Tyler v. Western Union Tel. Co.

• Decision Date: 18 March 1893
• Parties: TYLER v. WESTERN UNION TEL. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

54 F. 634

TYLER v. WESTERN UNION TEL. CO.

United States Circuit Court, W.D. Virginia.

March 18, 1893

Statement by PAUL, District Judge:

The plaintiff in this case brought his action in the circuit court of the state of Virginia for the county of Alleghany on the 18th of January, 1892, and it was thereafter, to wit, on the 7th of June, 1892, removed into this court upon the petition of the defendant company, under the provisions of the act of congress approved March 3, 1875, entitled 'An act to determine the jurisdiction of the circuit courts of the United States, and to regulate the removal of causes from the state courts, and for other purposes.' as amended by the act of congress approved March 3, 1887. The plaintiff alleges that on the 25th day of September, 1891, the defendant company, for and in consideration of the charges then and there paid to said defendant company at Asheville N.C., by one J. W. Morgan, undertook and faithfully promised that it would carry, transmit, and convey from Asheville N.C., to the plaintiff, at Clifton Forge, Va., the following message, to wit:

'Asheville N.C. 25.

'To J. O. Tyler, City: Fred is badly hurt. Come at once.

'J W. Morgan.'

-- That said message was sent to plaintiff at Clifton Forge, Va. That it was afterwards, to wit, on September 25th, at 5:30 P.M., 1891, received duly by said defendant company at Clifton Forge, Va. That plaintiff was then and there and afterwards a citizen and resident of Clifton Forge, Va., and that he was in that place on the said 25th of September, 1891. That said message showed on its face the importance of its being promptly delivered by said defendant company to the plaintiff, but that the defendant company did not convey, transmit, and deliver the said message to the plaintiff promptly, as it was the duty of the defendant company to have done, but wrongfully held, kept, and retained possession of the same until late in the following day, to wit, september 26, 1891; whereby plaintiff was prevented from seeing his sick son, waiting upon him, and from furnishing him special medical attention, and employing learned surgeons and physicians, by whose attentions the life of his son might have been saved, and that he was prevented from seeing his son alive, whereby, the plaintiff alleges, he has suffered great agony of mind, and has been unfitted for attending to his business as he was theretofore able to do, has been impaired in his health and strength, and has suffered in mind and body, to the damage of plaintiff $4,900. The defendant in this case demurs to the declaration on the ground that an action for damages cannot be maintained where it is based on mental suffering alone.

Benjamin Haden, for plaintiff.

Robert Stiles, for defendant.

PAUL, District Judge, (after stating the case as above.)

The contention of the defendant is that damages for mental suffering can only be allowed where it is the result of and connected with a physical injury. This is clearly the doctrine of the common law, and, so far as the court is informed, there has been no departure from it in Virginia. The court has been cited to a number of decisions in other states which are an innovation on this well-established principle, but a careful reading of these cases will show that the courts rendering the decisions were compelled, in most of the cases, to seek other grounds for their justification that the naked fact of mental suffering from the negligence of the defendant. All of the cases cited were actions against the defendant in this case. The result of this class of decisions is that, if the message was such as to put the telegraph company on its guard as to its great importance, and thus bring home to its notice that its failure to promptly deliver the message would probably result in great grief and mental suffering to the sender or sendee of the message, then the action can be maintained for the mental suffering occasioned by the negligent failure of the company to deliver the message promptly. The court deems it unnecessary to enter into a critical examination of these cases and the reasoning on which their conclusions rest. The doctrine has not the sanction of the highest state court in Virginia. The question has never been directly presented to the supreme court of the United States, but the question as to when mental suffering can be considered as an element in ascertaining the...