Connell v. The Western Union-Telegraph Company

• Decision Date: 16 May 1893
• Parties: Connell, Plaintiff in Error, v. The Western Union-Telegraph Company
• Court: Missouri Supreme Court

22 S.W. 345

116 Mo. 34

Connell, Plaintiff in Error, v. The Western Union-Telegraph Company

Supreme Court of Missouri, Second Division

May 16, 1893

Appeal from circuit court, Pettis county; Richard Field, Judge.

Action by Mathew Connell against the Western Union Telegraph Company for failure to promptly deliver a telegram. From an order of dismissal for want of jurisdiction, plaintiff appeals. Affirmed.

Wm. S Shirk for plaintiff in error.

(1) The court erred in sustaining defendant's motion to strike out that part of plaintiff's petition alleging mental and physical pain, distress and prostration, as the result of defendant's failure to promptly transmit and deliver the message. The defendant contracted to transmit and deliver the message promptly; it was a message for the benefit of the addresse; it failed to comply with its contract; and it is liable: first, for the amount paid for its transmission; and second, for any mental pain, agony and distress caused by its failure as an element of actual damages. Shearman and Redfield on Negligence, sec. 756; 1 Sedgwick on Damages [8 Ed.] secs. 45, 46, 47; Stuart v. Tel. Co., 66 Tex 580; S. C., 18 S.W. 351; Tel. Co. v. Nations, 18 S.W. 709; Tel. Co. v. Richardson, 79 Tex. 649; Tel. Co. v. Adams, 75 Tex. 531; Tel. Co. v Simpson, 73 Tex. 422; Potts v. Tel. Co., 18 S.W. 604; Wadsworth v. Tel. Co., 2 Pick. (86 Tenn.) 695; S. C., 8 S.W. 574; Tel. Co. v. Fatman, 73 Ga. 285; Tel. Co. v. Reynolds, 77 Va. 173; Tel. Co. Henderson, 89 Ala. 510; S. C., 7 So. Rep. 419; Beasely v. Tel. Co., 39 F. 181; Young v. Tel. Co., 107 N.C. 370; S. C., 11 S.E. 1044; Thompson v. Tel. Co., 107 N.C. 449; S. C., 13 S.E. 427; Reese v. Tel. Co., 123 Ind. 294; S. C., 24 N.E. 163; Chapman v. Tel. Co., 13 S.W. 880. (2) Mental anguish and pain is held to be a proper element of damages in the following actions: breach of promise of marriage, Bird v. Thompson, 96 Mo. 424; Burnam v. Cornwell, 63 Am. Dec., 545, and authorities cited in note; assault and battery, West v. Thomas, 22 Mo. 344; Craker v. Railroad, 36 Wis. 657 (in this case the assault was a gentle kiss); actions for malicious prosecution, Fisher v. Hamilton, 49 Ind. 341; false imprisonment, Stewart v. Maddox, 65 Ind 51; illegal issue of an attachment, Byrne v. Gardner, 33 La. Ann. 6; for libel and slander, Terwilligen v. Wands, 17 N.Y. 54; forcible abduction of daughter, McGee v. Holland, 27 N.J.L. 86; enticing away a daughter, Stone v. Heywood, 7 Allen, 118; and, for seduction, Weaver v. Bachert, 44 Am. Dec., 178, and authorities collected in note. Then why not in cases of this kind? Wadsworth v. Tel. Co., 86 Tenn. 695. (3) A telegraph company is bound to take notice, from the contents of a telegram delivered to them, whether it concerns a near relative, and is important, and that a failure to transmit and deliver it would naturally cause mental pain, anxiety and distress. Tel. Co. v. Adams, 76 Tex. 531; Tel. Co. v. Moore, 12 S.W. 949; Mabry v. Tel. Co., 51 Hun (N. Y.), 126; Pepper v. Tel. Co., 11 S.W. 783, and other authorities cited to point 1, supra. (4) And the addressee, for whose benefit the telegram was sent, may recover, particularly if he has repaid the sender the price of transmission. Wadsworth v. Tel. Co., 86 Tenn. 695; S. C., 21 American & English Corporation Cases, 161, and note on pages 181 and 182; West v. Tel. Co., 17 P. 807; Markel v. Tel. Co., 19 Mo.App. 80.

Karnes, Holmes & Krauthoff with Charles E. Yeater and G. H. Fearons for defendant in error.

