sponse to his father's telegram, and as the agent and acting for plaintiff, delivered to the agent of defendant," etc., but we consider all that is said with reference to John A. Wood's being the agent and acting for the defendant in error as a statement of a conclusion of law, rather than of fact, and as entirely refuted by the detailed facts set forth in the petition itself. The action being founded upon a contract, the elementary rule is that no one can sue for damages thereon who is not a party to the contract.

**

"This rule is often expressed in the maxim that no one can sue on a contract 'who is a stranger to the contract, or who is not privy to it.' In whatever words expressed, it embodies the principle that 'Rights founded on contract belong to the person who has stipulated for them,' and no other, and, therefore, that no one can sue for the nonperformance of an agreement to which he was not, either directly or through his agent, a party. It is, in short, 'clear that an action of contract cannot be maintained by a person who is not a party to the contract; and the same principle extends to an action of tort arising out of the contract.' No one, therefore, can bring an action for a breach of contract merely because he thereby suffers loss or damage, since a person may be damaged by the breach of a contract to which he is not a party, and under which, therefore, he has no rights. The loss he suffers, in so far, of course, as it arises merely from the breach of the contract, is damnum absque injuria, and affords no cause of action." Dicey, Parties, marg. pp. 77, 79; 3 Bouv. Inst. p. 134.

We can see no reason why suits brought on contract for the transmission of messages by telegraph, and where the damages claimed are wholly based on nonfeasance, should be excepted from the general rule. There seems to be still less reason to make an exception where the case further shows that the damages claimed for nonfeasance are unaccompanied by injury to the person or purse.

In Playford v. Telegraph Co., L. R. 4 Q. B. 706, where the plaintiff sued for damages for the erroneous transmission of a message by telegraph, sent to him by merchants from whom he had asked an offer for ice, it was held that the defendant's liability arose only from contract. As Sir Robert Lush, delivering the opinion of the court, said:

"The only question, therefore, is, with whom was the contract made? and to this there can be but one answer: It was made with Messrs. Rice & Hellyer. The offer was sent by them on their own behalf, and in their own interest. In so doing they acted, it is true, on the invitation of the plaintiff, but not as his agents, or as representing him. It follows that the plaintiff, who is a stranger to the contract with the company, cannot maintain an action against them for the breach of it."

In the case of Railway Co. v. Levy, 59 Tex. 563, a father sued a railway company, which owned and operated a telegraph line, for negligence in failing to transmit a message sent to him by his son, informing him of the sudden death of the son's wife and child. It was held that the contract between the son and the company could not be made a basis of recovery by the father. In delivering the opinion of the court, Mr. Justice Stayton said:

"The English cases hold, substantially, that a person to whom a message is sent cannot maintain an action, notwithstanding pecuniary injury may result to him by the failure of a telegraph company correctly, or within a reasonable time, to transmit it, unless the sender sustains to the person to whom the message is sent the relation of agent, through which privity of

contract is established. Playford v. Telegraph Co., L. R. 4 Q. B. 706. This doctrine has not been accepted by the courts of this country, but none of them have gone to the extent of holding that the person to whom the message is sent may maintain an action for the negligence of a telegraph company in transmitting, without averment and proof of some actual pecuniary injury sustained thereby."

In Elliott v. Telegraph Co., 75 Tex. 18, 12 S. W. Rep. 954, the plaintiffs were operating a sawmill, and, having broken their saw, one of the firm went to a neighboring village, and engaged Stewart, a member of the mercantile firm, to telegraph to St. Louis to parties to ship at once another saw for use in the mill. A dispatch was prepared, but was handed to a traveling agent of the hardware firm to whom it was 'addressed. The agent did not send the dispatch, but sent another, in terms, "Express Galloway and Stewart one Disston circular ripsaw, fifty-six inches, terms regular," signing it himself. It was not made known to the agent of the telegraph company that the order was in behalf of plaintiffs, and the court held that no recovery could be had by plaintiffs against the telegraph company for damages for want of the saw, or for the failure to deliver the dispatch. In delivering the opinion of the court, Mr. Justice Gaines said:

