Peay v. Western Union Tel. Co.

• Decision Date: 08 January 1898
• Parties: PEAY v. WESTERN UNION TEL. CO.
• Court: Arkansas Supreme Court

Page 965

43 S.W. 965

PEAY v. WESTERN UNION TEL. CO.

Supreme Court of Arkansas.

January 8, 1898.

Appeal from circuit court, Green county; William H. Cate, Judge.

Action by James H. Peay against the Western Union Telegraph Company. From a judgment for defendant, plaintiff appeals. Affirmed.

This action was commenced to recover damages by the appellant against the appellee for a failure to deliver promptly the following telegram, sent to appellant, at Paragould, Ark., to wit: "Central City, Ky. 6 — 23 — 1894. To James Peay, City: Sallie, Dot, Saline Smith, and Jim Maddox killed in accident at McHenry to-day. Madge Smith seriously injured. [Signed] Ed Batsill." The complaint stated that the telegram was received at Paragould, Ark., where plaintiff resided, at 9:15 o'clock p. m., and that it was not delivered until 8:10 o'clock the next morning; that, if it had been promptly delivered, the plaintiff could and would have left Paragould on a north-bound train, on the Cotton Belt Railroad, that departed thence at or about 8:30 a. m. of said morning, and would have reached McHenry, Ky., in time to have attended the funeral of the persons named in the telegram, who were killed, and to have administered to the wants of the person named therein who was injured, who, the complaint alleged, were all of close kin to the plaintiff. The complaint further alleged that, by reason of the delay in delivering said telegram, he could not leave Paragould on that road till the second morning succeeding the day of the receipt of the telegram by the company's agent at Paragould, or arrive at McHenry, Ky., until after the burial of the relatives of his who had been killed in the accident referred to; that, by reason of such delay in delivering said telegram, he was deprived of the opportunity to attend the burial of his dead relatives, or to administer to the wants of his relative who was injured; that, by reason thereof, he suffered great mental anguish, disappointment, and grief, and was damaged $1,000. A general demurrer to the complaint was sustained, and the plaintiff declined to amend. Judgment was rendered against him, and he appealed to this court.

Luna & Johnson and W. C. Rodgers, for appellant. Rose, Hemingway & Rose and Geo. H. Fearons, for appellee.

HUGHES, J. (after stating the facts).

Pretermitting discussion of other questions in the case, we proceed to consider the main and most important question involved. In considering this question, the labor of the court has been minimized in the investigation of cases by the full and excellent briefs of counsel on both sides of the question. The question we propose to consider is whether or not injury to the feelings, — anguish and pain of mind, — unattended by physical injury, occasioned by the breach of duty on the part of the telegraph company, in failing to deliver the telegram promptly, can be regarded as an element of damages, under the law. Are damages recoverable at law for mental anguish caused by the negligent omission of duty upon the part of the telegraph company, when such mental anguish is independent of and unaccompanied by physical injury of any kind? Upon this question the decisions of the courts of last resort are not harmonious.

While there is considerable conflict in the adjudged cases upon this question, we are of the opinion that the better considered cases are against the right of recovery for mental pain and anguish, unaccompanied by physical injury. The best cases we have read which so hold are Chapman v. Telegraph Co., 88 Ga. 763, 15 S. E. 901; Telegraph Co. v. Rogers, 68 Miss. 748, 9 South. 823; Francis v. Telegraph Co. (Minn.) 59 N. W. 1078; Connell v. Telegraph Co., 116 Mo. 34, 22 S. W. 345. See, also, West v. Telegraph Co., 39 Kan. 93, 17 Pac. 807; Russell v. Telegraph Co., 3 Dak. 315, 19 N. W. 408; Butner v. Telegraph Co. (Okl.) 37 Pac. 1087; Summerfield v. Telegraph Co. (Wis.) 57 N. W. 973; Curtin v. Telegraph Co. (Sup.) 42 N. Y. Supp. 1109. The first case in this country of which we have any knowledge that held damages recoverable for mental anguish, independent of physical injury, is the case of So Relle v. Telegraph Co., 55 Tex. 308, decided in 1881. Judge Lumpkin, in his able discussion of this question in Chapman v. Telegraph Co., says that the court in the So Relle Case "adopts as law a bare suggestion made by the text writers Shearman and Redfield, in their work on Negligence (volume 2, § 756); and that the cases referred to in the opinion were actions for physical injuries, of which the mental agony forms an inseparable component. The decision in the So Relle Case is followed in Texas in quite a number of other cases, and the doctrine seems to have involved that court in some inconsistencies commented upon in Telegraph Co. v. Rogers, 68 Miss. 748, 9 South. 823. This doctrine, which seems to have had its origin, in this country, in Texas, has been followed in Beasley v. Telegraph Co. (U. S. Cir. Ct. Tex.) 39 Fed. 181; Chapman v. Telegraph Co. (Ky.) 13 S. W. 880; Young v. Telegraph Co., 107 N. C. 370, 11 S. E. 1044; Wadsworth v. Telegraph Co., 86 Tenn. 695, 8 S. W. 574; Telegraph Co. v. Henderson, 89 Ala. 510, 7 South. 419; Reese v. Telegraph Co., 123 Ind. 294, 24 N. E. 163; Thomp. Electr. § 378 et seq.; and in Iowa, in Mentzer v. Telegraph Co., 62 N. W. 1. In case of Wadsworth v. Telegraph Co., 86 Tenn. 695, 8 S. W. 574, Judge Caldwell delivered the opinion of the court, and maintained his position with much ability; but we are of the opinion that the very able dissenting opinion in that case by Judge Lester announces the correct doctrine. We adhere to the doctrine announced in the cases which held that for mental pain and anguish alone, unaccompanied by physical injury, damages are not recoverable at law. We could not hope to add anything in support of this view to the able, full, and elaborate discussion of this question in the cases we have referred to.

It is not to be controverted that in cases of torts that produce physical injury, attended with mental suffering, the mental suffering is an element of damages, recoverable in an action at law, because they are so intimately connected as to make separation impracticable. So, also, damages may be recovered for torts that are willful and calculated to injure the feelings, but only in aggravation of damages, on account of the wanton and willful character of the wrong done; but no action lies for injury to the feelings merely, or for mental anguish alone. It will be borne in mind that the damages claimed in this case are alleged to have been caused by a breach of contract. In a majority of instances the breach of a contract merely causes disappointment, annoyance, and more or less mental trouble or distress. But it would be an unwarranted stretch of the law, in our opinion, to hold that, for mental anguish caused by violation of a contract...