Cowan v. W.U. Tel. Co.

• Decision Date: 23 January 1904
• Citation: 98 N.W. 281,122 Iowa 379
• Parties: EDITH COWAN, Appellee, v. THE WESTERN UNION TELEGRAPH COMPANY, Appellant
• Court: Iowa Supreme Court

98 N.W. 281

122 Iowa 379

EDITH COWAN, Appellee, v. THE WESTERN UNION TELEGRAPH COMPANY, Appellant

Supreme Court of Iowa, Des Moines

January 23, 1904

Appeal from Louisa District Court.--HON. W. S. WITHROW, Judge.

ACTION for damages on account of negligence in the transmission of a telegraphic message. Verdict and judgment for plaintiff, and defendant appeals.

Affirmed.

George H. Fearons, Carr, Hewitt, Parker & Wright, and Carskadden & Burk for appellant.

Courts & Tomlinson and W. E. Blake for appellee.

OPINION

WEAVER, J.

The evidence tends to establish the following state of facts James Henry Cowan died in Louisa county, Iowa on or about January 12, 1901. Immediately upon his death, his widow, the plaintiff herein, prepared to take his body to the home of his parents and other family relatives, near Seaton, Ill for burial. To apprise these friends of the decease of her husband, and to insure their meeting her at the station upon her arrival with the body and accompanying her to the family home, some miles in the country, she sent a message by the defendant to one Robert Swearinger, who was an acquaintance of the family, and the manager of a telephone exchange at Seaton, as follows: "Harry dead. Arrive with corpse at 6 a. m. Tell Thomas. [Signed] Edith Cowan." The message was received by Swearinger in the evening, in time to have notified the parties; and he would have given the notice, and plaintiff would have been met at the station and cared for as expected by her but for the mistake or negligence of the telegraph company. As delivered by the telegraph company, the message was signed, "Edith Erwin," and Swearinger not knowing and being unable to learn of any person of that name, and not knowing for whom the message was in fact intended, did nothing with it. The relatives of the deceased, having received no notice of his death or of the coming of the widow, did not meet her at the station. Arriving there, and finding none of the friends in waiting, and no preparation made for the conveyance of herself and of the body of her husband to their destination in the country, plaintiff was much distressed in mind, and, to some extent, broken down in bodily strength. She was thereupon taken to a hotel by a brother, who accompanied her, and placed upon a couch, where she remained three or four hours, until her friends had been notified, and arrived with conveyance for her accommodation. These allegations are not in serious dispute, and upon them plaintiff seeks to recover damages. The jury returned a verdict in her favor of $ 275, and from the judgment entered thereon defendant appeals.

It will be observed that the basis of plaintiff's claim for damages is mental anguish and suffering resulting to her from the failure of defendant to properly transmit the message to Swearinger. That such damages are recoverable in a proper case was held by this court in Mentzer v. Telegraph Co., 93 Iowa 752, 62 N.W. 1, and, unless we abandon that precedent, plaintiff's right of action must be conceded. Anticipating this suggestion, counsel for appellant submit an able and elaborate argument in support of their contention that the Mentzer Case should be overruled. The decision of that case was reached only after much deliberation and a careful review of the authorities. Most of the cases now so exhaustively marshaled were then called to our attention, and their bearing and value duly considered. We are still satisfied with the result there announced, and recognize its authority as a precedent in the case before us. The opinion accompanying that decision sets forth very fully the principles upon which it is founded, and there is no occasion for their restatement at this time.

