and Mrs. Beem's codefendant was not shown to have been connected with them in any way, nor to have had knowledge that they were written. There was also evidence that the mother-in-law did and said certain things tending to show that she was trying to induce her son to leave plaintiff or not to live with her, or to believe plaintiff unworthy of his love, including the testimony of a man who "drove up with" her and her son as they were riding along the highway in a buggy, and heard her tell the son that "if you don't go away and leave that woman and stay away from her, at my death I'll will you out." At least nineteen-twentieths of the evidence tending to establish a cause of action relates to what the mother-in-law said and did, and there was evidence that plaintiff's husband blamed her for some of the trouble between him and plaintiff. But all or practically all of the acts and sayings of Malinda B. Beem were done and said when her codefendant, William Henry Beem, was not present, and there was nothing to show that he participated in them or even knew about them. There was also evidence that the defendant William Henry Beem came to plaintiff's home for her husband's registration card, intending to send the card to the young man where he was doing war work in New Jersey, and hunted for it, but that plaintiff would not let him have it, and he became angry and stopped giving plaintiff and her baby milk and provisions; but Malinda B. Beem was not present when this occurred. And there was evidence that he said certain things to plaintiff's husband (his son) at two or three different times, and said certain things to plaintiff and to the neighbors at other times, which indicated that he did not feel very kindly toward plaintiff. But in almost or quite every instance his wife and codefendant was not present, and is not shown to have known what he said and did. Defendants introduced much evidence to the effect that before the letters were written containing the alleged false statements, and before many, if not all, of the words complained of were spoken or the acts complained of were done, the plaintiff had already lost her husband's love, and he had once sued her for a divorce, and after dismissing that suit had again left her with the declared purpose of obtaining a divorce, and had consulted and employed a lawyer with that purpose. There was also evidence that the father of Malinda B. Beem owned 500 acres of land worth $40 to $45 per acre, and $600 in notes when he died, and that she was his sole heir; that he was alive at the time of the separation, when plaintiff's husband sued her for a divorce, and was dead at the time of the trial, three years later, but it was not shown when he died: and that the defendants had on the farm at and cows of a value not stated, and feeding cattle worth $550 to $660, and farm machinery worth about $1,000; but it was not shown how much of the live stock and farm machinery belonged to William Henry Beem and how much to Malinda B. Beem, and the jury was instructed in the most general terms (No. 10) that, if they found that the defendants, or either of them, were actuated by malice and ill will toward the plaintiff, they might award such exemplary damages as in their judgment was proper, under the circumstances proved, in addition to the damages which would compensate plaintiff for all her injuries. And the court also gave an instruction requested by the plaintiff (No. 1) as follows (our italics): "1. While it is the general rule that parents, in counseling and advising their children, act in good faith, and from the loftiest motives, and while they can be liable for causing a separation between their child and the husband or wife of such child only when it is shown that they acted from malice, yet, if you find from the evidence that the defendants in this case, or either of them, falsely and maliciously told and made slanderous and false statements to to plaintiff's husband falsehoods concerning her, him about her, which caused him to lose his faith and confidence in and love for her, you åre instructed that such conduct would render the defendant or defendants so offending liable to plaintiff, and your verdict should be for the plaintiff." [1] A binding instruction to "find for the plaintiff" if certain facts were found should have submitted to the jury for decision the question whether or not plaintiff possessed the love, faith, and confidence of her husband at the time those facts occurred. There was no conclusive presumption that the wife retained the love and confidence of her husband at that time, there being evidence to the contrary. And the defendants had the right to go to the jury on the question whether or not he had love for her, and faith and confidence in her, at the time they did the acts (if any) complained of. [2] As was stated above, there was no evidence directly connecting the defendant William Henry Beem with the alleged false statements about plaintiff contained in the letters from Malinda B. Beem addressed to plaintiff's husband, nor with any of the alleged oral false statements which witnesses testified they had heard her make. And the few statements concerning plaintiff which could possibly be classed as false or slanderous shown to have been made by