W. Union Tel. Co. v. Foy, Case Number: 1786

• Court: Supreme Court of Oklahoma
• Writing for the Court: SHARP, C.
• Citation: 124 P. 305,32 Okla. 801,1912 OK 434
• Parties: WESTERN UNION TELEGRAPH CO. v. FOY.
• Docket Number: Case Number: 1786
• Decision Date: 14 May 1912

1912 OK 434
124 P. 305
32 Okla. 801

WESTERN UNION TELEGRAPH CO.
v.
FOY.

Case Number: 1786

Supreme Court of Oklahoma

Decided: May 14, 1912

Syllabus

¶0 1. TELEGRAPHS AND TELEPHONES-- Operation--Failure to Deliver Message--Damages. Plaintiff, in an action for damages against a telegraph company, is not entitled to recover for mental anguish and suffering occasioned by negligence in the delivery of a telegraph message. Neither can a recovery be had for physical sickness resulting from a shock sustained at not being able to attend the funeral services of a deceased relative.

2. SAME. The fact that telegraph companies are by law in this state made common carriers, and must use the utmost diligence in the transmission and delivery of messages entrusted to them, does not change the rule at common law, with reference to their liability for damages, where the injury sustained is not the proximate and natural result of the negligent act.

Shartel, Keaton & Wells, J. G. Ralls, and George H. Fearons, for plaintiff in error.

D. H. Linebaugh, for defendant in error.

SHARP, C.

¶1 Numerous errors are charged to have been committed by the trial court, but one of which it will be necessary to consider at any length. Should the trial court have sustained the demurrer to the plaintiff's evidence? We may first consider that it may now be regarded as the law in this state, in harmony with the weight of authority elsewhere, that damages are not recoverable for mental distress alone, caused by negligent delay in delivering a telegram. Butner v. Western Union Telegraph Co., 2 Okla. 234, 37 P. 1087; Western Union Telegraph Co. v. Chouteau, 28 Okla. 664, 115 P. 879; Thomas v. Western Union Telegraph Co., 30 Okla. 63, 118 P. 370. It is, however, insisted on behalf of defendant in error that it does not follow that damages may not be recovered where sickness or physical suffering is consequent upon mental anxiety or anguish, or, as charged in the petition, that, by reason of the willful, wanton, and gross negligence of the company in not correctly and promptly transmitting and delivering the telegram, plaintiff was prevented from attending her brother's funeral, and was made sick and forced to take her bed, and sustained a great nervous shock, and by reason thereof suffered great mental anguish and pain. The distinction made is important, and we shall turn first to the testimony to ascertain whether the allegations of the petition are sustained by the testimony. The telegram was not delivered until the day following its receipt at the Atoka office. Mrs. Foy first received notice of her brother's death by telephone communication at about 10 o'clock on the night of June 10th, the day the message, incorrectly addressed, was received at the Atoka office. The following questions and answers are believed to be all that is to be found in the record touching plaintiff's physical or mental condition after being advised of her brother's death:

"Q. I will ask you what did you do after receiving this first telephone information in regard to the death of your brother, the time of burial? A. It is almost impossible to tell. I was so completely shocked. Mr. Foy was gone--at lodge I think, and did not come. It was a great shock to me. Of course, I did not know what to do, but I studied the schedules of the trains, and saw then that I could not possibly get to Norman. I do not know what I did do. I just went perfectly wild. I could not stand. I was shut off from my brother forever. Q. Mrs. Foy, what was you physical condition after getting this information? Mr. Linebaugh: I want to show the physical condition afterwards and just before that she was in good condition. This shock caused the illness that immediately followed. A. After I received the message you said? A. Yes. A. I was weak and nervous for weeks and weeks, and was not able to do anything scarcely at all, because I could not get this death message off my mind. It was continually in my mind day and night, and, of course, I kept on getting weaker and weaker until at last I got into a case of sickness I could not recover from. Q. How long have you been sick, Mrs. Foy? A. It has

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