Summerfield v. W. Union Tel. Co.

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtWINSLOW
PartiesSUMMERFIELD v. WESTERN UNION TEL. CO.
Decision Date30 January 1894

87 Wis. 1
57 N.W. 973

SUMMERFIELD
v.
WESTERN UNION TEL.
CO.

Supreme Court of Wisconsin.

Jan. 30, 1894.


Appeal from superior court, Douglas county; Charles Smith, Judge.

Action by Fred G. Summerfield against the Western Union Telegraph Company for damages for delay in transmitting a message. Judgment for plaintiff. Defendant appeals. Reversed.

The other facts fully appear in the following statement by WINSLOW, J.:

Action for damages for delay in the delivery of a telegram. Plaintiff resided on a farm about 10 miles from the village of Iron River, Wis. His mother lived at Lisbon, N. D., with plaintiff's brother J. W. Summerfield. Defendant had an office at each of these places. October 23, 1892, J. W. Summerfield left at defendant's office at Lisbon a message addressed to plaintiff, care of Burt Clark, Iron River, reading as follows: “Mother is dying. Come immediately. J. W. Summerfield.” The fees for the transmission of the message were paid, but the evidence tended to show that the message was negligently delayed, and was not delivered to Clark until October 28, 1892, and plaintiff did not receive it until after noon of that day. Plaintiff's mother died on the 26th day of October. Plaintiff claimed that he would have gone to his mother's bedside had he received the telegram in due time, and that, by reason of his failing to receive the message until after his mother's death, he was deeply “mortified, grieved, hurt, and shocked, and suffered intense anguish of body and mind, and was thereby thrown into a state of nervous excitement and tremor, which rendered him sick, and impaired his health and strength, and that he still suffers from the effect of the same.” Upon the trial, objection was made to the reception of any evidence under the complaint, because it did not state facts sufficient to constitute a cause of action, which objection was overruled, and exception was taken.

The court charged the jury, among other things, as follows: “If you find that the message, in the exercise of ordinary diligence, considering all the circumstances of the case, was unreasonably delayed, and that, if it had been delivered with reasonable promptness, the plaintiff could and would have responded thereto, and reached his mother before her death, and that plaintiff suffered mental pain from a sense of disappointment, sorrow, chagrin, or grief at being deprived of being at his mother's deathbed, your verdict should be for the plaintiff in such sum as will fairly compensate him for his mental suffering and damages, if any, to his nervous system, caused by the shock of such mental suffering.” A verdict for the plaintiff for $652.50 was rendered, and, from judgment thereon, defendant appealed.

[57 N.W. 973]

Catlin & Butler, Carl C. Pope, and La Follette, Harper, Roe & Zimmerman, for appellant.


Mental anguish alone, caused by the negligent failure of a telegraph company to promptly transmit and deliver a message, will not sustain an action for damages by the addressee. Wyman v. Leavitt, 71 Me. 227, 230;Bovee v. Danville, 53 Vt. 183, 190;Canning v. Williamstown, 1 Cush. 451, 452;Paine v. Railway Co., 45 Iowa, 569, 573, 574;City of Salina v. Trosper, 27 Kan. 544, 564;Keyes v. Railway Co., 36 Minn. 290, 293, 30 N. W. 888;Clinton v. Laning, 61 Mich. 355, 361, 28 N. W. 125;Kennon v. Gilmer, 131 U. S. 22, 26, 9 Sup. Ct. 696;Ewing v. Railway Co., (Pa. Sup. 1892,) 23 Atl. 340; Railway

[57 N.W. 974]

Co. v. McGinnis, 46 Kan. 109, 113, 26 Pac. 453; Commissioners v. Coultas, 13 App. Cas. 222, 225.

McHugh, Lyons & McIntosh, for respondent.


“Mental anguish and suffering occasioned by the failure to deliver a telegraph message are proper elements of damage in an action against the telegraph company by the person injured, and constitute grounds for recovery, though no pecuniary loss is shown.” Telegraph Co. v. Newhouse, (Ind. App.) 33 N. E. 800; 3 Suth. Dam. 260, 645; 37 Cent. Law J. 61; Womack v. Telegraph Co., (Tex. Civ. App.) 22 S. W. 417; Bell v. Railway Co., L. R. 26 Ir. 428; Railroad Co. v. Griffin, (Tenn.) 22 S. W. 737;Beasley v. Telegraph Co., 39 Fed. 181;Telegraph Co. v. Stratemeier, (Ind. App.) 32 N. E. 871;So Relle v. Telegraph Co., 55 Tex. 310;Young v. Telegraph Co., 107 N. C. 370, 11 S. E. 1044;Reese v. Telegraph Co., 123 Ind. 294, 24 N. E. 163;Telegraph Co. v. Henderson, 89 Ala. 510, 7 South. 419;Wadsworth v. Telegraph Co., 86 Tenn. 695, 8 S. W. 574;Chapman v. Telegraph Co., (Ky.) 13 S. W. 880;Stuart v. Telegraph Co., 66 Tex. 580, 18 S. W. 351;Willson v. Railroad Co., (Wash.) 32 Pac. 468.