William Henry Beem were made when his codefendant was not present, and she was not shown to have had any part in them. The general instructions that "your verdict should be for the plaintiff" if "either" defendant maliciously told her husband falsehoods by which his affections were alienated, and that exemplary (141 N.E.) fendant was actuated by malice and ill will,, think that the jury could hardly understand should not have been given. Two other in- it in a sense that would not be erroneous. structions (Nos. 3 and 7) contained the same defect of authorizing a general verdict “for the defendant" if "either" defendant had alienated her husband's affections from her, and no instruction was given which undertook to declare the circumstances under which a verdict might be found against one defendant and not against the other. What forms of verdict, if any, were submitted, other than the one which the jury adopted, is not made to appear. Giving these instructions constituted error that is not shown to have been harmless or to have been cured. [3] Instruction No. 7 was as follows (our italics): [4, 5] The instruction No. 8 submitted to the jury the question whether plaintiff's husband "had great love and affection for the plaintiff at the time of their marriage and soon thereafter," followed by quarrels, jars, and separations for short periods, and whether the defendants did certain acts after plaintiff and her husband had so separated and reunited, and concluded with a direction to "find for the plaintiff" if defendants did those things with the design to "effect a complete separation," and thereby caused plaintiff "the loss of the affections, comfort, fellowship, society, aid, and association of her husband." But it did not leave to the jury any question as to whether or not plain"If you find from the evidence in the case that the defendants, or either of them, wrote tiff possessed the affections of her husband letters to plaintiff's husband which were after the repeated quarrels, jars, and sepaceived by him in which statements were made rations and reunitings, nor whether the subof and concerning plaintiff that from their na- sequent acts of defendants which caused ture were calculated to and did impair the the final separation were prompted by ill will love and respect which plaintiff's husband had and were done maliciously. Those were estheretofore had for her, and you further find sential elements of the alleged cause of acthat the statements contained in said letters tion, without proof of which plaintiff was were falsely and maliciously made, you are instructed that the circulation of such false not entitled to recover as against her husand malicious reports. would be sufficient to band's parents. Both of such facts were conjustify you in finding that such conduct was troverted, the evidence being sharply conflictactuated by malice, and intended to destroying. Whether these facts, or either of them, the affection of plaintiff's husband for her, and your verdict should be for the plaintiff." re had been establishd by proof were questions for the jury, and an instruction to "find for the plaintiff" upon certain enumerated facts that did not include them was erroneous. There was no evidence whatever that William Henry Beem wrote any letters, and de[6] An instruction (No. 23) duly requestfendants' evidence was to the effect thated by the defendants was refused by the before the letters referred to were written court, of which the material part reads as by Malinda B. Beem plaintiff had twice left follows (our italics): her husband; that he had sued her for a divorce and withdrawn the suit at the re quest of defendants; that he had gone away to New Jersey to do "war work" in a powder mill and she had rejoiced to see him go; and that for months and years she had treated him in a manner that was far from loving. The defendants had the right to have the question submitted to the jury whether or not they believed this evidence to be true, or believed plaintiff's evidence to the contrary; and it was error for the court to assume that plaintiff's evidence was true, and direct a verdict for the plaintiff, if either defendant had maliciously made a false statement in her letters, even though written after the parties were estranged. This instruction was erroneous for the same reasons as the instruction numbered 1. The italicized part also invaded the province of the jury to determine from a consideration of all the evidence whether or not the acts of the defendants were really prompted by ill will toward plaintiff, and done with malice, or were done without malice, prompted only by the loving interest which defendants felt in their son and his welfare. The instruction is very loosely drawn, and the different parts are contradictory, but we "In determining whether the defendants, the parents of Beem, are liable for inducing him to leave his wife, said plaintiff, if you shall find that they did anything to persuade or induce him to leave and live separate and apart from her, it is proper for you to consider all the facts and circumstances in evidence, and from the evidence in the case determine whether or not the defendants did anything to induce the separation, and if they did, were they impelled by a spirit of