which alleges that the message delivered to the company for transmission was never transmitted, may be amended by striking allegations of damage which are too remote for recovery, and by inserting any new matter amplifying the plaintiff's allegations as to defendant's breach of contract or public duty; and if the petition, after being thus amended, is consistent, and sets forth a cause of action (either as to breach of contract or breach of public duty), such a petition, subject to such amendment, should not be dismissed on general demurrer, though most of the paragraphs of this plaintiff's petition would be subject to be stricken on special demurrer thereto, under the ruling in Chapman v. W. U. Tel. Co., 88 Ga. 763, 15 S. E. 901, 17 L. R. A. 430, 30 Am. St. Rep. 183. The suit in that case was brought to recover damages for mental suffering caused by the company's failure to deliver a message to the addressee. There was also a count for the statutory penalty. The plaintiff obtained a verdict for the penalty, but a demurrer to the counts for special damage, arising from mental pain and anguish suffered by the plaintiff, Chapman, was sustained; and this judgment was affirmed by our Supreme Court. The effect of this decision is to relieve a telegraph company, no matter how flagrant its neglect of duty, no matter how ruthless its violation of its contract, and no matter how harrowing or aggravating may be the results, from any liability whatever, unless there be a money loss-an injury to the person, reputation, or property of the injured party. We are bound by the decision in the Chapman Case as precedent, but we are in no sympathy with the principle upon which it is based or the reasoning by which it is sustained. To our minds it is monstrous that you can recover damages if you sustain loss on your car load of oxen by reason of unreasonable delay or failure to deliver a message relating to this, your property, but if you are summoned to the deathbed of your mother (whose dying blessing you would not exchange for all the cattle upon a thousand hills), and a telegraph company sees fit not to send or deliver the message which might have brought you to her side, you are completely helpless. The decision in the Chapman Case is too ultra material for even this material age, in which the acquisition of

wealth seems well-nigh the only yardstick by which individual achievement is measured. It is not only in conflict with a long line of authorities, eminently respectable, and which are supported by consideration of the most mature legal reasons, but it is at variance with sound public policy.

In our opinion, mental pain and anguish should afford good basis for an action for damages, and the jury can safely be trusted to measure the amount. It is useless for us to cite the (to our mind) unanswerable argument afforded by the decisions of the courts of last resort of our sister states, but we are impressed with the necessity for legislative inquiry into this matter. We hope such definite legislative action will be taken at an early date as will entitle a citizen of this state to recover (as in other states) for mental suffering, as well as for pecuniary loss. Whether the default as to the message causes pecuniary loss or mental anguish, a party entitled to sue must be the real party in interest, and must be either a party to the contract or a beneficiary named therein. He may be a party to the contract by being either the sender whose name is signed to the message, or the principal who paid for the message, or by whose order the message was sent; for very frequently the signer of a message is a mere agent or messenger, who is not damaged and cannot recover damages. It is, of course, too well established for discussion that, before there can be a recovery, the telegraph company must have notice that the particular result alleged as the basis of the claim was to be apprehended from delay in transmission or failure to deliver and that there should be notice, also, of the beneficial interest of the particular person who claims compensation for suffering. The purposes for which telegraph companies are created cannot be ignored. Where disappointment, sorrow, and anguish are the natural result of negligence, they must be held to have been contemplated by a telegraph company when its agent received the message and agreed for a stipulated compensation to promptly transmit and cause the same to be delivered. "Otherwise, in a large class of cases most grievous wrongs may be inflicted in matters as vitally affecting the welfare of individuals as in other matters to which a pecuniary value, a market price, can be fixed; and this in disregard of a duty voluntarily assumed to the public, to secure the due performance of which many privileges, not possessed by persons generally, are conferred by the state upon the offending party." Stuart v. W. U. Tel. Co., 66 Tex. 584, 18 S. W. 352, 59 Am. Rep. 623. "Telegraph companies exercise and enjoy special franchises and privileges under the law. The very purpose of their organization is to furnish for compensation the means of rapid and prompt communication. Its use is expensive, and is rarely resorted to except in matters of importance to the par

ties. Hence the resort to this mode of transmitting information should of itself be held sufficient notice to the company's agents that, as between the sender and the party to whom sent, the message is deemed to be of some importance, unless the contrary is made known by strict information or strong implication, as time is the usual consideration that prompts parties to the use of the wire." So Relle v. W. U. Tel. Co., 55 Tex. 313, 40 Am. Rep. 805. "A telegraph company is essentially public in its duties. Without such public duties there would be neither reason for its creation nor excuse for its continued existence. In fact, being the complement of the postal service, it is one of those great public agencies so important in its nature and far-reaching in its application that some of our wisest statesmen have deemed its continued ownership in private hands a menace to public interests. Hence it follows, both upon reason and authority, that the failure of a telegraph company to promptly and correctly transmit and deliver a message received by it is a breach of a public duty imposed by operation of law. In the words of a great English judge: 'A breach of this duty is a breach of the law, and for this breach an action lies, founded on the common law, which action wants not the aid of a contract to support it.'"