"It appears that, in delivering the dispatch written by himself, McAllen was not acting under the authority given him by Stewart, which was to cause to be transmitted the message written by the latter. Being the agent of the company who was addressed, he probably deemed it best to make the order himself. * * * At all events, he was not authorized to send that dispatch for Stewart, and it was not, therefore, the dispatch of plaintiff, though intended for his benefit. In the case of Telegraph Co. v. Broesche, 72 Tex. 654, 10 S. W. Rep. 734, the person who delivered the message for transmission was authorized to do so by the plaintiff, who was immediately present when it was delivered. The damages claimed were for the losses accruing by reason of plaintiff's mill lying idle for want of the saw. The face of the message did not advise the defendant that it was intended for the benefit of plaintiffs, or that such persons existed, and there was no evidence that defendant's agent knew the fact that the mill was idle for want of the saw. Therefore, plaintiffs could not have recovered damages for the lose resulting from this source. If they had proved that the message written by Stewart was delivered to the agent, they could, under the evidence, have recovered only the money paid for its transmission."

Again, in Telegraph Co. v. Young, 77 Tex. 245, 13 S. W. Rep. 985, it was held that "the liability of a telegraph company regarding the delivery of a message must be determined by the character of its contract."

We have examined the Texas cases cited by the appellee, where the person to whom a telegraphic message was directed has been permitted to maintain an action for the recovery of damages against a telegraph company for negligence in the transmission or delivery of the message; but we do not find in any of them that the Case of Levy, 59 Tex. 563, has been overruled, or even doubted, but that in each case, in the opinion of the court, the circumstances showed the party suing had either himself procured the sending of the message, and, therefore, was privy to the contract, or was, to the knowledge of the telegraph company, the party for whose benefit the message was intended.

In the present case, as we have seen, the plaintiff himself neither procured the dispatch to be sent, paid the consideration, nor was the telegraph company informed, either in terms, or by the tenor of the dispatch, that it was for his benefit, but was informed, so far as the message itself read, that it was sent at the request, and for the benefit, of another party. In our opinion the general exception and demurrer to the first amended original petition should have been sustained. Besides demurring generally, the defendant in the court below, plaintiff in error here, specially excepted and demurred to so much of the first amended original petition as sets forth a right to recover damages for alleged mental suffering and distress, upon the ground that such damages are remote, uncertain, and not within the contemplation of the parties at the time, and not an element of actual damages in the case, and, under the allegations of the petition, are not recoverable. The overruling of this special demurrer is assigned as error, and it presents the question which has been mainly considered in the argument of this case.

Defendant in error contends "that mental anguish, unaccompanied by injury to person or purse, is actual damage, and may be recovered as such." He supports his contention with a line of decisions rendered in the supreme court of the state of Texas, with decisions of the supreme courts of Kentucky, Tennessee, Alabama, North Carolina, Indiana, generally following the Texas decisions, and with quotations as to the law on the subject from several text writers of reputation. Telegraph Co. v. Adams, 75 Tex. 536, 12 S. W. Rep. 857; Anderson v. Telegraph Co., (Tex. Sup.) 19 S. W. Rep. 285; Martin v. Telegraph Co., (Tex. Civ. App.) 20 S. W. Rep. 861; Telegraph Co. v. Longwill, (N. M.) 21 Pac. Rep. 339; Telegraph Co. v. Allen, 66 Miss. 549, 6 South. Rep. 461; Telegraph Co. v. Dubois, 128 III. 248, 21 N, E. Rep. 4; Young v. Telegraph Co., 107 N. C. 370, 11 S. E. Rep. 1044; Chapman v. Telegraph Co., (Ky.) 13 S. W. Rep. 880; Wadsworth v. Telegraph Co., 86 Tenn. 695, 8 S. W. Rep. 574; Telegraph Co. v. Dryburg, 35 Pa. St. 298; Reese v. Telegraph Co., 123 Ind. 294, 24 N. E. Rep. 163; Shear. & R. Neg. § 560; Gray, Com. Tel. 65 et seq.; Thomp. Elect. § 424 et seq.; 3 Suth. Dam. 314; 2 Thomp. Neg. 847, § 11; 5 Lawson, Rights, Rem. & Pr. § 1972; Telegraph Co. v. Beringer, 84 Tex. 38, 19 S. W. Rep. 336; Telegraph Co. v. Jones, 81 Tex. 271, 16 S. W. Rep. 1006; Telegraph Co. v. Moore, 76 Tex. 67, 12 S. W. Rep. 949; Telegraph Co. v. Edsall, 74 Tex. 333, 12 S. W. Rep. 41; Telegraph Co. v. Feegles, 75 Tex. 537, 12 S. W. Rep. 860; Potts v. Telegraph Co., 82 Tex. 545, 18 S. W. Rep. 604; Telegraph Co. v. Ward, (Tex. App.) 19 S. W. Rep. 898; Telegraph Co. v. Rosentreter, 80 Tex. 406, 16 S. W. Rep. 29; Telegraph Co. v. Nations, 82 Tex. 89, 18 S. W. Rep. 709.

