Butner v. W. Union Tel. Co.
| Citation | 2 Okla. 234,37 P. 1087,1894 OK 14 |
| Parties | S. T. BUTNER v. THE WESTERN UNION TELEGRAPH COMPANY |
| Decision Date | 07 September 1894 |
| Court | Supreme Court of Oklahoma |
¶0 1. An act of the territorial legislature which regulates the order of receipt and transmission of telegraphic messages, and prescribes a penalty for its violation, but which does not attempt to regulate the delivery of messages outside the territory, or of messages sent from without the territory, is not in conflict with the constitutional pro vision giving to congress the right to regulate commerce between the states and territories.
2. Paragraph 543, of the Oklahoma Statutes of 1890, imposing a penalty of fifty dollars upon carriers of messages for certain breaches of duty, does not apply to a failure to deliver a message, but only applies to the failure to receive or transmit messages in the order presented. It is a penal statute and must be strictly construed.
3. The sendee of a telegraphic message can not maintain an action against a telegraph company for neglect, delay or non-delivery of a message in the absence of a showing that it was sent by his agent or was sent for his benefit, and that the carrier had actual or constructive notice that it was so sent for the benefit of the sendee.
4. The terms, "carelessly, wrongfully and negligently, failed and neglected" to deliver a message, used in a complaint, import ordinary and simple negligence, and nothing more.
5. Damages for mental pain and suffering alone, occasioned by the negligence of a telegraph company in failing to deliver a message announcing the death of a relative, can not be recovered.
Error from Logan County.
J. A. Baker and Allen Carruthers for plaintiff in error.
Asp, Shartel & Cottingham for defendant in error.
The opinion was delivered by
¶1 The plaintiff in error filed his complaint in the district court of Logan county against the defendant in error to recover damages for delay in the delivery of a telegram.
¶2 The complaint alleges, in substance, that the plain- tiff is a resident of Logan county, Oklahoma, and that the defendant was, on the 1st day of January, 1893, a corporation, duly organized under the laws of the state of New York, for the transmission of messages by wire for reward, and owned and operated a telegraph line from Mulvane, in the state of Kansas, to Guthrie, in Oklahoma Territory, and was, at said time, a common carrier of messages for reward between said last named places.
¶3 That on said date defendant received a message at Mulvane, Kansas, for transmission to plaintiff, and received the usual charges thereon; that said message was from plaintiff's son-in-law, John Payne, and announced the death of plaintiff's daughter, and is of the following tenor:
¶4 It is further alleged that defendant negligently, carelessly and wrongfully, and without fault of plaintiff, failed to deliver said telegram to plaintiff, or the person in whose care it was addressed, for a period of forty-eight hours after the transmission of said message to Guthrie, O. T.; that by reason of the said careless and negligent conduct of defendant, plaintiff was not informed of the death of his daughter until two days after her said death.
¶5 That after receiving said message plaintiff was unable to communicate the death of his daughter to his immediate family and the members of his household who were near relatives, and warmly attached to plaintiff's deceased daughter, in time for them to attend her funeral, and they were deprived of attending her funeral. The plaintiff was unable to make a respectful and proper preparation for attending the funeral of his daughter.
¶6 That by reason of such negligence and carelessness upon the part of defendant, plaintiff has suffered great mental pain, distress, humiliation and mortification, to his damage five thousand dollars, for which he prays judgment.
¶7 To this complaint the defendant demurred for the reason that the facts alleged were not sufficient to constitute a cause of action.
¶8 The district court sustained the demurrer, and plaintiff refusing to plead further, judgment was rendered for defendant for casts, and complaint dis- missed.
¶9 The ruling of the court, in sustaining the demurrer, is complained of as error.
¶10 It appears from the briefs of counsel that there is a contention as to whether this is an action to recover for breach of contract or for a tort. From our view of the case this question is immaterial. The main question to be determined is whether mental pain or anguish, alone, resulting from the negligent non-delivery of a telegram, constitutes an independent basis for damages.
¶11 On this question there is a conflict of authority which is irreconcilable. The question is an open one in this territory, and, in establishing a precedent, this court should adopt that rule which best commends itself to reason and justice, and is based on the soundest principles of law and logic.
¶12 The English courts have invariably held that mental suffering alone, unaccompanied with any physical or corporal injury, cannot be the basis for the recovery of damages, except in such cases as seduction, false imprisonment, libel, slander, breach of promise of marriage, malicious prosecution, and other tortious wrongs committed with a wilful or malicious intent to do the wrong. In all these instances, unless there exists some corporal injury, the right to recover damages for mental suffering depends upon the element of positive wrong, wilfully or maliciously perpetrated The allegations of the complaint in this case do not bring it within such rule, as only ordinary negligence is alleged.
¶13 K. P. Ry. Co, vs. Painter, 14 Kan. 37.
Gregory vs. R. R. Co., 112 Ind. 385, 14 N.E. 228.
¶14 The American courts seem to have followed the rule of the English courts until the case of SoRelle vs. Telegraph Co., 55 Tex. 308, was decided by the supreme court of Texas in which it was held that damages might be recovered in an action for non-delivery of a telegraphic message similar to the case at bar.
¶15 The principle of this case has been followed with some variations by the same court in many cases since that decision, and its reasoning has been substantially adopted by the courts of last resort in the states of Indiana, Kentucky, Tennessee, Alabama and North Carolina.
¶16 R. R. Co. vs. Richardson, 79 Tex. 649, 15 S.W. 689.
¶17 On the other hand the right to recover damages for mental anguish occasioned by the delay or non-delivery of a telegraphic message has been expressly denied, and the doctrine condemned by the highest courts in the states of Georgia, Florida, Mississippi, Missouri, Kansas, Dakota, Wisconsin, Nevada, the United States circuit court of appeals, and by practically the unanimous current of authority in the federal courts.
¶18 Crawson vs W. U. Tel. Co., 47 F. 544.
¶19 If the authorities holding the affirmative of this proposition presented uniformity of the result obtained, and harmony in the reasoning attempted in support of it, the array would be formidable. Their force, however, is weakened by self-evident disparity of reasoning and conflict of result. Some hold that mental anguish is not a cause of action but is merely a dependent incident to be taken into consideration in addition to pecuniary damages shown; while others assert that it is an independent cause of action, a distinct element of damage. Some hold that negligence sufficient to uphold a recovery must be wilful, others that simple negligence will suffice. Some uphold the recovery on the ground of punishment, others upon the ground of compensation, and some blend both grounds. This conflict exists not only between the courts of the different states, entertaining this view. but in one instance is exhibited in the decisions of a single state. The supreme court of Texas, in the course of its adjudications upon this subject, has held both the affirmative and the negative of all the propositions above enumerated. Numerous other conflicts exist among the decisions of that court, notably the affirmance and the denial of the rule that the sendee, before he can recover, must identify himself with the contract of transmission.
¶20 The Tennessee and Alabama cases are not authority in favor of the plaintiff's position because they refuse to recognize mental pain as an element of damage. They hold it to be an incident, merely, to be taken into consideration in addition to pecuniary loss.
¶21 There is a decided weight of authority against the right of the plaintiff in error to recover for mental suffering.
¶22 But we are constrained to rely upon...
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