Were it not for the decisions in the Chapman and Giddens Cases, we should unhesitatingly hold that injury to the feelings resulting from mental suffering and anguish constitute ground for general damages, recoverable under a general averment of damage; and though this doctrine of mental anguish in telegraph cases is of comparatively recent origin (having heretofore been deemed contrary to the principles of common law), it must be borne in mind that it must possess inherent merit, for the reason that it has made constant progress, in opposition to the preconceived ideas of courts and jurists. To our minds there is no good reason why mental suffering should be differently treated from physical pain. Indeed, in cases of physical injury the mental suffering is taken into view. Why should it be disregarded because it does not originate from a physicial injury or is entirely disconnected from it? As remarked by Justice Lumpkin in the Chapman Case: "On ultimate analysis, all consciousness of pain is a mental experience, and it is only by reference back to its source that one kind is distinguished as mental and another as physical." It is interesting to note how the doctrine, first announced in the cause celebre of So Relle v. Telegraph Co., supra, of recovery of damages for mental anguish, has extended by its acceptance by courts of the greatest erudition. The doctrine has been followed in Texas in more than 50 cases; and in Tennessee, Alabama, Kentucky, Iowa, Louisiana, Nevada, North Carolina, South Carolina, and

Washington, so far as our investigation has gone, it has been expressly approved and followed. And while there has been no decision upon the question in New York, so far as telegraph companies are concerned, the Court of Appeals of New York, in the learned opinion in Gillespie v. Railroad Co., 178 N. Y. 347, 70 N. E. 857, 66 L. R. A. 618, 102 Am. St. Rep. 503, unequivocally affirms the principle that a plaintiff can recover for purely mental suffering, without any physical pain whatever, resulting from breach of public duty by a common carrier; and railroad and telegraph companies (considered as corporations organized for public purposes and fixed for a public use) are essentially similar in nature. It has not been decided in Georgia what a telegraph company is. Three different opinions were held by the three members of the Supreme Court in W. U. Tel. Co. v. Fountaine, 58 Ga. 438, 439; but whether a telegraph company be a common carrier (as held by Judge Jackson), a bailee (as held by Chief Justice Warner), or a corporation sui generis engaged in taking and delivering messages, "receiving orders for work and labor and executing them" (as held by Judge Bleckley), the nature and importance of its business with the public, in our opinion, demands that such a corporation should, by appropriate legislation, be required to answer for mental suffering, as well as for pecuniary loss, caused by and due to the acts or omissions of its servants and agents.

The decision in the Chapman Case was not only rendered at a time when a statutory penalty (discussed in the opinion) was of force, but it is distinguishable from the present case in several other respects, which are adverted to therein and which doubtless affected the conclusion reached. The plaintiff in this case was the sender of the message, while Chapman was the party to whom the message was sent; and, in discussing the various decisions upon the subject of recompense for mental anguish, Justice Samuel Lumpkin mentions, as one of the elements of difficulty in determining that case, "whether the person to whom the message is sent, as well as the sender, can recover." 88 Ga. 765, 15 S. E. 901, 17 L. R. A. 430, 30 Am. St. Rep. 183. And again, still discussing the questions of difficulty (p. 766 of 88 Ga., page 901 of 15 S. E.), he says: "Some hold that the sendee also, being the beneficiary of the contract, can maintain the action for its violation." Again, it was not held in the Chapman Case that a plaintiff could not recover nominal damages, but only that the plaintiff in that case could not recover them, for the express reason stated, to wit, that to give nominal damages necessarily denies any further recovery, and in that case the plaintiff already had a verdict for the penalty. And further on it is held, in express terms, that a plaintiff in such a case as this, while she cannot recover for wounded feel