malice and ill will toward said plaintiff or were they acting in good faith and without malice and what they considered for the best interest of said Bruce. If the latter, your verdict should be for the defendants.” This instruction correctly states the law, and should have been given. No affirmative statement of the law on this subject was contained in any instruction that was given. and mere introductory recitals to that effect in declaring the facts under which the "verdict should be for the plaintiff" were not suf ficient. [7] Plaintiff produced a letter addressed to her husband, in the handwriting of Malinda B. Beem, which recited that the writer had talked to an attorney, and stated what advice the attorney had given on the subject of the husband applying for a divorce, and asked him to "burn this as soon as you | v. Potter, 166 Ind. 471, 477, 478, 77 N. E. read it," which letter plaintiff said she found 942, 9 Ann. Cas. 481; Pollock v. Wilcox, in the pocket of her husband's coat about 68 N. C. 46, 50, 51; Murphy v. Olerding, two months after he went to New Jersey 107 Iowa, 547, 548, 78 N, W. 205; Hoblit to work in a powder factory. The defend- v. Howser, 171 Ill. App. 19, 22; Riggs v. ant Malinda B. Beem testified that after Tayloe, 9 Wheat. (22 U. S.) 483, 485, 6 L. Ed. her son went to New Jersey, leaving plaintiff 140. in Indiana, she received a letter from him [8] The rule which excludes secondary evion the subject of her going to see the said | dence of a written contract that is the founattorney, and then went to see him, and dation of an action or defense, when offered that she wrote the letter read in evidence by a party to the action who is shown to by plaintiff, and never received an answer have destroyed it unlawfully or for a frauduto it; plaintiff's husband having testified lent purpose, with knowledge that it would that it was never received by him. Mrs. be material evidence in a pending action, or Beem then testified that she did not have in an action which the party destroying it the letter she received from her son; that had reason at the time to believe would be she generally destroyed her letters, because commenced, is not applicable to the facts she did not want them lying around; that of this case. Here the letter destroyed was it was gone; that when she received let- not contractual, and could not be the foundaters she sometimes destroyed them and some- tion of a cause of action or defense; no actimes did not, and did not know about this tion was pending, and the party who deone, but believed she destroyed it; that her stroyed the letter had no knowledge that it attorney said for her and her son to burn would ever be competent as evidence in any their letters. It appeared that the letter action. It was merely a social letter from she referred to was received and answered a son to his mother, the contents of which some months before suit was commenced in became material by reason of subsequent the case at bar. It could not have evidenced events which she had no reason to foresee. any agreement relied on as the basis of an The destruction of a writing in the usual alleged cause of action or defense in any suit course of business, when it had no value that could be commenced; no suit was pend- and was not then nor likely to become eviing at the time, and it did not appear that dence in the party's favor, cannot be held she had any reason to apprehend that the presumptively fraudulent. Pollock v. Willetter she destroyed ever would be material cox, 68 N. C. 46, 50, 51. The destruction of evidence in favor of herself or of anybody letters in the natural course of business else in any future action. She was asked to which the party did not know and had no "tell the jury what was in that letter as far reason to suppose would ever be of any as you can remember." And, upon an ob- value or have any use does not exclude evijection being interposed, the defendants of- dence of their contents on behalf of the party fered to prove by the witness, in answer to who destroyed them, if it should become the question, that in the letter her son Bruce material in a suit afterward commenced. told her that he did not intend to come Hoblit v. Howser, 171 Ill. App. 19, 22. It back, and that he wanted her to go and see was error to exclude the offered evidence. the said attorney as to whether he would have to come back here in order to get a divorce, and for her to write him what the attorney said on the subject. The objection was sustained, and the offered evidence was excluded. The reason stated in the objection sustained by the court was that, "when any one destroys written evidence herself, she is not entitled to prove the contents orally;" and that is the reason by which appellee now seeks to justify the ruling. But the mere fact that a party who received a letter destroyed it is not sufficient reason for excluding evidence of its contents when they become material in the trial of a collateral action afterward commenced by a person other than the writer or the addressee of the letter by reason of another letter written in answer to it being read in evidence against the person to whom it was addressed. Rudolph v. Lane, 57 Ind. 115, 118; Schlemmer v. Schendorf, 20 Ind. App. 447. 