Mentzer v. The Western Union Telegraph Co.
| Decision Date | 09 February 1895 |
| Citation | 62 N.W. 1,93 Iowa 752 |
| Parties | J. D. MENTZER v. THE WESTERN UNION TELEGRAPH COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Linn District Court.--HON. J. H. PRESTON, Judge.
This is an action at law to recover damages from defendant for negligently failing to deliver a telegram notifying plaintiff of the death of his mother, in the state of Ohio, whereby he was prevented from attending her funeral. There was a trial to a jury, verdict and judgment for plaintiff for the sum of one hundred dollars, and defendant appeals.
Affirmed.
Mills & Keeler for appellant.
Heins & Heins for appellee.
OPINION
There was testimony tending to show, and the jury may well have found that on the eleventh day of April, 1892, one H. Dorn delivered to the defendant, at Creston, Ohio, to be transmitted to plaintiff, at Cedar Rapids, Iowa the following telegraphic message: That Dorn paid the regular charges for transmitting the same, and, at the time of the delivery of the message, informed defendant's employe in charge of the office at Creston that it was plaintiff's mother who was dead. That the message reached defendant's office at Cedar Rapids at 9:16 A. M., April 11, 1892, but through the negligence and carelessness of defendant's employes, was not delivered until 9 P. M. April thirteenth. The plaintiff inquired at defendant's office at Cedar Rapids at about seven o'clock in the evening of April eleventh, and was informed there was nothing there for him. It is shown beyond dispute that plaintiff's mother died at Creston, Ohio, on April 11, 1892, and was buried on the thirteenth, and that, by reason of the failure of defendant to deliver the message informing plaintiff of her death, he was prevented from attending her funeral. There was also testimony tending to show that plaintiff lost some time from his work, in trying to discover whether a message had been sent him or not. The court gave the jury the following instruction with reference to the measure of damages, in the event they found plaintiff entitled to recover:
It is first insisted by appellant's counsel that the plaintiff cannot recover because he made no contract with the defendant, and is not in privity with it; that the action is founded on contract, and therefore he cannot maintain the suit. Such, no doubt, is the rule in England. But the courts of this country almost universally hold to the contrary. In the recent case of Herron v. Telegraph Co., 90 Iowa 129, 57 N.W. 696, we had occasion to consider this question; and the holding there, which is in accord with the current of judicial opinion in this country, was that the person to whom the message was addressed might maintain an action for the damages sustained by him.
II. It is conceded by appellant's counsel that plaintiff suffered damages under the first two heads covered by the instruction, to the amount of one dollar, and no complaint is made of the charge, so far as it relates to these two items. The objection to the instruction is that it allows the jury to assess damages for "mental anguish," and it is contended that such damages are not allowable in actions of this kind. Counsel also insists that, if such damages are recoverable in any case, they should not be allowed here, for the reason that the testimony negatives any such suffering on the part of plaintiff as would entitle him to recover. Disposing of this last proposition first, we have to say that there is sufficient testimony in the record to justify the conclusion that the plaintiff did suffer as claimed. The evidence discloses such conduct on the part of plaintiff in inquiring for a message at the office of the defendant company, and in the efforts put forth by him to ascertain if a death message had come, as to evince mental anxiety. Plaintiff says he was desirous of attending his mother's funeral, and that he felt "hard" because of the delay in the delivery of the message. He immediately telegraphed to ascertain if he could be present at the funeral, and took up his journey to Ohio, to be in attendance upon the burial. When he called at defendant's office, after the receipt of the message, he was excited and anxious. He complained of the delay, and wanted to know why the message was not delivered at his house. We think these declarations, and this course of conduct, clearly indicate that plaintiff did suffer as charged. We have, then, the question