ings and mental anguish, can recover nominal damages. To quote from the opinion (page 775 of 88 Ga., page 904 of 15 S. E.): "It seems there is no public policy to be subserved by giving damages for mental suffering as a general rule, and the law does not allow it. But it is urged that the public occupation of telegraph companies creates between them and the public a special relation, in which their responsibility is greater than that of other persons. So much of their business and profit is derived from the acceptance of messages involving feelings only that at first view it would seem legitimate and salutary to require them to answer in damages for any dereliction of duty in this important part of their activity. The argument is that in the exercise of a public employment they undertake for hire to serve the feelings of their customers, and therefore ought to pay for negligent nonperformance or misperformance of this peculiar function. This reasoning is unanswerable in so far as it proves a right of action to arise out of the breach of duty." This last sentence unquestionably sustains our view with regard to the error of dismissing the plaintiff's petition in response to the general demurrer. The judge then proceeds to say that the penalty act of 1887 gives a conventional redress of some money value in lieu of mere nominal liability, thus again inferentially referring to one of the considerations which had influenced the decision in that case, to wit, that the plaintiff could not sue at once for the penalty and for nominal damages, as the nominal damages were included in the penalty and the plaintiff benefited thereby.

Unquestionably in this case, according to the allegations of the petition, the telegraph company, by receiving the dispatch, owed the plaintiff a duty the breach of which will support an action for damages. Langley v. W. U. Tel. Co., 88 Ga. 778, 15 S. E. 291. The damages recoverable would be controlled by the law of tort; the contract of the company (implied by acceptance of message) being merely inducement, creating the relation between sender and the company as carrier of the message, and fixing a public duty of the company. Telegraph companies pursue a public employment, and their public duty to a special patron is raised by the contract (implied by the acceptance of the message for transmission and delivery). Gray v. W. U. Tel. Co., 87 Ga. 351, 13 S. E. 562, 14 L. R. A. 95, 27 Am. St. Rep. 259. While not bound as insurers, they, as well as all common carriers, are liable for negligence. In every breach of contract duty, nominal damages (that is to say, general damages) are recoverable, and therefore the court erred in dismissing the present case. Civil Code 1895, § 3801; Lilly v. Boyd, 72 Ga. 83 (1); Kenny v. Collier, 79 Ga. 743, 8 S. E. 58 (1, 2). Deposit of the telegram and failure to transmit being shown, the burden would be upon

the company to justify. This petition certainly could resist a general demurrer. It showed a public duty arising out of a contract to transmit the message, assumed by defendant company. It alleged a breach of that duty, growing out of the failure to transmit the message, and thereby imposed on the telegraph company the burden of showing diligence; and the breach of the duty entitled the plaintiff to recover for the tort. The petition met every requirement necessary to charge the company with notice of the relationship of the parties, as well as with actual knowledge of the vital importance of the misplaced message; and, but for the ruling in the Chapman Case, we would unhesitatingly say that if, on the trial of the case, the evidence sustained the allegation, the facts as alleged would justify the imposition of exemplary damages. According to the allegations of the petition there can be no doubt that the failure of the company to perform its duty was the causa causans, the proximate cause, of such mental pain and anguish, as well as inconvenience, as common carriers are well-nigh universally held responsible for in our courts. But, though the plaintiff may not recover this, she is entitled to recover at least nominal damages, and her petition should not have been dismissed.

Judgment reversed.

GEORGIA RY. & ELECTRIC CO. v. BAKER. (No. 256.)

(Court of Appeals of Georgia. May 9, 1907.) 1. EVIDENCE-RES GESTE-ACTS ACCOMPANYING TRANSACTION.

It is error to allow a witness in an action brought to recover damages for an insult, alleged to have been given on a street car, to testify as to conduct of the conductor subsequent to the transactions alleged in the petition, and disconnected therewith. An objection to such testimony, that it was irrelevant and inadmissible, should have been sustained.

2. TRIAL-CONDUCT-REMARKS OF Judge.

While reasonable latitude of expression must be allowed a trial judge in ruling on the admissibility of evidence, still the immediate and positive affirmation by the court of a statement of counsel that a given fact (not relevant to the issues) would be evidence of discourtesy, and which could be well understood by the jury as an expression of an opinion as to the effect of the testimony, was error.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 439-443.]

3. SAME-INSTRUCTIONS-PROVINCE OF COURT AND JURY-COMMENTS ON EVIDENCE.

It was error, in instructions to the jury, for the court to charge that the Supreme Court had passed upon the fact that the things set out in the declaration made a case in court, and especially where, as a matter of fact, the particu lar case submitted had not been to the Supreme Court.