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

The exact question presented by the instruction of the court to the jury is whether mental anguish alone, resulting from the negligent nondelivery of a telegram, constitutes an independent basis for damages. At common law it was well settled that mere injury to the feelings or affections did not constitute an independent basis for the recovery of damages. Cooley, Torts, 271; Wood's Mayne, Dam. (1st Amer. Ed.) § 54, note 1. It is true that damages for mental suffering have been generally allowed by the courts in certain classes of cases. These classes are well stated by Cooper, J., in his learned opinion in the case of Telegraph Co. v. Rogers, (Miss.) 9 South. 823, as follows: “(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 is that the one cannot be separated from the other. (2) In actions for breach of the contract of marriage. (3) In cases of willful wrong, especially those affecting the liberty, character, reputation, personal...

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35 practice notes
  • W. Union Tel. Co. v. Chouteau, Case Number: 776
    • United States
    • Supreme Court of Oklahoma
    • May 9, 1911
    ...West Virginia, Davis v. Western Union Telegraph Co., 46 W. Va. 48, 32 S.E. 1026; Wisconsin, Summerfield v. Western Union Telegraph Co., 87 Wis. 1, 57 N.W. 973, 41 Am. St. Rep. 17; Federal, Chase v. Western Union Telegraph Co., 44 F. 554, 10 L.R.A. 464; Crawson v. Western Union Telegraph Co.......
  • Giampapa v. American Family Mut. Ins. Co., No. 00SC468.
    • United States
    • Colorado Supreme Court of Colorado
    • February 24, 2003
    ...seduction. Id. at 229-31, 134 P. at 152-53 (discussing Carter v. Oster, 134 Mo.App. 146, 112 S.W. 995 (1908); Summerfield v. W.U.T. Co., 87 Wis. 1, 57 N.W. 973 Turning to contract cases, the court discussed a Colorado case involving a willful breach of a contract of carriage. Hall, 24 Colo.......
  • Western Union Tel. Co. v. Ferguson
    • United States
    • Indiana Supreme Court of Indiana
    • May 28, 1901
    ...37 Pac. 1087;Lewis v. Telegraph Co. (S. C.) 35 S. E. 556;Davis v. Telegraph Co., 46 W. Va. 48, 32 S. E. 1026;Summerfield v. Telegraph Co., 87 Wis. 1, 57 N. W. 973, 41 Am. St. Rep. 17;Chase v. Telegraph Co. (C. C.) 44 Fed. 554, 10 L. R. A. 464;Crawson v. Telegraph Co. (C. C.) 47 Fed. 544;Tyl......
  • Peay v. Western Union Telegraph Co.
    • United States
    • Supreme Court of Arkansas
    • January 8, 1898
    ...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. Pe......
  • Request a trial to view additional results
35 cases
  • W. Union Tel. Co. v. Chouteau, Case Number: 776
    • United States
    • Supreme Court of Oklahoma
    • May 9, 1911
    ...West Virginia, Davis v. Western Union Telegraph Co., 46 W. Va. 48, 32 S.E. 1026; Wisconsin, Summerfield v. Western Union Telegraph Co., 87 Wis. 1, 57 N.W. 973, 41 Am. St. Rep. 17; Federal, Chase v. Western Union Telegraph Co., 44 F. 554, 10 L.R.A. 464; Crawson v. Western Union Telegraph Co.......
  • Giampapa v. American Family Mut. Ins. Co., No. 00SC468.
    • United States
    • Colorado Supreme Court of Colorado
    • February 24, 2003
    ...seduction. Id. at 229-31, 134 P. at 152-53 (discussing Carter v. Oster, 134 Mo.App. 146, 112 S.W. 995 (1908); Summerfield v. W.U.T. Co., 87 Wis. 1, 57 N.W. 973 Turning to contract cases, the court discussed a Colorado case involving a willful breach of a contract of carriage. Hall, 24 Colo.......
  • Western Union Tel. Co. v. Ferguson
    • United States
    • Indiana Supreme Court of Indiana
    • May 28, 1901
    ...37 Pac. 1087;Lewis v. Telegraph Co. (S. C.) 35 S. E. 556;Davis v. Telegraph Co., 46 W. Va. 48, 32 S. E. 1026;Summerfield v. Telegraph Co., 87 Wis. 1, 57 N. W. 973, 41 Am. St. Rep. 17;Chase v. Telegraph Co. (C. C.) 44 Fed. 554, 10 L. R. A. 464;Crawson v. Telegraph Co. (C. C.) 47 Fed. 544;Tyl......
  • Peay v. Western Union Telegraph Co.
    • United States
    • Supreme Court of Arkansas
    • January 8, 1898
    ...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. Pe......
  • Request a trial to view additional results

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