as to whether damages for mental suffering can be recovered in actions of this kind, independent of any physical injury, where the company is advised of the character of the message, and negligently fails to deliver it. This question has been variously decided by the different courts of the country, but, up to this time, is an open one in this state. The following cases answer the proposition in the affirmative: So Relle v. Telegraph Co., 55 Tex. 308; Stuart v. Telegraph Co., 66 Tex. 580, 18 S.W. 351; Railway Co. v. Miller, 69 Tex. 739, 7 S.W. 653; Telegraph Co. v. Broesche, 72 Tex. 654, 10 S.W. 734; Telegraph Co. v. Simpson, 73 Tex. 422, 11 S.W. 385; Telegraph Co. v. Adams, 75 Tex. 531, 12 S.W. 857; Womack v. Telegraph Co. (Tex. Civ. App.) 22 S.W. 417; Telegraph Co. v. Carter (Tex. Civ. App.) 21 S.W. 688; Wadsworth v. Telegraph Co., 86 Tenn. 695, 8 S.W. 574; Railroad Co. v. Griffin (Tenn.) 22 S.W. 737; Reese v. Telegraph Co., 123 Ind. 294, 24 N.E. 163; Telegraph Co. v. Stratemeier (Ind. App.) 32 N.E. 871; Telegraph Co. v. Newhouse (Ind. App.) 33 N.E. 800; Telegraph Co. v. Henderson, 89 Ala. 510, 7 So. 419; Thompson v. Telegraph Co., 106 N.C. 549, 11 S.E. 269; Young v. Telegraph Co., 107 N.C. 370, 11 S.E. 1044; Thompson v. Telegraph Co., 107 N.C. 449, 12 S.E. 427; Chapman v. Telegraph Co., (Ky.) 13 S.W. 880; Telegraph Co. v. Stephens (Tex. Civ. App.) 21 S.W. 148; Logan v. Telegraph Co., 84 Ill. 468. And perhaps others. While perhaps equally as large a number answer it in the negative. See the following: Telegraph Co. v. Wood, 6 C.C.A. 432; Russell v. Telegraph Co. (Dak.) 19 N.W. 408; West v. Telegraph Co. (Kan.) 17 P. 807; Telegraph Co. v. Rogers (Miss.) 9 So. 823; Chapman v. Telegraph Co., 88 Ga. 763, 15 S.E. 901; Connell v. Telegraph Co. (Mo. Sup.) 22 S.W. 345; Telegraph Co. v. Saunders (Fla.) 14 So. 148; Summerfield v. Telegraph Co., (Wis.) 57 N.W. 973; Francis v. Telegraph Co. (Minn.) 59 N.W. 1078. Perhaps other cases announcing the same rule may be found. Of the text writers: Shearman & R. Neg. p. 692, section 605; Thompson Electr. section 379; 3 Sutherland Dam. sections 975-980, inclusive; 2 Sedgwick Dam. section 894, and others, hold that such damages may be recovered, while Wood's Mayne, Dam. p. 74; Cooley, Torts, 271,--and others, seem to deny it. The general rule which has come down to us from England, no doubt, is that mental anguish and suffering resulting from mere negligence, unaccompanied with injuries to the person, cannot be made the basis of an action for damages. See Lynch v. Knight, 9 H. L. 577; Hobbs v. Railroad Co., L. R. 10 Q.B. 122. And doubtless this is the rule of law to-day in all ordinary actions, either ex contractu or ex delicto. But it must be remembered that there are exceptions to the rule, and that the telegraph, as a means of conveying intelligence, is comparatively a new invention. The general rule above referred to was adopted long before the electric current was harnessed and made subservient to the will of man. One of the crowning glories of the common law has been its elasticity, and its adaptability to new conditions and new states of fact. It has grown with civilization, and kept pace with the march of events, so that it is as virile to-day, in our advanced state of civilization, as it was when the race was emerging from the dark ages of the past. 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.
Let us look at this query, then, upon principle and see if such damages are recoverable. And first we must determine the nature, objects, and purposes of telegraph companies; their legal status and duties to the public, and to those with whom they do business; then the nature of the action; and, finally, the elements of damage which may be recovered, either by reason of their breach of contract or because of their failure to perform their duties,--and see if there is any reason known to and recognized by the law, why such damage should not be allowed. Far be it from our purpose to make law. We cannot legislate, but will discover, if we can, whether there are any precedents for recovery lying in the ashes of the past.
What then, is the nature, purpose, and object of the telegraph, and what is its legal status? It is a system of appliances conducting the electric current or fluid, used for the purpose of transmitting intelligence, thought, or news from one place to another. Somewhat akin is it to a common carrier, in this: that...
To continue reading
Request your trial