We are reminded by counsel that Reese v. Telegraph Co., 123 Ind. 294 (24 N.E. 163, 7 L.R.A. 583) cited by us in support of our decision in the Mentzer Case, has since been overruled by the Indiana court. This appears to be the case, but we must be permitted to say that, being satisfied with the strength of the reasoning and soundness of the principles announced in the first case, we are not disposed to concur in their recantation. Uniformity in judicial holdings throughout the various jurisdictions of the nation is much to be desired, and, where it prevails, no court should lightly disregard it, or introduce confusion into the precedents. But where, as upon the questions raised by this appeal, there is an irreconcilable conflict in the decisions, and respectable courts are arrayed upon either side of the controversy, we feel at liberty to adopt the theory which seems to us most logical, reasonable, and just, without special reference to the numerical preponderance of the authorities. As suggested in the Mentzer Case. "One of the crowning glories of the common law has been its elasticity and adaptability to new conditions and new states of fact. * * * Should it ever fail to be adjustable to the new conditions which age and experience bring, then its usefulness is over, and a new social compact must be entered into." It is nevertheless true that every demonstration of this elastic quality of the common law, and every readjustment made necessary by changing conditions, has been accomplished over the insistent protest and opposition of those who have professed to find in it a subtle and dangerous attack upon fundamental principles. The recognition of the right of a party under certain circumstances to recover substantial damages for physical and mental suffering has been no exception to this rule, and even yet it is the subject of much controversy. Recovery of such damages was at first sought to be confined to cases of mental suffering arising from physical injury wrongfully or negligently inflicted. So strictly and literally has this rule been applied, that in some jurisdictions it has been held that a wrongful act producing nervous shock or fright, which results in physical prostration, insanity, and death, affords no cause of action against the wrongdoer. Mitchell v. R. R., 151 N.Y. 107 (45 N.E. 354, 34 L.R.A. 781, 56 Am. St. Rep. 604) Haile v. R. Co., 60 F. 557 (9 C.C.A. 134, 23 L.R.A. 774); Ewing v. R. R., 147 Pa. 40 (23 A. 340, 14 L.R.A. 666, 30 Am. St. Rep. 709). The doctrine thus approved is so manifestly unjust, and so out of harmony with the general spirit of the law, that many courts have wholly repudiated it, while still others have limited and modified it by important exceptions. In direct opposition to the cases above cited as to damages arising from fright or nervous shock in the absence of immediate physical injury, we may note Gulf C. & S. F. R. Co., v. Hayter 93 Tex. 239 (54 S.W. 944, 47, L.R.A. 325, 77 Am. St. Rep. 856); Purcell v. R. R., 48 Minn. 134 (50 N.W. 1034, 16 L.R.A. 203); Hill v. Kimball 76 Tex. 210 (13 S.W. 59, 7 L.R.A. 618); Oliver v. La Valle, 36 Wis. 592; Stutz v. R. R., 73 Wis. 147 (40 N.W. 653, 9 Am. St. Rep. 769); Watkins v. Kaolin Co., 131 N.C. 536 (42 S.E. 983, 60 L.R.A. 617); Watson v. Dilts, 116 Iowa 249, 89 N.W. 1068.

Recovery has also been permitted for the mental suffering of a husband on account of the illness of his wife, occasioned by the negligent act of a railroad company in causing them to alight from the train at an unreasonable distance from the proper station, Brown v. R. R., 54 Wis. 342, (11 N.W. 356, 911, 41 Am. Rep. 41); also for mental suffering occasioned by the malicious prosecution of a civil action, Cohn v. Saidel, 71 N.H. 558 (53 A. 800); for mental and bodily suffering sustained by a sick person while awaiting the arrival of a physician, whose coming had been delayed by failure of a telegraph company to deliver a message sent him, Telegraph Co. v. Church, (Neb.) 3 Neb. Unoff. 22, 90 N.W. 878, (57 L.R.A. 905); for nervous shock and mental distress of a woman who was wrongfully required to leave the train upon which she was a passenger, though no physical force or violence was used in excluding her, Sloane v. R. R., 111 Cal. 668, (44 P. 320, 32 L.R.A. 193); for humiliation by wrongful arrest in the presence of family and friends, Flam v. Lee, 116 Iowa 289, 90 N.W. 70; Shatto v. Crocker, 87 Cal. 629, (25 P. 921); and for injury to feelings of one whose property has been wrongfully attached, City Bank v. Jeffries, 73 Ala. 183. Under a California statute, permitting the father to maintain an action for the death of a minor child, and providing that such damages may be given as, under all the circumstances, may be just, it is held that the parent's mental anguish may be considered by the jury in finding its verdict. Practically parallel in point of fact with this case is Telegraph Co. v. Giffin, 27 Tex. Civ. App. 306 (65 S.W. 661), and a recovery of substantial damages is there sustained. For further reaffirmation of the same principle, see Bennett v. Telegraph Co., 128 N.C. 103 (38 S.E. 294); Telegraph Co. v. Van Cleave, 22 Ky. Law Rep. 53 (54 S.W. 827); Telegraph Co. v. Fisher, 21 Ky. Law 1293 (54 S.W. 830); Telegraph Co. v. Crocker, 135 Ala. 492 (33 So. 45, 59 L.R.A. 398). Some of the foregoing cases go much farther than is necessary for us to go in disposing of this appeal, and we cite them not as adopting all their conclusions, but as indicating that the rule asserted by the appellant is not to be considered as of universal application.

In the case now sought to be overruled, we called attention to the proposition (often overlooked in discussing this much-vexed question) that in an action sounding in torte the rule allowing recovery for mental suffering is much more liberal than in actions on contract. Many of the decisions which deny the soundness of the rule adopted in the Mentzer Case expressly plant their finding upon the principle that mental suffering cannot be presumed to have been within the...