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(2) The article in question is properly dutiable as “bitters containing spirits."' The proper name of the preparation is, in English, “Picon Bitters.” This brings it in terms within the provisions of Schedule H.
(3) Assuming that the article in question is also included within the terms of the section relating to "proprietary preparations." it is still properly duti. able under Schedule H, according to the provision that, “if two or more rates of duty should be applicable to any imported article, it shall be classified for duty under the highest of such rates." 22 St. at Large, p. 491, § 2499.
CARPENTER, J. I think this case ought to be decided by reference to the composition and use of the liquid substance which is contained in these bottles. The plaintiff claims that such substances as are included under the name "proprietary preparations” have use as medicines distinctively, and that such as are included under the paragraph beginning "cordials, liquors, arrack,” etc., have use as intoxicating beverages. I think, however, that the last-named substances, while used as intoxicating liquors, have also a use as tonics, not in the sense in which that word is commonly used, but in the sense in which it is discriminatively used in describing the operations of various substances upon the functions of the human body. That tonic effect undoubtedly is an effect distinctly different, physiologically, from the intoxicating effect. It therefore follows that the fact that this substance is not used as an intoxicating beverage, which I infer from the fact that it is not sold in bar-rooms, is not conclusive upon the question whether it be or be not a tonic. But the composition of the substance, as well as the representations of the makers of the substance, seem to me to be conclusive upon that question. With great accuracy in their advertisements and on their labels, they describe the uses of this substance, and they describe it, in the first place, to be a preservative against fevers, and, in the second place, as having "tonic properties,” and as being an “excellent restorative.” Substances having such qualities do not come within the description of remedies for disease, and I therefore find this substance in question to be under the definition of that schedule of the act under which the collector has decided it to be dutiable.
Plaintiff's counsel contends with much acuteness that the clause relating to proprietary preparations contains a specific enumeration as compared with the clause under which I find this substance to be dutiable. The words "generic" and "specific" are relative words. The name which is said, by comparison with some other name, to be “specific,” is so said because the definition given of the name alleged to be specific limits the subject under consideration more or further than the definition which is assigned to that name which is called "generic.” In this case I see no substantial difference in extent and breadth of specification between these two sections. The two names given are, in substance, "proprietary remedies" on one hand, and "spirituous beverages" or "bitters" on the other, and they seem to me to be, for practical purposes, equally general.
On the question of the tax assessed upon the bottles, I am convinced by the argument of the learned counsel that the protest is sufficient to authorize a recovery if such an error had been made as he claims to ex
ist. The substance, however, being dutiable in manner as I have de cided, it follows, I think, that the bottles are dutiable as containing “spirituous -liquors,” according to the provisions of Schedule H of the tariff act.
Judgment for the defendant.
CHASE v. WESTERN UNION TELEGRAPH Co.
(Circuit Court, N. D. Georgia. December 23, 1890.)
TELEGRAPH COMPANIES-DELAY IN DELIVERING MESSAGE-DAMAGES.
The receiver of a telegraphic message, the delivery of which has been negligently delayed, cannot recover for mental suffering alone, unaccompanied with other in
jury. (Syllabus by the Court.)
At Law. On demurrer to declaration.
NEWMAN, J. The plaintiff avers that by gross negligence the defendant delayed the delivery of a telegraphic message to him, whereby he was prevented from reaching the death-bed of a brother-in-law, and by reason of which he reached the point where the relation died several hours after death; his sister, in the mean time, being compelled to appeal to strangers for assistance, on account of which he was caused serious inconvenience, great mortification, and mental suffering. He claims punitive and vindictive damages in the amount of $5,000. To this declaration a general demurrer is filed. Can a recovery be had for mental suffering and anguish alone, unmixed with other injury? is the question presented by this demurrer. The negligence of the defendant is sufficiently averred ; and it seems to be settled in this country, contrary, however, to the English cases, that the receiver of a telegram may recover damages actually sustained by negligent delay in delivery. An examination of the adjudged cases, however, shows that the great weight of authority is against recovery in a case like this for mental suffering alone.
