Peay v. Western Union Telegraph Co.

• Decision Date: 08 January 1898
• Citation: 43 S.W. 965,64 Ark. 538
• Parties: PEAY v. WESTERN UNION TELEGRAPH COMPANY
• Court: Arkansas Supreme Court

43 S.W. 965

64 Ark. 538

PEAY v. WESTERN UNION TELEGRAPH COMPANY

Supreme Court of Arkansas

January 8, 1898

Appeal from Greene Circuit Court, WILLIAM H. CATE, Judge.

STATEMENT BY THE COURT.

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 Arkansas, 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, Kentucky, in time to have attended the funeral of the persons named in the telegram who were killed, and to have ministered 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; and 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 one thousand dollars. 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.

Judgment affirmed.

Luna & Johnson, for appellant.

An action may be maintained for damages for mental pain and anguish, independently of physical injury. 55 Tex. 308; 59 Tex. 563; 66 Tex. 580; 69 Tex. 739; 71 Tex. 723; 71 Tex. 507; 72 Tex. 654; 73 Tex. 422; 75 Tex. 537; 75 Tex. 26; 76 Tex. 66; 76 Tex, 217; 79 Tex. 649; 80 Tex. 407; 81 Tex. 271; 82 Tex. 364; 82 Tex. 539; 82 Tex. 545; 84 Tex. 38; 85 Tex. 261; 85 Tex. 580; 1 Tex. Civ. App. 297; 86 Tenn. 695; 107 N.C. 370; 107 N.C. 449; 123 Ind. 294; 35 N.E. 564; 90 Ky. 265; 89 Ala. 510; 39 F. 181; 22 So. 73; 62 N.W. 1; 58 N.Y.S. 58; 21 S.C. 429; 43 Ark. 529; 37 S.W. 545; Gray, Com. by Telegraph, § 65; 4 Lawson, Rights, Remedies & Prac. § 1970; 2 Thompson, Neg. p. 847, § 7; Thompson, Electricity, § 379; Sedg. Dam. (8 Ed.), § 894; 1 Suth. Dam. (2 Ed.) pp. 2, 156, 157, 298 and 300; 3 ib. 975980; Sh. & Red. Neg. (2 Ed.) § 605; 29 Am. Law Rev. 212; 33 C. L. J. 5; 44 C. L. J. 176, and cases cited; Sand. & H. Dig., § 7332. As to what notice is requisite to put the company on notice of the importance of the message and the relationship of the parties, see 20 S.W. 834; 18 S.W. 709; 12 S.W. 949; 12 S.W. 860; 12 S.W. 857; 12 S.W. 41; 86 Tenn. 695. The sendee or beneficiary of the telegram can maintain the action. 20 S.W. 860; 44 C. L. J. p. 177. Even if it be conceded that there was no such action maintainable at common law as this one, the reason of it is that the exigencies which demand the rule have arisen lately, and hence the law must meet them. 62 N.W. 1; 3 Seam. 301; 1 Gray, 263, 266 and 268; 8 S.W. 580.

Rose, Hemingway & Rose and Geo. H. Fearons, for appellee.

The complaint of plaintiff fails to disclose any injury for which the law affords redress because, (1) There was nothing on the face of the telegram to put defendant on notice that the delay complained of would cause the damage alleged. 3 Suth. Damages, 216; 54 Ark. 22; 10 S.W. 323; 76 Tex. 217; S. C. 13 S.W. 70; 123 Ind. 294; S. C. 24 N.E. 164. (2) It does not appear, from the complaint, that the plaintiff's failure to attend the burial was the necessary result of the delay in delivering the telegram. Even if defendant was negligent, it was plaintiff's duty to make reasonable exertions to save himself from loss. 105 U.S. 224, 229; 105 U.S. 709; 80 F. 878; 75 Ala. 168; 2 Greenl Ev. § 267; note 3; 9 Ark. 394, 401, 402 and 403; 3 Greenl. Ev. § 51. (3) Even if the complaint properly stated a case of negligence by defendant, and the mental pain and anguish was the damage sought to be compensated, it did not state a cause of action. 3 Suth. Dam. § 225; Wood's Mayne on Damages, 75; Cooley, Torts, 270, 271, 602, 603, 604, 605; 3 Suth. Dam. § § 715, 716; 24 Ark. 61; Pierce, Railroads, 302; Pollock on Torts (Enlarged Ed.), 54, 55, 56; 2 Greenl. Ev. § 267; Thompson, Electricity, 369; Field, Damages, § 26; ib. § 73; 26 Am. & Eng. Enc. Law, p. 862; id. 855; 9 H. L. Cas. 598; 5 H. & N. 534; 2 C. & P. 131; 11 East. 27; 13 L. R. App. C. 222; 131 U.S. 22, 26 and 27; 52 F. 264; 62 Ill. 320; 60 F. 551; 45 Ia. 569; 27 Kas. 544; 10 La. An. 38; 71 Me. 227; 3 Suth. Dam. § 716, and note; 9 Barb. 459; 1 Cush. 451; 135 Mass. 153; 99 Mass. 281; 114 Mass. 518; 16 Mich. 447; 61 Miss. 355, 361; 74 Mo. 147; 47 Hun, 355; 17 N.Y. 54; 23 A. 310; 53 Vt. 190; 73 Wis. 147, 152; 59 Tex. 563; 55 Tex. 310; 151 N.Y. 107; 45 N.E. 354; 85 Ill. 331; 33 Ark. 350; 36 Ark. 41, 51, 52, 53; 53 Ark. 117, 127; 54 Ark. 404; 43 Ark. 529; 42 Wis. 23; 38 Ind. 116; 59 Tex. 563; 86 Tenn. 695 [dissenting opinion]; 57 F. 471; 44 F. 554; 47 F. 544; 54 F. 634; 55 F. 603; 59 F. 433; 52 F. 264; 133 U.S. 22; 39 Kas. 93; 17 P. 807; 3 Dak. 315; 19 N.W. 408; 68 Miss. 748; 9 So. 823; 14 So. 148; 15 S.E. 901; 88 Ga. 763; 37 P. 1087; 22 S.W. 345; 57 N.W. 973; 59 N.W. 1078; 42 N.Y.S. 1109; 151 N.Y. 107; 45 N.E. 354; 59 N.W. 1078; 9 So. 823; 15 S.E. 901; 8 S.W. 574, 581; 12 S.W. 534; 47 N.E. 88. Pecuniary detriment is necessary to recovery. 47 Ark. 344. Our statute [§ 7332, Sand. & H. Dig.] does not cover such a case as this. The damage there referred to is not mental anguish. 33 Ark. 350; 24 P. 303, 306. Plaintiff was not even entitled to nominal damages, since the telegram was delivered.