4. DAMAGE S-SUBJECTS OF COMPENSATORY DAMAGES-MENTAL SUFFERING.

It was error to charge the jury that if the words and actions of the defendant's servant were such as to insult and annoy the plaintiff,

and to worry her and humiliate her, she would be entitled to damages. There can be no recovery for annoyance and worry; and the jury should also have been instructed that the facts and circumstances should not only have been such as did humiliate and insult the plaintiff, but such as would reasonably tend to humiliate any person in similar circumstances. The damages recoverable for tort, in this state, are restricted to injuries to person, property, and reputation.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 9. Carriers, § 1121; vol. 15, Damages, 88 101-103.]

5. SAME-INSTRUCTIONS.

It is error, after giving in charge section 3906 of the Civil Code of 1895, and without any other or further instructions as to the measure of damages, to charge the jury that this section would be the rule under which the jury would assess damages, in case they found the defendant liable. In every case the jury should be properly instructed as to the measure of dam ages applicable to the facts of the particular

case.

6. CARRIERS-TRANSPORTATION

OF PASSENGERS PERSONAL INJURIES - ACTS OF CARBIER'S EMPLOYÉS.

While the conductor of a common carrier is clothed with police power, that fact affords no immunity to the carrier for damage resulting from his wrongful or illegal discharge of his duty, either as servant of the company or under color of the police power delegated to him by law. Consequently it was not error for the court to refuse a request to charge that the defendant was not liable for its conductor's acts in carrying out the law requiring the separation of white and colored passengers; the request being only a partially correct statement of the law.

7. TRIAL INSTRUCTIONS - NECESSITY-DUTY OF JUDGE.

It is error for the court to omit to charge the principles of law applicable to proper contentions of either party to a cause, where such contentions are authorized by the pleadings, and are sustained by testimony, and thus become issues in the case.

(Syllabus by the Court.)

Error from City Court of Atlanta; Calhoun, Judge.

Action by A. L. Baker against the Georgia Railway & Electric Company. Judgment for plaintiff, and defendant brings error. Reversed.

Rosser & Brandon and Walter T. Colquitt, for plaintiff in error. Burton Smith and J. A. Branch, for defendant in error.

RUSSELL, J. Mrs. A. L. Baker recovered a verdict for $775 against the Georgia Railway & Electric Company. The defendant company moved for a new trial, and excepts to the judgment denying and overruling the motion. There are 21 grounds of the amended motion; but, as the decision of some of them is determinative of the merits of the question involved, it will not be necessary to pass upon all of these numerous assignments of error.

Mrs. Baker sued (in the language of her declaration) for annoyance, humiliation, mortification, and insult. No attempt was made to prove any special damages. The case proceeded upon her right to recover whatever actual damages she sustained to her feelings,

and whatever vindictive damages, if any, the circumstances might authorize the jury to assess. It appears, from the evidence of the plaintiff, that Mrs. Baker was under treatment from a physician, to whose office she went at stated intervals; that she went to the office of the physician from her home, a distance of about a mile and a half, unaccompanied; that on the day in question she had been to the office of the physician, and walked back from his office, something more than two blocks, to take the car; that her husband, at the telegraph office, and her brother, at a wholesale house, were at work within less than 100 yards of where she passed along to take the car; that she got on the car and sat down on one of the rear seats, set apart for the use of colored passengers, and which she knew to be set apart for the use of colored passengers; that she was too sick to move forward while the car was in motion; that the conductor went to her soon after the car started, and said, "Move up to the front, please;" that she paid no attention to this request and made no response to the conductor; that the conductor shortly afterwards went to her again and requested her to move up to the front, whereupon she told him that she was too sick to move while the car was in motion, but that she would move when it stopped; that the conductor came to her again and requested her to move, and threatened to have her arrested if she did not move; that the car stopped again after this at Mitchell and Whitehall streets, and she did not move up while it was stopped; that after this time she heard the conductor, upon the back platform of the car, remark to another man in uniform, "Damn her, "if she don't move I am a good notion to throw her through the window;" that she did not move at any of the subsequent stops of the car until it had become practically filled with people and had traveled about a mile, where some negro passengers got on, which necessitated her moving to the extreme front of the car in order to reach a vacant seat, all the other places, in the meantime, having been filled up by passengers at the various stops of the car. The foregoing presents the salient features of the case, as testified to by the plaintiff. No other witness testified as to the circumstances of the transaction, except the defendant's conductor, whose testimony was materially in conflict with that of the plaintiff, but which, having been disregarded by the jury, will not be considered by us.