In the case of Relle v. Telegraph Co., 55 Tex. 308, it was held that "a telegraph company is liable for an injury to the feelings of a son by the willful neglect to deliver to him a message announcing the death of his mother, whereby he was prevented from attending her funeral.” But in the subsequent case of Railway Co. v. Lery, 59 Tex. 563, this opinion was overruled, and the court held as follows: "The plaintiff
' sued a telegraph company for delay in delivering to him a message announcing the death of his son's wife and child, whereby he was prevented from attending the funeral. Held, that there could be no recovery for his mental sui
fering.” The case of Relle v. Telegraph Co., supra, was referred to, and the court say “that it cannot be sustained upon principle, nor upon the authority of adjudicated cases.” There are later cases in Texas on this subject, but I understand them to be in harmony with the case last cited.
In the case of Wadsworth v. Telegraph Co., 86 Tenn. 695, 8 S. W. Rep. 574, this question was considered, and the majority of the court held that damages for mental suffering may be recovered. LURTON, J., with whom FOLKES, J., concurred, dissented, saying "that an action for injury to the feelings, or fright or grief, or other mental injury, cannot be sustained as an independent ground of action.” It appears that there are statutes in Tennessee requiring telegraph companies to deliver telegraphic messages "correctly, and without unreasonable delay;" and for a failure to do so the defaulting company is declared to be "liable in damages to the party aggrieved.” CALDWELL, J., who delivered the opinion of the court, lays some stress on this statute, and TURNEY, C. J., in a concurring opinion, rests his concurrence primarily upon this statute; holding that it covers all messages, and makes no distinction as to the character of messages. So that in this case a bare majority sustained the right of action for damages of this sort, and the right rested largely upon the statutes of the state.
I have found no other case that goes to this extent, nor has any such case been cited. On the contrary, quite an array of authorities deny the right to recover for damages of this character. Russell v. Telegraph Co., (Dak.)19 N.W. Rep. 408; West v. Telegraph Co., 39 Kan. 93, 17 Pac. Rep. 807; Ruilway Co. v. Levy, 59 Tex. 542, 563; Wyman v. Leavitt, 71 Me. 227; Johnson v. Wells, 6 Nev. 224; Nagel v. Railway Co., 75 Mo. 653; Railway Co. v. Stables, 62 Ill. 313; Freese v. Tripp, 70 Ill. 503; Meidel v. Anthis, 71 Ill. 241; Joch v. Dankwardt, 85 Ill. 333; Porter v. Railway Co., 71 Mo. 83; Fenelon v. Butts, 53 Wis. 344, 10 N. W. Rep. 501; Ferguson v. Davis Co., 57 Iowa, 601, 10 N. W. Rep. 906; Stewart v. Ripon, 38 Wis. 584; Masters v. Warren, 27 Conn. 293; Blake v. Railway Co., 10 Eng. Law & Eq: 442; Lynch v. Knight, 9 H. L. Cas. 577; Burke v. Railway Co., 10 Cent. Law J. 48; Rowell v. Telegraph Co., (Tex.) 12 S. W. Rep. 534; Thompson v. Telegraph Co., (N. C.) 11 S. E. Rep. 269, 30 Amer. & Eng. Corp. Cas. 634.
The telegram in this case was sent from one point in Georgia to another. Section 2943 of the Code of Georgia is as follows: "Exemplary damages can never be allowed in cases arising on contract.” The plaintiff sues for punitive and vindictive damages only. I do not understand that this character of damages can be recovered, except for an actual tort. Any right of the plaintiff in this case would be for breach of an implied con. tract to promptly deliver the telegram, and it seems that vindictive or punitive damages would never be given in a case of this kind. The demurrer to the declaration in this case must be sustained.
MASON v. BEEBEE et al.
(Circuit Court, S. D. Iowa, C. D. December 17, 1890.)
1. GARNISHMENT-PROCEDURE-JUDGMENT ON ANSWER.
Plaintiff, having obtained a judgment against defendant, garnished a corporation for which defendant was working, whose answer was as follows: The persons forming the corporation, among whom was defendant's wife, agreed to devote their time and services to it without compensation; but it was agreed that defendant's wife should contribute the services of her husband instead of her own, and that, if necessary, $25 a week was to be paid to her for her living expenses. This sum was paid her for a given time, but there was never any agreement whereby the corporation was to pay defendant anything, or whereby it employed him at all, except as a substitute for his wife, under said agreement. Held, that plaintiff was not entitled to judgment on the answer, as it does not on its face show any liability of
the garnishee to defendant. 2. SAME-CONFLICT OF Laws–EXEMPTIONS.
