Beaulieu v. Great Northern Ry. Co., Nos. 15,382 - (48).

CourtSupreme Court of Minnesota (US)
Writing for the CourtBrown
Citation103 Minn. 47
Decision Date27 December 1907
Docket NumberNos. 15,382 - (48).
103 Minn. 47
Nos. 15,382 - (48).
Supreme Court of Minnesota.
December 27, 1907.

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Action in the district court for Red Lake county to recover $3,000 for delay in transporting the dead body of plaintiff's child over defendant's road. From an order, Watts, J., overruling its demurrer to the amended complaint, defendant appealed. Affirmed.

M. L. Countryman, for appellant.

W. E. Dodge and Wm. A. Tautges, for respondent.


Defendant interposed a general demurrer to the complaint in this action, and appealed from an order overruling the same.

The complaint alleges, in substance, that plaintiff's child, aged three and one-half years, died at Cass Lake, and plaintiff desired that the body should be buried at Ogahmah. The body was accordingly prepared for burial, and delivered to defendant for shipment to that place. The shipment required a transfer of the casket containing the body at Erskine, where the defendant's road connects with the Soo Line, over which the plaintiff and the corpse were to reach Ogahmah. The complaint further alleges that it was the duty of defendant to put the corpse off its train at said Erskine, to the end that it might be transferred to the Soo train, but that, instead of doing so, its servants and agents wrongfully and unlawfully retained possession thereof, and "negligently, wrongfully, and unlawfully, and with utter disregard to the rights and feelings of this plaintiff," carried the corpse beyond that station, and to the city of Crookston, thus delaying the funeral arrangements for twenty four hours; that, by reason of this delay, the corpse became badly "decayed, mutilated and damaged." As to the nature and character of the injury and damage to plaintiff, it alleges:

"That said funeral was to take place at White Earth on the 21st day of July, 1906, at three o'clock p. m., as stated, and at said time and place the plaintiff had her priest and mourners in attendance, but, by reason of the premises, said funeral and burial could not take place at said time, causing this plaintiff great annoyance and damage. That, by reason of the said negligent, wrongful, and unlawful acts of said defendant, this plaintiff has been greatly damaged, and has been greatly outraged in her feelings, and has suffered great distress of mind and great mental pain and anguish, and has become sick

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and nervous, and will continue to suffer great mental pain and anguish in the future, all to the plaintiff's damage in the sum of $3,000."

The complaint charges no wilful or intentional misconduct on defendant's part, or on the part of its agents, no claim is made for actual damages and the allegations thereof, taken as a whole, show only a failure to transport the corpse of plaintiff's child to Erskine, leaving it there for reshipment over the other line to the place of destination, in accordance with its contract. The principal question for consideration, therefore, is whether on the facts stated a recovery may be had for the mental suffering endured by plaintiff in consequence of defendant's neglect.

The question whether mental anguish is a proper element of damage, either in actions in tort or for a breach of contract, has been presented to the courts in numerous cases, and there is much conflict of opinion upon the subject. According to the weight of authority, such damages may be recovered in all actions in tort where the plaintiff has suffered physical injury at the hands of the defendant, whether from malice or mere negligence (6 Current Law, 631, 8 Am. & Eng. Enc. [2d Ed.] 658); also in that class of torts where the plaintiff is subjected to some indignity, as in libel, slander, malicious prosecution, or seduction (8 Am. & Eng. Enc. [2d Ed.] 668; 13 Cyc. 44); and, again, in those wilful wrongs where some legal right has been invaded, though no physical injury is inflicted or character or reputation assailed (Lesch v. Great Northern Ry. Co., 97 Minn. 503, 106 N. W. 955; Purcell v. St. Paul City Ry. Co., 48 Minn. 134, 50 N. W. 1034, 16 L. R. A. 203; Sanderson v. Northern Pac. Ry. Co., 88 Minn. 162, 92 N. W. 542, 60 L. R. A. 403, 97 Am. St. 509).

But such damages are not recoverable in all actions in tort. Broadly stated, their allowance is limited to actions where the plaintiff has received some injury to his person, or some legal right has been invaded of a nature naturally to cause grief and distress of mind. None of the cases, as we read them, go beyond these limits. They are not recoverable in actions for death by the wrongful act of another. Hutchins v. St. Paul, M. & M. Ry. Co., 44 Minn. 5, 46 N. W. 79; Blake v. Midland Ry. Co., 18 Q. B. 93; Donaldson v. Mississippi, 18 Iowa, 280, 87 Am. Dec. 391; Munro v. Pacific Coast, 84

