whole charge we are constrained to this opinion. But the language used, that "the Supreme Court passed upon the fact that the things set out in the declaration made a case in court," in view of all the circumstances of the case, was peculiarly unfortunate, and not suited for the purpose doubtless intended by the court. The effect of this language was to state broadly to the jury that the Supreme Court had said that the plaintiff had a case, and that it was only necessary, in order to recover from the defendant, to prove the physical facts set out in her petition. It tended to deprive the defendant of that fair and impartial trial before a jury to which every litigant is entitled. Its natural effect was to bias the opinion of the jury towards a decision that a recovery should be had, in order that they should obey and properly respect what they thought was the opinion of the Supreme Court; and as a matter of fact, though plaintiff's husband's case had been taken to the Supreme Court (Georgia Railway & Electric Co. v. Baker, 120 Ga. 991, 48 S. E. 355), it appears from the record that this plaintiff's case had never been passed upon by that tribunal.

We think that the charge complained of in the eighth ground is too broad. It put too great a burden on the defendant, and made the effect on the plaintiff the test of the insult, without leaving the jury to pass upon the question of what would be an insult to a normal person of ordinary sensibility, under the facts and circumstances shown in the case; and it allowed plaintiff to recover if she was annoyed, whether she had reason to be annoyed and insulted or not. The language used by the court was as follows: "If you determine, from the evidence in the case, that the words, actions, etc., were such as to insult and annoy her, and to worry her and humiliate her, then you give her such damages as you think she is entitled to recover." As has heretofore been ruled by this court, in Glenn v. Western Union Tel. Co., 1 Ga. App. 821, 58 S. E. 83, we are bound by the decision in Chapman v. W. U. Tel. Co., 88 Ga. 763, 15 S. E. 901, 17 L. R. A. 430, 30 Am. St. Rep. 183, while we do not approve it. We think that the peace of mind, the feelings, and the happiness of every one should be guarded by giving recovery of damages for mental anguish or suffering produced either intentionally or negligently. But the doctrine of the Chapman Case, that only the body, reputation, and property of the citizen are protected by liability for damages on the part of the wrongdoer, is expressly affirmed in Cole v. Atlanta & West Point R. Co., 102 Ga. 479, 31 S. E. 108, in which a right of recovery is sustained on the express ground that the allegations of the petition affirm a "wanton and inexcusable injury to [Cole's] person, viz., a flagrant attack directed towards his reputation."

The next ground of complaint which we will consider is the exception taken to the

following charge of the court: "Now, in passing upon the question of damages, if you should find that the railway company is liable, I give you this law of our state: 'In every tort there may be aggravating circumstances, either in the act or the intention; and in that event the jury may give additional damages, either to deter the wrongdoer from repeating the trespass, or as compensation for the wounded feelings of the plaintiff.' And that would be the rule under which you are to assess damages." We will consider this ground (which relates to the court's giving section 3906 of the Civil Code of 1895 in charge to the jury) in connection with the next succeeding ground, in which complaint is made that the court gave no measure to the jury by which they could estimate the plaintiff's damages in case of recovery, except section 3906 of the Civil Code of 1895. While it was not erroneous to submit the principle contained in this section, it was error on the part of the court to instruct the jury that this section would be the rule under which they were to assess damages. It was a clear expression of opinion on the part of the court that there were aggravating circumstances in the case being tried, and that additional damages should be given, and withdrew these questions from the jury by virtually saying to them that, if they believed the plaintiff was entitled to recover at all, damages should be given, either to deter the wrongdoer from repeating the trespass, or as compensation for the wounded feelings of the plaintiff; and this without anywhere having instructed the jury as to any measure of the original damages to which the proposed addition, arising from aggravation, should be made.

We think, too, that it was error for the court to charge the jury (though it was no doubt due to inadvertence, and perhaps thus understood by the jury, and consequently harmless) that they would be governed by the facts as they knew them to be and heard them from the stand. The court, doubtless, intended to say the facts as the jury knew them from hearing them from the stand. Judgment reversed.