A careful reading of the cases cited will show that, in the main, they do not declare the general proposition applicable to all cases, that mental anguish resulting from the breach of a contract, or even from the neglect of a duty, unaccompanied with actual injury to the person or purse, will support an action for damages; but they rather make an exception as against corporations and quasi public agencies,

which, from the character of their business as common carriers, or in the nature thereof, and from the public privileges enjoyed, are said to be charged with a public duty, as well as obligated to particular individuals under special contracts. The logic seems to be that, as they are charged with duties to the public, they may be held liable for mental anguish, unaccompanied with other injury, resulting from the breach of the contract; and this, not exactly as punitive damages or smart money, but rather as a case where damages should be allowed to the aggrieved individual in order to impress upon the defendant the great importance of faithfully performing his duty to the public. We do not refer to this for the purpose of criticising the argument, but rather to suggest that telegraph companies, and other quasi public agencies referred to,' are engaged in commerce, (W. U. Tel. Co. v. Texas, 105 U. S. 460;) that their rights, duties, and obligations under contracts in the line of their business are matters arising under the general law; and that in the courts of the United States the questions arising thereunder, in the absence of controlling statutes, are not controlled by the decisions of the courts of last resort of any particular state in reference to like matters, although the cause of action originated in said state, (Railway Co. v. Prentice, 147 U. S. 105, 13 Sup. Ct. Rep. 261; Railroad Co. v. Baugh, 13 Sup. Ct. Rep. 914, recently decided, not yet officially reported.)

The general rule that mental anguish and suffering, unattended by any injury to the person, resulting from simple actionable negligence, cannot be sufficient basis for an action for the recovery of damages, is maintained and supported by an unbroken line of English authorities, by the conceded state of the general law prior to the So Relle Case, 55 Tex. 308, (in 1881,) and by the uniform decision of the federal courts, and decisions of the supreme courts of Nevada, Dakota, Kansas, Maine, Mississippi, Georgiå, Massachusetts, and by the opinions of several text writers of unquestioned standing as expounders of the law. Lynch v. Knight, 9 H. L. Cas. 577; Flemington v. Smithers, 2 Car. & P. 292; Railway Co. v. Coultas, 13 App. Cas. 222;. Johnson v. Wells, 6 Nev. 224; Russell v. Telegraph Co., 3 Dak. 315, 19 N. W. Rep. 408; Salina v. Trosper, 27 Kan. 564; West v. Telegraph Co., 39 Kan. 95, 17 Pac. Rep. 807; Wyman v. Leavitt, 71 Me. 227; Telegraph Co. v. Rogers, (Miss.) 9 South. Rep. 823; Chase v. Telegraph Co., 44 Fed. Rep. 554; Crawson v. Telegraph Co., 47 Fed. Rep. 544; Chapman v. Telegraph Co., (Ga.) 15 S. E. Rep. 901; Canning v. Williamstown, 1 Cush. 451; Wilcox v. Railroad Co., 52 Fed. Rep. 264, 3 C. C. A. 73; Tyler v. Telegraph Co., 54 Fed. Rep. 634; Wood's Mayne, Dam. p. 74, note; Wood, Ry. Law, p. 1238; 5 Amer. & Eng. Enc. Law, p. 42, note 2; Pierce, R. R. 302; Railroad Co. v. Stables, 62 Ill. 320; City of Chicago v. McLean, 133 Ill. 148, 24 N. E. Rep. 527; Trigg v. Railroad Co., 74 Mo. 147; Walsh v. Railroad Co., 42 Wis. 23. See, also, Kennon v. Gilmer, 131 U. S. 22, 9 Sup. Ct. Rep. 696; Terwilliger v. Wands, 17 N. Y. 54; Railroad Co. v. Packer, 9 Bush, 455; Joch v. Dunkwardt, S5 Ill. 331; Paine v. Railroad Co., 45