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Cal. 515, 24 Pac. 303, 18 Am. St. 248. Nor in actions for libeling the dead. Bradt v. New Nonpareil, 108 Iowa, 449, 79 N. W. 122, 45 L. R. A. 681; 25 Cyc. 426. Nor in actions for injuries to a minor child. Sperier v. Ott, 116 La. 1087, 41 South. 323, 7 L. R. A. (N. S.) 518, 114 Am. St. 587, and cases cited in note; Flemington v. Smithers, 2 Car. & P. 292; Bube v. Birmingham, 140 Ala. 276, 37 South. 285, 103 Am. St. 33; Black v. Carrollton, 10 La. An. 33, 63 Am. Dec. 586; County Commrs. v. Hamilton, 60 Md. 340, 45 Am. 739; Little Rock v. Barker, 33 Ark. 350, 34 Am. 44. In State v. Baltimore, 24 Md. 84, 87 Am. Dec. 600, an action by a mother for the wrongful death of her son in which she claimed the right to recover for mental anguish in addition to compensatory damages, the court said:

"According to the appellant's theory, the mother and son are supposed to live on together to an indefinite age; the one craving sympathy and support, the other rendering reverence, obedience, and protection. Such pictures of filial piety are inestimable moral examples, beautiful to contemplate; but the law has no standard by which to measure their loss."

Loss of support or loss of services is the gist of actions last referred to and compensatory damages only are recoverable, and it is immaterial whether the act complained of was wilful and malicious, or merely the result of negligence. There may be other exceptions to the general rule mentioned, as applied to actions ex delicto, but we are not concerned with them at this time.

It is also a rule of general application that mental anguish is not a proper element of damage in actions for breach of contract, though there is a class of wrongs arising out of contractual relations in which this element is permitted to enter. Illustrations of this are found in wilful and unlawful injuries to passengers upon railroad trains. There is in such cases a contract by the railroad company to carry safely the passenger to his destination, and an implied legal obligation to protect him within certain limits while the relation of passenger and carrier exists, and the courts declare that wilful or malicious violation of that duty constitutes an independent tort, for which recovery may be had for the indignity to which the passenger is subjected. Mykleby v. Chicago, St. P. M. & O. Ry. Co., 39 Minn. 54, 38 N. W. 763; Brown v. Chicago, 54 Wis. 342, 11 N. W. 356,

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911, 41 Am. 41; Walsh v. Chicago, 42 Wis. 23, 24 Am. 376; Craker v. Chicago, 36 Wis. 657, 17 Am. 504.

An exception is also made of actions for breach of promise to marry. But such actions in all essential respects partake of the nature of torts, and are so treated by the courts. Johnson v. Travis, 33 Minn. 231, 22 N. W. 624; Thorn v. Knapp, 42 N. Y. 474, 1 Am. 561; Smith v. Woodfine, 87 E. C. L. 660; Coil v. Wallace, 24 N. J. L. 291; 5 Cyc. 1021.

The rule that damages of this nature may be recovered in an action for a breach of contract properly to send and deliver a telegram has become the settled law in a number of the states, following the lead of Texas. But a majority of the courts do not concur in that doctrine. 63 Cent. Law J. 340; 1 Am. & Eng. Ann. Cas. 355, note. This court declined to follow it in Francis v. Western Union Tel. Co., 58 Minn. 252, 59 N. W. 1078, 25 L. R. A. 406, 49 Am. St. 507, where the rule laid down in the leading English case of Hadley v. Baxendale, 9 Exch. 341, was approved and followed. But it would be unprofitable to prolong this opinion by an extended discussion of the general subject.

Summarizing, it may be said that mental anguish is a proper element of damages in all actions sounding in tort, where the plaintiff has received some physical injury, or his legal rights have been so wilfully invaded as naturally to cause mental distress. It is an element to be considered in actions for a breach of contract in exceptional cases only; the principal exception being the telegram cases already referred to. And we pass to a consideration of the question whether this case comes within any of the exceptions.

In respect to the wrongful interference with the rights of preservation and burial of the dead, the courts are again somewhat at variance. Though the common law recognizes no property in the bodies of deceased persons (Weld v. Walker, 130 Mass. 422, 39 Am. 465; Reg. v. Sharpe, 7 Cox, C. C. 214), a right of possession and preservation for burial purposes is conceded by nearly all the authorities, which the law will protect (Regina v. Fox, 2 Q. B. 246; Williams v. Williams, 20 Ch. Div. 659; Larson v. Chase, 47 Minn. 307, 50 N. W. 238, 14 L. R. A. 85, 28 Am. St. 370; 3 Am. & Eng. Ann. Cas. 132, note). And any wilful or wrongful interference with that

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right by the intentional mutilation or secretion of the body subjects the wrongdoer to an action on the case, in the determination of which mental anguish is a proper element for consideration in assessing damages. The law on the subject, so far as it relates to actions in tort, is completely summed up by Mr. Justice Mitchell in Larson v. Chase, supra. It was said in that case:

"But this whole subject is only obscured and...

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