Luna & Johnson and W. C. Rodgers, in reply.

The presumption is that a telegraphic message is important. 45 C. L. J. pp. 191-192, and cases cited. If the company desired more definite information on the point, it was its duty to inquire. 33 N.E. 238; 82 Tex. 89; 42 S.W. 636; 96 Ga. 688; 85 Tex. 580; 75 Tex. 531: 72 Tex. 654; 133 Ind. 294; 82 Tex. 539; 71 N.W. 219. The delay in delivering was unwarranted and negligent. 63 Ark. 344. The doctrine of the English law is against the recovery asked in this case, but the reason is found in the fact that the sending of telegraphic messages is a newly arisen subject of litigation, and hence has no place in the English common law. L. R. 4 Q. B. 706; 29 Am. L. Rev. 220, and cases. See opinions of American text writers on the point in Thompson, Electricity, § 424; Suth. Damages (2 Ed.) 975 et seq.; 5 Lawson, Rights, Rem. & Prac. 1970; Sedgwick, Damages (8 Ed.), 894; Gray, Comm. by Telegraph, § 65; 29 Am. L. R. 221; Hall, Damages, 103 et seq.; 31 Am. Law Rev. 589. A telegraph company is a common carrier. 13 Cal. 422; 44 Neb. 326; 105 U.S. 460, 464; 4 S.D. 105; 106 Md. 178; 29 Am. L. Rev. 224; 17 Neb. 126, 134; 53 Ark. 434. Primitive damages may be awarded in this case. 22 So. 474; 30 Ark. 612; 15 Ark. 555; 19 Ark. 51, 62; 20 Ark. 332; 58 Ark. 136. Gross negligence of defendant is not necessary to a recovery. 69 Tex. 739; 72 Tex. 654; 58 Ark. 354, 357. Plaintiff is entitled to both primitive and compensatory damages in this case. 22 So. 474, 475; 54 Tex. 131-133; 53 Ark. 434; 58 Ark. 354-357; 33 S.W. 742; 85 Tex. 580; 76 Tex. 66. The rights of plaintiff having been infringed, he is entitled to redress. 2 Ld. Raym. 938, 958; 3 Bl. Comm. 23; 3 Sumner, 189, 190; 58 Conn. 1; 6 Mod. 45, 46, 53; 23 A. 1027; 27 Am. L. Rev. 1; 9 H. L. Cas. 580.

OPINION

HUGHES, J., (after stating the facts.)

Pretermitting discussion of other questions in this case, we proceed to consider the main and more 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 W. U. Telegraph Co., 88 Ga. 763, 15 S.E. 901; W. U. Telegraph Co. v. Rogers, 68 Miss. 748, 9 So. 823; S. C. 9 So. 823; Francis v. Western Union Telegraph Co., 58 Minn. 252, 59 N.W. 1078; Connell v. W. U. Telegraph, Co., 116 Mo. 34, 22 S.W. 345; See also West v. W. U. Tel. Co., 39 Kan. 93, 17 P. 807; Russell v. W. U. Tel. Co., 3 Dak. 315, 19 N.W. 408; Butner v. W. U. Tel. Co. (Oklahoma), 2 Okla. 234, 37 P. 1087; Summerfield v. W. U. Tel. Co., 87 Wis....