Corcoran v. Postal Telegraph-Cable Co.

• Decision Date: 23 July 1914
• Docket Number: 11737.
• Citation: 142 P. 29,80 Wash. 570
• Parties: CORCORAN et ux. v. POSTAL TELEGRAPH-CABLE CO.
• Court: Washington Supreme Court

142 P. 29

80 Wash. 570

CORCORAN et ux. v. POSTAL TELEGRAPH-CABLE CO.

No. 11737.

Supreme Court of Washington

July 23, 1914

Department 2. Appeal from Superior Court, King County; King Dykeman Judge.

Action by Charles E. Corcoran and wife against the Postal Telegraph-Cable Company, a corporation. From a judgment for plaintiffs, defendant appeals. Reversed and remanded, with directions.

Hughes, McMicken, Dovell & Ramsey and Otto B Rupp, all of Seattle, and W. W. Cook, of New York City, for appellant.

McCafferty Robinson & Godfrey, of Seattle, for respondents.

PARKER. J.

The plaintiffs seek recovery of damages for mental suffering alone, independent of any physical injury or financial loss which they allege was caused by the defendant's negligent failure to promptly deliver a telegram sent over its lines by the plaintiff Mabel Corcoran, from Seattle, to the plaintiff Charles E. Corcoran, at St. Paul, Minn., informing him of the serious illness of their child. A trial before the court without a jury resulted in findings and judgment in favor of the plaintiff for the sum of $500, from which the defendant has appealed.

The controlling facts are not in dispute, and may be summarized as follows: Respondents live in Seattle. On September 3, 1910, Mrs. Corcoran caused a telegram to be delivered to appellant at Seattle, for transmission to her husband, then absent on a visit to his parents, in St. Paul, Minn., reading as follows:

'Mr. Chas. Corcoran, 690 Rice Str. St. Paul, Minn.: Baby very low. [Signed] Mabel.'

The usual toll of 75 cents was then paid to appellant for the transmission of the message. 690 Rice Street, St. Paul, was the address of the home of Mr. Corcoran's parents, where he was then staying. By some error of appellant's servants, occurring in the transmission of the message, the '6' became changed to '4,' so that, when it reached St. Paul, the address read '490' instead of '690' Rice street. This caused a delay in the delivery of the message to Mr. Corcoran; it being finally received by him at Seattle through the mail from his parents in St. Paul. He left St. Paul for his home in Seattle on September 8, 1910, without having received the message or any word from his wife touching the child's condition, and, upon his arrival at home in Seattle on September 11th, found that his child had died and been buried a few days previous; the funeral having been delayed as long as possible. No communication passed between Mr. and Mrs. Corcoran from the time she sent the message on September 3d to the time of his arival at home in Seattle on September 11th. The mental suffering of Mr. and Mrs. Corcoran claimed to have resulted to them from the delay in the delivery of this message is the sole ground of their claim of damages in this action, except the amount of the toll paid for the transmission of the message.

There is here presented the problem: Does mental suffering, independent of injury and financial loss, resulting from mere negligent delay in the transmission and delivery of a telegram, render the company, accepting such telegram for transmission and receiving pay therefor, liable in damages, measurable in money, to the sender and receiver whose mental suffering results from such negligent delay? Counsel for appellant contend that there is no such liability in this state, in view of the common law, which is in force here, in the absence of controlling statutory law. We have no statute in this state relating to damages of this nature. Since the beginning of civil government in the territory now occupied by our state, the common law has been the rule of decision in our courts, except where other rules are prescribed by the Constitution or statutes. It has been so declared by legislative enactment. Section 143, Rem. & Bal. Code. Indeed, it would necessarily be so, even in the absence of legislative declarations, because of the source of our civilization and institutions. We have, it is true, adapted the common law and its reason to new conditions as they arose, and thereby occasionally worked what may be regarded as innovations therein, when viewed superficially, but the spirit and reason of the common law have, as understood by our courts, always been their source of guidance when statute and Constitution were silent touching the problem in hand. What, then, are the respective rights of the parties to this controversy, measured by the rule and reason of the common law as it exists here?