BASHINSKY v. WESTERN UNION TELEGRAPH CO. (No. 297.) (Court of Appeals of Georgia. May 9, 1907.) 1. TELEGRAPHS-DELAY IN TELEGRAM AcTION FOR DAMAGES-PLEADING. The action being for damages on account of failure to deliver in reasonable time a telegram for the purchase of cotton, by which failure the plaintiffs were prevented from effecting a sale of the cotton and lost a contract from which, if the message had been correctly delivered, they would have made certain commissions, and the terms and conditions of the contract not being alleged so as to inform the defendant of its character and the amount of commissions contracted for, if any, and so as to enable it to be determined whether a contract or a proposal to contract was the subject-mat

ter of the suit, a special demurrer to the petition was properly sustained.

2. SAME-CIPHER TELEGRAM.

While a telegraph company is bound properly and promptly to transmit and deliver a message sent in cipher, if it undertakes to transmit the same, such company is not chargeable with knowledge of the contents and meaning of words used in sending messages in cipher, and which are purposely unintelligible except to the addressee. In such case the only presumption with which the telegraph company is chargeable is knowledge of the importance of the message.

3. SAME.

Consequently, in a case where it is alleged that damage has resulted from failure either to transmit or promptly deliver a message in cipher, which message either embodies or completes the contract, and the fulfillment of which contract as alleged would have been profitable to the plaintiff, and the loss whereof, as alleg ed, has endamaged him, it is incumbent upon the plaintiff to translate such cipher telegram in the petition, so as to put the defendant upon notice of its contents and properly enable him to prepare his defense.

4. SAME.

Where the alleged loss and damage, and the question as to whether there was a contract or not, and as to whether such contract, if shown to exist, and if it had been performed by the addressee, included profits or commissions, as alleged, can be determined only by a knowledge of the contents of such telegram, and such cipher message is unintelligible, a special demurrer to the allegations that a contract was lost by reason of delay in delivery of the message, and that by said contract the plaintiff would have made commissions, is properly sustained upon the ground that the allegations are too vague, indefinite, and uncertain. (Syllabus by the Court.)

Error from City Court of Sandersville; Hyman, Judge.

Action by Bennett & Co. against the Western Union Telegraph Company. On the death of Bennett, Bashinsky, surviving.partner, was substituted as plaintiff. Judgment for defendant, and plaintiff brings error. Affirmed, with direction.

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

RUSSELL, J. Bennett & Co. sued the telegraph company in the city court of Sandersville for $1,999.99 damages for an alleged delay of 2 hours and 30 minutes in the delivery of the following cipher message: "Minnoben, Sandersville, Georgia. Devium Lichbades digrassa licoperdo gabbiola marntium argeorum liabamus balance haspicoll bemen." Plaintiffs alleged that this telegram was from a broker in Bremen, for the purchase of 200 bales of middling lint cotton, each weighing 500 pounds, at the price of 6.20d. per pound for middling cotton and 6.25d. for good middling. Plaintiffs alleged further that they immediately wired their acceptance of the offer for the purchase of said cotton, but, by reason of the delay in delivering the iginal telegram sent them from Bremen, their reply reached Bremen too late, and they were thereby prevented from effecting

the sale of the cotton, and lost a contract by which they would have made commissions of $1,999.99 had the message to them been promptly delivered. Plaintiffs further alleged that, if the message had been delivered in a reasonable time, or even an hour sooner, they would not have sustained any loss, but would have been able to make and carry out the contract, and make their commission in the sum aforesaid. The defendant demurred to those portions of the third and fourth paragraphs of plaintiffs' petition in which it is alleged that, by reason of the delay in the delivery of the message, a contract was lost, by which contract plaintiffs would have made commissions, upon the ground that the allegations as to the contract and the commissions are too vague, indefinite, and uncertain, and do not put the defendant spe cifically on notice as to the character and terms of the contract, the amount of the commissions contracted for, or what would have accrued to the plaintiffs upon the completion of the contract. This demurrer was sustained; and, no amendment being offered, the trial judge dismissed the suit, and this judgment is now alleged to be erroneous.