454, 455, 49 N. E. 968; Old Nat. Bank v. From what has been said it follows that the judgment must be reversed. Therefore it is not necessary to consider, and we do not decide, whether or not the failure of a juror to disclose that he was incompetent because of his relationship to plaintiff was waived by appellant's failure to question him more closely on the subject of such relationship nor whether the effect of applause given by the plaintiff's father and friends when her attorney attacked the credibility of defendant's witnesses in argument was neutralized by a direction which the court gave the jury to disregard it, when considered in connection with an instruction to determine the credibility of the witnesses from "all the other facts and circumstances occurring in their presence." It is not probable that either irregularity will occur when the cause is again tried. The judgment is reversed, with directions to sustain the motion for a new trial. (141 N.E.) HORWITZ BROS. et al. v. DEDLOFF. (No. 11700.) and on the trial it was proved that a commission, of five cents per bag was to be paid on all onions purchased, regardless of (Appellate Court of Indiana, Division No. 1. whether they were delivered by loading or Oct. 12, 1923.) I. Appeal and error 889(3)-Complaint treated as amended to correspond with evidence admitted without objection. Where defendants made no objection to the introduction of evidence which they now claim proved a contract different from the one sued on, and in no way at the trial presented the question of an alleged variance, under Civ. Code, 130, Burns' Ann. St. 1914, § 400, the Appellate Court must treat the complaint as amended to correspond with the evidence. 2. Accord and satisfaction 26 (3)-Check marked "In full for labor to date," held not conclusive evidence of accord and satisfac tion. A memorandum on a check "in full for labor to date," held not to show conclusively an accord and satisfaction, in view of evidence that the payment made by the check referred to a contract other than the one sued on. Appeal from Circuit Court, Newton County; George A. Williams, Judge. Action by Tony Dedloff against Horwitz Bros. and another. From an order overruling a motion for new trial after a judgAfment for plaintiff, defendants appeal. firmed. as not. We have examined the evidence, which, [2] It is urged by appellants that their answer of accord and satisfaction is fully sustained by the evidence, which without conflict shows that, after the onions were purchased, appellee accepted from appellants their check for a certain sum, on the face of which check was written the memorandum, "In full for labor to date." There is, however, some evidence tending to show that the payment made by the check containing Moses Leopold, of Rensselaer, for appel- the memorandum referred to a separate con tract of employment. The evidence to support the decision in this case is not strong, but after a careful consideration we have reached the conclu sion that there is some evidence to support all material averments of the complaint. Affirmed. MYERS. (No. 11605.) (Appellate Court of Indiana, Division No. 1. Oct. 9, 1923.) REMY, J. The material averments of the complaint in this cause are, in substance, that appellee entered into a verbal contract with appellants, by the terms of which appellee was to assist appellants in locating and purchasing onions, appellants agreeing WESTERN UNION TELEGRAPH CO. v. to pay appellee for his services the sum of five cents a bag for all onions purchased by appellants, and loaded on the cars at the town of Newland. Appellants purchased 5,500 bags of onions which were delivered to them at Newland, in the purchase of which appellee, in accordance with his contract, did all that was required of him, for which the sum of $275 is demanded. Appellants answered: (1) Denial; (2) payment; and, (3) accord and satisfaction. Action of the court in overruling motion for a new trial is assigned as error. [1] Appellants urge as reasons for a new trial that the decision of the court is not sustained by sufficient evidence, and is contrary to law. It is contended that appellee failed to prove the contract alleged in the complaint, in that he avers that appellants agreed to pay him for all onions purchased and loaded on the cars at Newland, 1. Telegraphs and telephones 68 (2)-Sender of interstate telegram not entitled to damages for mental suffering alone caused by failure to transmit telegram. One who has sent a telegram to his brother in another state, informing the brother of the death of their mother, could not recover damages solely for mental suffering caused by the telegraph company's negligence in failing to transmit the telegram, since damages cannot be recovered for mental suffering not accompanied by physical injury. 2. Commerce 8(7) Llability of telegraph company for negligence in transmission or delivery of interstate message controlled by federal law. The liability of a telegraph company for negligence in transmission or delivery of an For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes interstate telegram is controlled by federal law, | 64, 60 N. E. 674, 1080, 54 L. R. A. 846. The under Act Cong. June 18, 1910, and not the reason for the rule is that mental suffering state statute (Burns' Ann. St. 1914, § 5781) alone is of too uncertain a nature to afford imposing a penalty for failure to transmit a telegram. 