That mental suffering, independent of physical injury, does not, at common law, render a person, who merely negligently causes such suffering, answerable in damages therefor is settled by the decisions of the great majority of the states of the union and by an unbroken line of decisions of the federal courts. This court indicated its adherence to this doctrine in Turner v. Great Northern Ry. Co., 15 Wash. 213, 221, 46 P. 243, 55 Am. St. Rep. 883, though the application of the rule to the situation here involved was not there under examination. Nor has the application of the rule to claimed damages for mental suffering resulting from mere negligence flowing from delay in the delivery of a telegraph message ever been the subject of inquiry in this court. In Wyman v. Leavitt, 71 Me. 227, 229 (36 Am. Rep. 303), Justice Virgin, speaking for the court, said:

'In trespass for assault and battery, the jury, may consider not only the mental suffering which accompanies and is a part of the bodily pain, but that other mental condition of the injured person which arises from the insult of the defendant's blows. Prentiss v. Shaw, 56 Me. 427 ; Wadsworth v. Treat, 43 Me. 163. Or for an assault alone, when maliciously done, though no actual personal injury be inflicted. Goddard v. Grand T. Ry., 57 Me. 202 ; Beach v. Hancock, 27 N.H. 223 ; 2 Greene's Cr. Rep. 269. So in various other torts to property alone when the tort-feasor is actuated by wantonness or malice, or a willful disregard of others' rights therein, injury to the feelings of the plaintiff, resulting from such conduct of the defendant, may properly be considered by the jury in fixing the amount of their verdict. But we have been unable to find any decided case, which holds that mental suffering alone, unattended by any injury to the person, caused by simple actionable negligence, can sustain an action. And the fact that no such case exists, and that no elementary writer asserts such a doctrine, is a strong argument against it. On the contrary, it has been held that a verdict, founded upon fright and mental suffering, caused by risk and peril, would, in the absence of personal injury, be contrary to law. Canning v. Williamstown, 1 Cush. [Mass.] 451. So it is said (in Lynch v. Knight, 9 Ho. L. 577, 598) that, 'mental pain and anxiety the law cannot value, and does not pretend to redress when the unlawful act complained of causes that alone.' Again, in Johnson v. Wells, 6 Nev. 224, 3 Am. Rep. 245, after a very elaborate examination, it was held that pain of mind, aside and distinct from bodily suffering, cannot be considered in estimating damages in an action against a common carrier of passengers. If the law were otherwise, it would seem that not only every passenger on a train that was personally injured, but every one that was frightened by a collision or by the trains leaving the track, could maintain an action against the company.'

That decision was rendered in 1880, and we deem it safe to assert that up to that time no court of any common-law state or country had ever expressed a view of the common law at variance with this. We quote from this decision as authority for this doctrine as then universally recognized, not only because of its clear statement thereof, but also because, in 1881, the year following, the law was, for the first time, thought to be otherwise in telegraph cases by the Supreme Court of Texas as expressed by its decision in So Relle v. Western Union Tel. Co., 55 Tex. 308, 40 Am. Rep. 805, which later found a following in the courts of Kentucky, North Carolina, Alabama, and Tennessee. Chapman v. Western Union Telegraph Co., 90 Ky. 265, 13 S.W. 880; Young v. Western Union Tel. Co., 107 N.C. 370, 11 S.E. 1044, 9 L. R. A. 669, 22 Am. St. Rep. 883; Western Union Tel. Co. v. Rowell, 153 Ala. 295, 319, 45 So. 73; Wadsworth v. Telegraph Co., 86 Tenn. 695, 8 S.W. 574, 6 Am. St. Rep. 864. In the case last cited, Justice Lurton, late of the Supreme Court of the United States, expressed views in harmony with the common-law rule in a vigorous dissenting opinion, concurred in by Justice Folkes. The Texas doctrine was, for a time, followed in Indiana. The Indiana court, however, has since then receded, and now adheres to the generally accepted common-law rule. The common-law rule has been applied and so throughly dealt with in telegraph cases involving delayed messages relating to sickness and death that it is unnecessary to quote from or review others. In Western Union Tel. Co. v. Rogers, 68 Miss. 748, 756, 9 So. 823, 825 (13 L. R. A. 859, 24 Am. St. Rep. 300), the court said:

'Expressions used by the courts as argument or illustration in those cases in which damages for mental suffering are recoverable because such suffering is declared to be inseparable from physical pain and injury have been seized upon as sustaining a right of action for mental suffering alone, or for such suffering coupled with the right in the plaintiff to merely nominal damages. Damages for mental suffering have been very generally allowed in three classes of cases: (1) Where, by the merely negligent act of the defendant, physical injury has been sustained, and in this class of cases they are compensatory, and the reason given for their allowance by all the courts is that the one cannot be

...