It cannot be seen, from the allegations of the petition, how the plaintiffs were damaged. No right to recover damages is alleged. It is nowhere distinctly alleged that the plaintiffs had a contract with the sender of the message. On the contrary, from the distinct averment in the fourth paragraph of the petition that they "would have been able to have made the contract," etc., it can only be inferred that they did not have such a contract as would have bound the sender of the message. They lost nothing but a chance to make something. It was a case of lost opportunity; but the plaintiffs were in the same condition after receiving the telegram as they were before, except the expense of their reply, which was sent "at a venture." It is averred that, if the plaintiffs had received the telegram in time, they would have made $1,999.99. They might have done this, if they had been able to make the contract, or they might not. No contract is set out. The defendant had the right to be informed. From the fact stated in the petition, that a reply had to be sent and received at Bremen by 10:30 o'clock a. m., it is evident that there was no contract, but only a proposal to contract. Thus viewed, plaintiffs' complaint is that the defendant failed to deliver in time the offer of the Bremen cotton buyers to take 200 bales of cotton at the price named; and the ruling in Richmond Mills v. Telegraph Co., 123 Ga. 222, 51 S. E. 293, becomes applicable. "Compensatory damages cannot be recovered of a telegraph company for failure to send or deliver a mere proposal to sell, * as they are contingent upon its acceptance." Beatty Lumber Co. v. Telegraph Co., 52 W. Va. 410, 44 S. E. 309, and cit. And in the Beatty Case (page 414 of 52 W. Va., page 310 of 44 S. E.) the court

*

*

says further, "The trouble

is that there was no finished contract between the parties, but only a proposal for a contract; and there can be no contract without both a proposal and its acceptance. The failure of the telegraph company did not cause the breach of a consummate contract. It only prevented one that might or might not have been made." The whole question is most clearly stated by Justice Evans, in Wilson v. Western Union Tel. Co., 124 Ga. 131, 52 S. E. 153. In that case the plaintiff, Wilson, had an understanding with a bridge construction company that the company could procure his services when wanted, at a stated salary. The bridge company later, desiring Wilson's services, sent to Wilson at Waycross, Ga., a telegram in these words: "Can you commence work next week? Answer." The delivery of this message was delayed 10 days from the date of its reception, although it could have been delivered in a very few minutes either at Wilson's residence or at his place of business, and when it was delivered the senders of the telegram had made other arrangements. As said in that case: "The telegram, in connection with the averments on this subject, would not evidence a closed deal. Suppose it had been promptly delivered, and the addressee had replied in the affirmative; still there would have been no contract between the bridge company and the plaintiff. * * The failure to get employment with the bridge company was not proximately caused by the delay in the delivery of the telegram." In the trial court the case was dismissed on general demurrer, and the judgment was affirmed.

We think that the defendant had the right to be informed in the petition as to what was the meaning of the cipher telegram, so as to be enabled to properly prepare its defense. The language is absolutely unintelligible, except to those who may have been instructed in the particular cipher code used. A telegraph company is required to transmit and promptly deliver telegrams sent in cipher, but the telegraph company is not presumed to be advised of the contents or meaning of the message, further than that it is to be presumed important. If the importance of the message is recognized, and it is promptly delivered, it is immaterial whether the telegraph company knows the meaning of a single word therein contained, because it is none of its concern. But if it be claimed that the message was not properly or promptly transmitted or delivered, and that, by reason of negligence in any respect, injury or loss resulted, and suit is brought to recover damages therefor, then knowledge of the contents of the message becomes material to the defendant in preparing his defense, as it will be material to the jury on the trial, in determining whether there is any damage, and, if so, how much. The defendant has the right to be plainly apprised,

