Summerfield v. W. Union Tel. Co.

Citation57 N.W. 973,87 Wis. 1
PartiesSUMMERFIELD v. WESTERN UNION TEL. CO.
Decision Date30 January 1894
CourtUnited States State Supreme Court of Wisconsin

OPINION TEXT STARTS HERE

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.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 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 security, or domestic relations of the injured party.” To this latter class belong the actions of malicious prosecution, slander and libel, and seduction, and they contain an element of malice. Subject to the possible exceptions contained in the second and third of the above classes, it is not believed that there was any case,--certainly no well-considered case,--prior to the year 1881, which held that mental anguish alone constituted a sufficient basis for the recovery of damages. In that year, however, the supreme court of Texas, in So Relle v. Telegraph Co., 55 Tex. 308, decided that mental suffering alone, caused by failure to deliver such a telegram as the one in the present case, was sufficient basis for damages. The principle of this case has been followed with some variations, by the same court, in many cases since that decision, and its reasoning has been substantially adopted by the courts of last resort in the states of Indiana, Kentucky, Tennessee, North Carolina, and Alabama, in cases which are cited in the briefs of counsel. On the other hand, the doctrine has been vigorously denied by the highest courts in the states of Georgia, Florida, Mississippi, Missouri, Kansas, and Dakota, and by practically the unanimous current of authority in the federal courts. All of these cases will be preserved in the report of this case, and the citations need not be repeated here. The question is substantially a new one in this state, and we are at liberty to adopt that rule which best commends itself to reason and justice. It is true that it has been held by this court, in Walsh v. Railway Co., 42 Wis. 32, that, in an action upon breach of a contract of carriage, damages were not recoverable for mere mental distress; but, as we regard this action as being in the nature of a tort action, founded upon a neglect of the duty which the telegraph company owed to the plaintiff to deliver the telegram seasonably, that decision is not controlling in this case. The reasoning in favor of the recovery of such damages is, in brief, that a wrong has been committed by defendant which has resulted in injury to the plaintiff as grievous as any bodily injury could be, and that the plaintiff should have a remedy therefor. On the other hand, the argument is that such a doctrine is an innovation upon long-established and well-understood principles of law; that the difficulty of estimating the proper pecuniary compensation for mental distress is so great, its elements so vague, shadowy, and easily simulated, and the new field of litigation thus opened up so vast, that the courts should not establish such a rule. Regarding, as we do, the Texas rule as a clear innovation upon the law as it previously existed, we shall decline to follow it, and shall adopt the other view, namely, that for mental distress alone, in such a case as the present, damages are not recoverable. The subject has been so fully and ably discussed in opinions very recently delivered that no very extended discussion will be attempted here. We refer specially to the opinions in Telegraph Co. v. Rogers, (Miss.) 9 South. 823;Connell v. Telegraph Co., (Mo. Sup.) 22 S. W. 345; Telegraph Co. v. Wood, 57 Fed. 471. See, also, Judge...

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