The plaintiff in error insists that the verdict is excessive, and a new trial ought to be granted; that the most that the plaintiff ever claimed was that the conductor had requested her, two or three times, to move, which requests she disregarded, and kept her seat until she was forced to move by the advent of the negroes, after the car had traveled more than a mile; that the oath which she quoted was not addressed to her,

but to some person outside of the car, on the back platform, and not intended for her ears at all. There is some force in the argument of counsel for the plaintiff in error that, even conceding that the defendant's conductor swore falsely when he denied the use of the oath, and conceding that the plaintiff, in her excited and nervous condition and at her comparatively remote distance from the conductor, did not misunderstand what he said, still the fact remains that the remark was not addressed to her and was not intended for her hearing; and it is most probable, as suggested, that, if it had been uttered in a tone of voice loud enough to warrant the inference that it was intended to be heard by her, the remark would have been resented by the other passengers on the car. Although a verdict for $775, under the evidence disclosed by this record, does seem to us rather large, still our obligation to recognize the right of the jury to assess the damages in every such case is so strong, and our regard for the right of passengers to protection from insult or abuse is so profound, that we would be extremely reluctant to set aside this verdict upon the ground that it is so excessive as by its very amount to show that the finding was the result of bias, prejudice, or other improper influences. We are not prepared to say that we would do so, were this the only question in the case. For reasons hereafter stated, it is not necessary that the question of amount be passed upon. Upon another trial, in which the errors now complained of will doubtless not be again committed, the jury can determine, not only liability, but amount. While any one of the various assignments of error certified by the trial judge might of itself be considered a harmless error, taken altogether it must be apparent, from the general countenance of the case, that the defendant did not have a fair legal trial, and that the errors complained of probably induced the verdict rendered, and perhaps greatly contributed to increase the amount of the recovery. A brief review of some of the grounds of the motion will sustain this statement.

It is complained in the first and second grounds of the motion that the court permitted the plaintiff to testify that the conductor would not stop the car long enough for her to get her feet on the ground. The defendant objected to this evidence as irrelevant and immaterial, but the court overruled this objection. The following colloquy occurred in the presence of the jury. Plaintiff's attorney, combating the objection, said that "to hurry her before she alighted safely would be an evidence of discourtesy," and the court replied, "Yes; I will let it stay in." There was no allegation in the petition which authorized this evidence. The plaintiff's allegation of discourtesy concluded in the petition with the statement of acts on the car and before she proceeded to alight. The transaction complained of had closed. Dis

courtesy on one occasion cannot be shown by proof of discourtesy on another occasion. To admit the evidence at all had necessarily the effect of adding weight to plaintiff's contention that the conductor had been discourteous to her on the occasion from which the suit arose, as against his contradictory evidence that no discourtesy was shown. The objection that the evidence was irrelevant and immaterial was well taken; and when the judge, in making his ruling, stated in immediate sequence, and almost in concert with the counsel for the plaintiff, that to hurry her before she alighted would be evidence of discourtesy, and that for that reason he would let the evidence stay in, the jury could not have failed to understand the language of the court, under the circumstances, as being an opinion expressed by the court on the evidence. This was a violation of section 4334 of the Civil Code of 1895.

The third ground of the motion is not fully approved by the trial judge, and for that reason will not be considered. Nor is it necessary to discuss the fourth and fifth grounds.

In the sixth ground of the amended motion, as approved by the court, it is stated that counsel for the plaintiff argued before the court that the case then being tried had been to the Supreme Court, and that the Supreme Court had decided that in this declaration they had a good case; and in the seventh ground complaint is made that the court, in charging the jury, emphasized this error and gave additional weight to it, as against the defendant, by stating that the Supreme Court had passed upon the fact that the things set out in the declaration made a case in court. At the time of the argument of plaintiff's counsel the defendant asked a mistrial on account of the statement and argument complained of, upon the ground that it deprived the defendant of a fair trial, would inevitably affect the opinion of the jury, and could have no other effect than to bias the minds of the jury against the defendant. We are not prepared to say that the court should have granted a mistrial upon the statement made by plaintiff's counsel; but we are quite sure that the remark made was, in its tendency, prejudicial to the defendant's case, and that the court should have clearly and explicitly, at the time that his attention was called thereto, explained to the jury that they had no concern with what might have been the decision of the Supreme Court, that they should pay no attention to the remark made, and should receive the law only from the court, when it should thereafter be given to them in charge. So far as the language in the seventh ground is concerned, we are quite sure that the able trial judge was endeavoring to do what he should have done the day before-trying to withdraw from the jury any impression which might have been created as to the decision of the Supreme Court referred to. Upon examination of the