in the petition, of every matter necessary to be proved on the trial; and, as it must be admitted that the words would have to be translated for the court and jury on the trial, so they should have been translated in the petition for the defendant. For failure to

so interpret the cipher message and embody the translation in the petition, the demurrer of the defendant that the allegations as the contract do not put defendant on notice as to the terms or character of the contract was well taken and properly sustained. So far as we are aware, it has never been held that a company, engaged in the transmission of a message, is chargeable with knowledge of the contents of telegrams sent in cipher. The decision in the Fatman Case, 73 Ga. 285, 54 Am. Rep. 877, was based on the earlier ruling in Western Union Telegraph Company v. Blanchard, 68 Ga. 299, 45 Am. Rep. 480, that the telegram, though in singular and unintelligible language, put the company on notice that it related to important commercial business, and required reasonable and ordinary dispatch.

We not only have no hesitation in holding that the trial judge was right in sustaining the special demurrer, but we think that the petition would be subject to even a general demurrer or oral motion to dismiss, as setting forth no cause of action. It was settled in the Clay Case, 81 Ga. 287, 6 S. E. 813, 12 Am. St. Rep. 316, that profits anticipated from a contract from which, if the contract had been made, profit would have accrued, afforded no basis for the recovery of damages as against one who merely prevented the contract. In the Clay Case (in which the allegations as to the exact point now being considered were similar to those in this case) the declaration was demurred to orally, on the ground that it set forth no cause of action. And this petition could safely have been dismissed upon the same ground, if the ruling in the Clay Case was sound. It is based on the settled principle that the damages are too remote and uncertain to be the basis of recovery.

Judgment affirmed, with direction.

MISSOURI STATE LIFE INS. CO. v. LOVELACE. (No. 39.)

(Court of Appeals of Georgia. March 22, 1907.) 1. JUDGMENT CONCLUSIVENESS MATTERS CONCLUDED.

-

The sustaining of a general demurrer to a petition for equitable relief filed in the superior court, upon the ground that the petitioner was not able to set up by way of defense in a city court the things which it sought to prove in order to cancel a policy of insurance, and the consequent dismissal of the petition, do not make the questions therein involved res judicata, so as to require the dismissal of a writ of error brought to review errors alleged to have been committed in the city court, even though the subject-matter of the suit was in both cases the same policy of insurance.

2. SAME-IDENTITY OF CAUSE OF ACTION. The judgment sought to be set up as res judicata must be the result of an actual and fair trial of the issues. It is not sufficient that there is an inference of a decision upon the same points. There must not only be identity of subject-matter, of persons, and of parties, but identity of cause of action.

3. CONTRACTS-VALIDITY-WHAT LAW GovERNS JUDICIAL NOTICE.

Parties are presumed to contract with reference to the place of the contract. If the contract is valid there, it is valid everywhere. The lex loci contractus controls as to the nature, construction, and interpretation of a contract.

(a) By comity the laws of a sister state will be applied in the enforcement of any contract to be performed in that state, so long as such laws do not conflict with the statutes, powers, or rights of this state, its well-settled public policy, or the public conscience.

(b) "The court on the trial of a cause may proceed on their knowledge of the laws of another state, and it is not necessary in that case to prove them."

[Ed. Note.-For cases in vol. 11, Contracts, § 724; 51.]

4. INSURANCE

point, see Cent. Dig. vol. 20, Evidence, §

CONTRACT CONSTRUCTIONMOST STRONGLY AGAINST INSURER.

In cases of doubt as to whether the common law or the statutes of another state shall prevail, the law will be construed more strongly against the framer and proposer of the contract, always preferring, in contracts of insurance, that construction most favorable to the insured. [Ed. Note.-For cases in point, see Cent. Dig. vol. 28, Insurance, § 295.]