3. Telegraphs and telephones 59-Action for failure to transmit message is in tort. a reasonable basis for the ascertainment of compensation. The common-law rule which prevails in the federal courts, and in the courts of most states, including Indiana, is Action by sender of telegram against a tele- fully discussed by the Supreme Court of this graph company for failure to transmit telegram state in the case of Western Union Tel. Co. held an action in tort, and not for breach of v. Ferguson, supra. The opinion in that case contract; the duty to transmit being a public is perhaps the most complete and learned duty, and not merely one created by contract. discussion of the subject to be found in the Appeal from Superior Court, Marion Coun-books. An extended discussion by this court at this time is therefore wholly unnecessary, ty; Theophilus J. Moll, Judge. if not altogether out of place. Action by Ella Myers against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Reversed, with instructions. [3] It is suggested by appellee that the rule that mental anguish alone cannot be made the basis of an action for damages in negligence cases is not applicable in the case at Pickens, Moores, Davidson & Pickens and bar for the reason that the action is by the Smiley N. Chambers, all of Indianapolis, for sender, and not the sendee, of the telegram. appellant. It is argued that this action, having been Charles Mendenhall, of Indianapolis, for brought by the sender of the message, is an appellee. action ex contractu, based upon appellant's contract with the telegraph company; that REMY, J. [1] Appellee was the sender of by the character of the message appellant the following telegraphic message: "Indianapolis, Indiana, December 20, 1921. Arla King, Pelahatchie, Mississippi. Mother is dead 6:25 this Tuesday evening. Ella Myers." Appellant, the telegraph company which accepted the message for transmission, negligently failed to send it, and appellee commenced this action for damages. A trial resulted in a finding and judgment for appellee in the sum of $50.97. A new trial having been denied, this appeal is prosecuted. The only question involved is: Can the sender of a telegram addressed to the sender's brother in another state, informing such brother! of the death of their mother, recover damages solely for mental suffering caused by the negligence of the telegraph company in failing to transmit the telegram? was apprised that a failure to transmit the message would result in mental anguish to the sender; and that therefore damages for mental suffering was in the contemplation of the parties at the time they made the contract, as a probable result of a breach by the telegraph company. But the failure of the company to transmit the telegram was more than a breach of contract. It was a breach of a public duty. The contract served to cre ate the relation of duty between the parties. The action is an action in tort. Bruce v. Indianapolis Gas. Co. (1910) 46 Ind. App. 193, 92 N. E. 189; Coy v. Indianapolis Gas. Co. (1896) 146 Ind. 655, 46 N. E. 21, 36 L. R. A. 535; Western Union Tel. Co. v. Biggerstaff (1912) 177 Ind. 168, 174, 97 N. E. 531; Chapman v. Western Union Tel. Co. (1892) 88 Ga. 763, 15 S. E. 901, 17 L. R. A. 430, 30 Am. St. Rep. 183; 2 Thompson, Neg. § 2456. The sender of a telegram, like the sendee, cannot recover damages for negligence in failing to transmit or deliver a telegram where the only damage alleged or proved is mental suffering unaccompanied by physical injury. [2] The message being interstate in character, the statute of this state imposing a penalty for failure to transmit a telegram (section 5781, Burns' 1914; Acts 1885, p. 151) cannot be invoked, and the liability of the telegraph company for negligence in its transmission or delivery is controlled by federal That the sender of a telegram which law. Act June 18, 1910, 36 Stat. 539-545; through the negligence of the telegraph comWestern Union Tel. Co. v. Hanlin (1919) 73 pany was not sent or promptly delivered was Ind. App. 120, 125 N. E. 45; Western Union damaged to the amount of the price paid for Tel. Co. v. Boegli (1919) 251 U. S. 315, 40 Sup. the service will not authorize a recovery for Ct. 167, 64 L. Ed. 281. The common-law rule mental suffering. The sender's small monein such cases is the rule followed by the fed-tary loss by reason of the charge for transeral courts. The common law gives no re-mitting the telegram is fixed with certainty, dress for mental suffering when such suffer- and is wholly separable from the' damages ing is not inseparably accompanied by some suffered, if any, for mental distress. Corcorform of physical injury. Western Union Tel. an v. Postal Tel. Co. (1914) 80 Wash. 570, 142 Co. v. Sklar (1903) 126 Fed. 295, 61 C. C. A. Pac. 29, L. R. A. 1915B, 552. Since the dam281; Western Union Tel. Co. v. Chouteau ages awarded appellee, other than the small (1911) 28 Okl. 664, 115 Pac. 879, 49 L. R. A. charge paid the company to send the mes-i (N. S.) 206, Ann. Cas. 1912D, 824; Western sage, are solely for mental suffering unacUnion Tel. Co. v. Ferguson (1901) 157 Ind.companied by any physical injury, we hold |