(1) Mental suffering alone, unconnected with any other injury, will not support an action. 3 Sutherland on Damages, 715; Trigg v. Railroad, 74 Mo. 147. And this is the rule announced by a multitude of authorities. Dorrah v. Railroad, 65 Miss. 14; Johnson v. Wells, 6 Nev. 224; Wyman v. Leavitt, 71 Me. 227; Bovee v. Danville, 53 Vt. 183; Canning v. Williamstown, 1 Cush. 451; Walsh v. Railroad, 42 Wis. 23; Paine v. Railroad, 45 Ia. 569; Railroad v. Stables, 62 Ill. 313; Freese v. Tripp, 70 Ill. 496; Joch v. Dankewardt, 85 Ill. 331; Salina v. Trosper, 27 Kan. 544; Cowden v. Wright, 24 Wend. 429; Railroad v. Packer, 9 Bush. 455; Keyes v. Railroad, 36 Minn. 290; Clinton v. Laning, 61 Mich. 355; Hunt v. Watton, T. Raymond, 259; Flemington v. Smithers, 2 C. & P. 292; Kennon v. Gilmer, 131 U.S. 22; 2 Greenleaf on Evidence, sec. 267; 2 Wood Rys., pp. 1238, 1239; 1 Harris on Corporation Damages, sec. 223; Pierce on Railroads [Ed. 1881] 302. (2) The rule was declared to be in full force and applied in an action against a railroad company in a very recent case, in which the concurrence of Mr. Chief Justice Fuller was had. Wilcox v. Railroad, 52 F. 264. The same rule prevails where damages are claimed for mere mental effects, such as fright, annoyance and the like. Ewing v. Railroad, 23 A. (Pa. 1892) 340; Railroad v. McGinnis, 46 Kan. 109, 113; Comm'rs v. Coultas, L. R. 13 App. Cas. 222, 225 (where it was said that the principle involved was the same as in cases of mental anguish). (3) And applies to actions against telegraph companies. Gray on Com. by Telegraph, p. 147; Tel. Co. v. Hamilton, 50 Ind. 181; Logan v. Tel. Co., 84 Ill. 468; Blackeney v. Tel. Co., 12 Cent. L. J. 147; Russell v. Tel. Co., 3 Dak. 315; West v. Tel. Co., 39 Kan. 93; Burnett v. Tel. Co., 39 Mo.App. 599.

OPINION

Gannt, P. J.

This is an action for damages for the negligence of defendant in failing to deliver to plaintiff the following telegraphic message sent to him by his wife:

"Sedalia, Missouri, December 13, 1889.

"To Matt Connell, Soldiers' Home, Leavenworth, Kansas.

"Your child is dying. Mary."

The plaintiff alleged that his wife paid the customary charge, fifty cents, for its transmission, and that he had refunded that sum to her.

Plaintiff then alleges that his child died on the twenty-fourth day of December, 1889, "and that if said message had been transmitted and delivered with any degree of diligence or promptness whatever, he would have been able to be present with his said child during its last sickness and at its death; and that by reason of the great negligence and carelessness of defendant in failing to deliver said message, and of his being thereby deprived of being with his said child during its last sickness and at its death, he lost not only the fifty cents paid for sending said message, but also suffered great anguish and pain of mind and body, and was physically and mentally prostrated when he learned that his child had died and been buried without knowledge on his part of its sickness and death."

He alleges that he was an inmate of the soldiers' home from December 13, 1889, continuously, till February 21, 1890, and by the slightest diligence he could have been found. He alleges further that he is damaged in the sum of five thousand dollars, for which he prays judgment.

On motion of defendant, the circuit court struck out of the petition, the words, "But also suffered great anguish and pain of mind and body, and was physically and mentally prostrated, when he learned that his child had died and had been buried without knowledge on his part of its sickness and death." This left the action pending for the fifty cents only, and plaintiff declining to amend, the court sustained another motion to dismiss for want of jurisdiction of the subject matter of the action.

The sole question discussed by the appellant in this case is this: "Where a telegraph company is advised by the contents of a message that great mental suffering and pain will naturally result from its neglect to transmit and deliver the message promptly, can damages be recovered by the sendee for such mental agony and distress, caused by a failure to promptly transmit and deliver?"

The proposition, it will be observed, relates simply to damages arising from a breach of contract.

Prior to this time there has been but one opinion expressed in the decisions of this court, and that is clearly adverse to the contention of the appellant, and this is not questioned by the able counsel who represents the appellant, but he urges that inasmuch as telegraphy is of comparatively recent origin we should, in view of the function it performs, make an exception in the construction of the contracts made by those engaged in it and the damages which flow from a breach thereof. That an action for mental anguish disconnected with physical injury, for the breach of a contract, could not be maintained at common law, with the single exception of the breach of a marriage contract, we think is abundantly established. Wood's Mayne on Damages, 75; Lynch v. Knight, 9 House Lords 577; Walsh v. Railroad, 42 Wis. 23; Wyman v. Leavitt, 71 Me. 227; Wyman v. Leavitt, 36 Am. Rep. 303.

The subject came under review in this court in Trigg v Railroad, 74 Mo. 147. In that case, a lady, with two little children, was carried beyond the station to which she was travelling. It was not claimed that any indignity was offered, or that she suffered personal injury. The trial court instructed that the jury might award her damages for the anxiety and suspense of mind suffered in consequence of the delay in reaching her destination. This court, in reversing the cause, said: "The instruction as to the measure of damages was erroneous. Neither the anxiety and suspense of mind suffered by the plaintiff in consequence of the delay, nor the effect upon her health, nor the danger to which she was exposed in consequence of the train being stopped an insufficient length of time, were proper elements of damage in this case, as no personal injury was received by the plaintiff and no circumstances of aggravation attended the wrongful act complained of. If the anxiety and suspense of mind suffered by the plaintiff in consequence of the delay in this case is a ground of recovery,...