5. CONTRACTS-VALIDITY - WHAT LAW Gov

ERNS.

Where the laws of another state pro hac vice apply, an answer to a suit based upon a contract to be performed in another state should be stricken, unless a meritorious defense, as judged by the laws of that state, is presented. 6. INSURANCE-PENALTY-RIGHTS OF INSURED -WHAT LAW GOVERNS.

The penalty is one of the inherent rights attaching to a contract of insurance (in case there is groundless refusal to pay), to enable the beneficiaries to obtain, free from deduction, the original benefits of the provision in their favor according to the tenor of the policy. Such damages and attorney's fees as would be recoverable by citizens of another state can likewise be recovered by citizens of this state, where the contract sought to be enforced is to be performed in such sister state. Citizens of this state will not be deprived of any rights allowed citizens of the place of the contract, when the laws of that state are being administered at the choice of the insurer.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 28, Insurance, § 293.1

(Syllabus by the Court.)

the writ of error. The motion is predicated upon the following grounds: "(1) That on the 30th day of April, 1906, the Missouri State Life Insurance Company, the plaintiff in error in the above-stated case, filed its petition against this defendant in error in the superior court of Fulton county. A copy of said petition is hereto attached and marked 'Exhibit A,' and is made part of this motion. (2) That since the date of suing out the writ of error in the above-stated case by said company the said case of the said company against this movant came on to be heard in the said superior court of Fulton county, and that the same was heard on a general demurrer made by movant to the said petition on the 14th day of September, 1906, and during the September term, 1906, of said superior court, on which day this movant avers the court made and entered the following judgment therein, to wit: "The general demurrer in this case coming on to be heard, it is ordered that the same be sustained, and plaintiff's bill is dismissed. September 14, 1906. J. T. Pendleton, J. S. C. A. C. (3) This movant avers that every contention which was made by said company in its plea and answer to the suit brought by her against it in the city court of Atlanta, and that every issue involved in his case, was averred in said petition filed in the said superior court as aforesaid. (4) That the judgment of the said superior court, hereinbefore set forth, was not excepted to nor appealed from by said company, and that the September term of said superior court has expired, and that said company is now concluded, and cannot except to nor appeal from said judgment. (5) That every issue involved in the above-stated case was determined adversely to said company by the said judgment of the said superior court aforesaid, and that said judgment is now res adjudicata, and said company has no right to have two tribunals determine the issues involved in the two different proceedings. (6) That said plaintiff in error has no right to further prosecute the writ of error in this case, for the reason that it is concluded as to all assignments of error contained in the bill of exceptions in the above-stated case. (7) The said Mrs. Ophelia Lovelace avers that the various exhibits referred to in the petition filed by said company in the superior court aforesaid are contained in the record in the case at bar, and are, therefore, already before this honorable court. Wherefore she prays that said case be dismissed for and on account of the reasons herein alleged."

(8)

If we were to consult our own ease, we would cheerfully avoid the voluminous record in this case by sustaining the motion to dismiss the writ of error; and estoppels by judgment are favored. "In Lampen v. Corke, 7 Eng. S. L. R. 209, Holroyd, J., says that estoppels are odious in the law. It is often