Iowa, 570; Railroad Co. v. Stevens, 9 Heisk. 12; Mulford v. Clewell, 21 Ohio St. 191; Freese v. Tripp, 70 Ill. 497; Clinton v. Laning, 61 Mich. 355, 28 N. W. Rep. 125; Meidel v. Anthis, 71 Пl. 241; Masters v. Warren, 27 Conn. 293; Stewart v. Ripon, 38 Wis. 584.

We have carefully considered the question presented, having been aided by able counsel orally and with elaborate briefs, and our conclusion is that upon principle, and the weight of authority, damages cannot be recovered from a telegraph company for mental anguish resulting from simple negligence in the prompt delivery of a telegraphic message, as the same are too uncertain, remote, and speculative.

In the case of Wadsworth v. Telegraph Co., supra, Judge Lurton, dissenting, said:

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"The reason why an independent action for such injuries cannot and ought not to be sustained is found in the remoteness of such damages. Such injuries are generally more sentimental than substantial, depending largely upon physical and nervous condition. The suffering of one under precisely the same circumstances would be no test of the suffering of another. Vague and shadowy, there is no possible standard by which such an injury can be justly compensated, or even approximately measured. Easily simulated, and impossible to disprove, it falls within all of the objections to speculative damages, which are universally excluded because of their uncertain character. That damages so imaginary, so metaphysical, so sentimental, shall be ascertained and assessed by a jury with justness, not by way of punishment to the defendant, but as mere compensation to the plaintiff, is not to be expected. That the grief natural to the death of a loved relative shall be separated from the added grief and anguish resulting from delayed information of such mortal illness or death, and compensation given for the latter only, is the task imposed by the law, as determined by the majority. But the rule in question has not been limited, as claimed, to actions based upon physical pain. It has, as we have already seen, upon the authority of Mr. Wood, been applied to actions of slander and libel. No matter how gross the insult, or how harrowing to the feelings, there can be no recovery if the slander did not imply a crime, or result in some special damage. The same rule applies in actions brought for the death of another. The plaintiff must have a pecuniary interest in such life; and in such cases there can be no recovery for the injured feelings, the grief, or anguish suffered by the plaintiff, in consequence of the death for which the suit lies. This is the rule, regardless of the relation the deceased bore to the plaintiff. Whether husband or wife, or parent or child, the rule is the same. The damages are for the pecuniary loss sustained. * * The principles upon which this suit is maintained seem to me so radical a departure from the headlands of the law, and to so seriously threaten the uprooting of doctrines that I have been taught to revere as the very foundation stones of the system of our law, upon the subject of contracts and damages, as to make it my duty to give expression to my views upon the questions involved."

In the well-considered case of Telegraph Co. v. Rogers, supra, Mr. Justice Cooper, after ably reviewing the adjudged cases, said, for the supreme court of Mississippi:

"We are not disposed to depart from what we consider the old and settled principles of law, nor to follow the few courts in which the new rule has been announced. The difficulty of applying any measure of damages for bodily injury is universally recognized and commented on by the courts. But in that class of cases demands for simulated or imaginary injuries are far less likely to be made than will be those in suits for mental pain alone. No one but the plaintiff can know whether he really suffers any mental disturbance, and its extent and severity must depend upon his own mental peculiarity. In the nature of things, money can neither palliate nor compensate the injury he has