Where defendant is a resident of Illinois, and wages due him were earned there, the situs of the debt is Illinois, though plaintiff may have garnished the debtor while he was in Iowa, and by virtue of the principles of comity the Iowa court will apply the Illinois exemption laws to sych wages. Limiting Mooney v. Railroad Co., 60 lowa, 846, 14 N. W. Rep. 343.
At Law. Motion by plaintiff for judgment on answer of garnishee.
SHIRAS, J. The plaintiff herein obtained judgment in this court against J. T. Beebee and I. N. Rice for the sum of $449.85, on which execution was issued, and service thereof was had by garnishing the Rice-Hinze Piano Company, a corporation created under the laws of Iowa. J. C. Macy, the president and treasurer of the company, answered the garnishment on behalf of the company, and the plaintiff now moves for judgment on such answer, claiming that it appears therefrom that the garnishee, since the service of the writ of garnishment, has paid for the benefit of I. N. Rice, one of the execution debtors, the sum of $500, which amount should have been held for the benefit of the execution plaintiff.
In th answer on behalf of the garnishee the following facts are stated: The Rice-Hinze Piano Company was organized at Des Moines, Iowa, in March, 1889, and continued the manufacturing of pianos at that place until about the 1st of June, 1890, when the factory was removed to Chicago. The capital stock of the corporation was fixed at the sum of $25,000, of which J. C. Macy owned $22,000, and Mrs. L. E. Rice, wife of I. N. Rice, owned $1,000, and Mrs. Hinze $2,000; that it was agreed that the members of the company should devote their time and services to the work of the company without compensation; that when Mrs. Rice subscribed for her shares of stock, it was agreed that she should contribute the time and services of her husband in place of her own, and that if it became necessary the company should pay her, for her living expenses, the sum of $25 per week; that so long as the business was carried on at De Moines no payments were made her, but after the removal to Chicago weekly payments of $25 were made to her. Touching any arrangement between
the company and I. N. Rice personally, the answer of Mr. Macy is as follows:
"Neither the Rice-Hinze Company, nor myself, as its representative, nor myself individually, nor no other person representing either the company or myself, has ever made any arrangements, direct or otherwise with I. N. Rice, or any one representing him, for his services, except as hereinbefore stated; that is, that Mrs. Rice should contribute the services of her husband to the company in place of her own services. The money that is paid to Mrs. Rice is charged to her account on the books of the company, and I. N. Rice has absolutely nothing to do with the matter. He is not employed by the company, is not working for the company, and is not paid by the company. He is simply sent there by Mrs. Rice to represent her interests, and to fill her position, and to do the work which, under the agreement made when said company was organized, was to be done by her, and which would be done by her if she were able and capable of doing it."
On part of plaintiff it is argued that it is fairly inferable from the whole of the answer made on behalf of the garnishee that the arrangement made between Mrs. Rice and the company is merely a means of hiring 1. N. Rice, and for his services paying the agreed sum of $25 per week. It is not to be denied that there is much force in the argument, and it may be true, as claimed, that the real purpose of the arrangement was to secure the services of I. N. Rice for the company, at the price named, payment therefor to be made to his wife as a means of avoiding the claims of creditors, but I do not think the court is justified in so finding upon this motion.
To entitle an execution plaintiff to a judgment against a garnishee upon his answer alone, it must clearly appear that the liability exists. It is said by the supreme court of Iowa, in Morse v. Marshall, 22 Iowa, 290, that "in order to charge a garnishee on his answer alone there must be in it a clear admission of a debt due to, or the possession of money or attachable property of, the defendant.
If it be left in reasonable doubt, whether he is chargeable or not, he is entitled to a judgment in his favor.” The same rule is reiterated in Church v. Simpson, 25 Iowa, 408; and Hibbard v. Everett, 65 Iowa, 372, 21 N. W. Rep. 683. In the answer of the garnishee in this case there is not only not a clear admission of a debt due, but an absolute denial of any liability whatever. True, these general statements are accompanied with details intended to show the actual arrangement between the parties, and if these details, fairly construed, showed a liability on part of the garnishee, it would be so adjudged, notwithstanding the general denial of liability. The difficulty is that if we accept as true the statement of the arrangement as made by the garnishee, it does not necessarily show that the company has been indebted to I. N. Rice in the past, or will become so in the future. Suppose the answer had stated that Rice worked for the company, giving his entire time and services thereto, but that the agreement was that he should do so without receiving any pay or compensation therefor, would the court be justified in rendering a judgment against the company for what it might deem was the reasonable value of such services, upon the argument that no reasonable man would make such an