so said, and truly said, of estoppels by recitals in deeds, admissions in pleadings, and all of that class. They are not to be readily allowed. Estoppels by judgments are, however, not odious. They are to be received with as much favor as any other defense, because it is the interest of the commonwealth that litigation should cease." Evans V. Birge, 11 Ga. 265. On the other hand, "matters which have received a judicial determination cannot be called again into controversy"; and this "applies with full force, not only in the same jurisdiction, but also as between courts of law and equity." Pollock v. Gilbert, 16 Ga. 402, 60 Am. Dec. 732. In Evans v. Birge, supra, Judge Nisbet delivered the opinion, and announced the following rule of decision as to the plea of res adjudicata, and established its limitations: "It is very well settled that a fact which has been directly tried and decided by a court of competent jurisdiction cannot be contested again between the same parties or their privies, in the same or any other court. A judgment, therefore, of a court of law, or a decree in chancery, is an estoppel to the parties thereto and to those who are in privity with them. This is the rule. It is, however, carefully and strongly fenced. The judgment must relate to the same question, and must clearly decided it. If it came collaterally under consideration, or was only incidentally considered, there is no estoppel. And if the decision of the question is ascertained inferentially, by arguing from the judgment or decree and the pleadings in the case, there is equally no estoppel." And in Brooking v. Dearmond, 27 Ga. 58, it is held that "a judgment in one suit is not a bar to another suit, if,

* although

the parties in the two suits are the same, they sue or are sued in one suit in a right different from the right in which they sue or are sued in the other."

Applying Judge Nisbet's rule to the judgment of the judge of the superior court dismissing the equitable petition, as well as to the record in that case, we cannot dismiss the writ of error on the ground of former adjudication, or hold that that judgment, although unexcepted to, is a bar to the right of the plaintiff in error to prosecute its writ of error in this court. The suit which was brought in the city court of Atlanta was an action upon a contract, to which the insurance company filed substantially four defenses: (1) That the insured had made certain false representations in his application, which avoided the policy; (2) that the insured committed suicide, which should reduce the amount of the recovery; (3) that the insured became intemperate, and that this caused his death, and by the terms of the contract avoided the policy; (4) that the policy never became effective, because the premium was not paid. The suit filed in the superior court for equitable relief by the company sought (1) to enjoin Mrs. Lovelace from pros

ecuting the case in the city court, (2) to cancel the contract of insurance upon the life of her husband, upon various grounds, and (3) to have the superior court take jurisdiction of the entire cause in equity and by appropriate decree establish the rights of the insurance company in the premises. While there are many statements in the company's petition in the superior court which are similar to those contained in its answer to the suit in the city court, they may all be considered as only incidental to the gravamen of the suit. The twenty-second paragraph of the petition states the reason why it is sought to have the intervention of the court of equity, to wit, that by virtue of the common-law character of the city court of Atlanta the petitioner was unable to avail itself of various matters of equitable relief sought in the superior court. There was no trial in the superior court, and the reasons which controlled the judgment of the judge in dismissing the petition can only be reached by inference, which by Judge Nisbet's rule cannot be done. The judgment which it is sought to set up as res adjudicata must be the result of an actual and fair trial of the issues. It is not sufficient that there is an inference of a decision upon the very point. 21 Am. & Eng. Enc. of Law, 129. And, if we were to infer anything, it might fairly be presumed that the dismissal of the petition by the judge of the superior court was due to his opinion that there was no reason for equitable interference with the cause then pending in the city court, and now, by writ of error, brought to this court. However this may be, the suit in the city court was one cause of action, and the petition to the superior court presented a different cause of action, and, wherever a judgment is sought to be set up as res adjudicata, not only must identity of subject-matter, of parties, and persons be shown, but identity of cause of action must also clearly be established. The motion to dismiss the writ is overruled, because, as was so well said by the Court of Appeals of New York in Palmer v. Hussey, 87 N. Y. 303, "the conclusive character of a judgment as a bar extends only to identical issues, and they must be such not merely in name, but in fact and substance. If the issue in the later litigation is intrinsically and substantially an entirely different one, even though capable of being described in similar language or by a common form of expression, then the truth is not excluded by the judgment."

Mrs. Lovelace sued the defendant company for $2,000 principal, $200 damages, and $500 attorney's fees, on a policy of life insurance issued in June, 1904, on the life of Edwin Lovelace, her husband, and in which she was named the beneficiary. One of the stipulations of the policy was in these words: "This contract shall be governed by and construed according to the laws of Missouri; the place of this contract being expressly