W. Union Tel. Co. v. Foy

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

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 been seven weeks since I was taken sick. Q. What was your physical condition up until the time you were taken sick? A. I was in very good health. Q. Did you have a physician to attend you? A. No, sir. Q. Had no doctor? A. Not at that time. Q. How long was it after that until you had a doctor? A. Not until seven weeks ago. Q. Who was your family physician? A. Fulton. Q. The case that you had him in was a case of pneumonia? A. That was what the doctor stated. Q. You never studied medicine did you? A. No, sir. Q. When your brother phoned you that your brother Jim was dead, you commenced crying? A. Yes, sir. Q. And, of course, you grieved over his death very much? A. Of course. Q. Was your grief made greater by the knowledge that you could not see him before his burial? A. Yes, sir. Q. And from that time until the present you gradually went down until about seven weeks ago, when you went to your bed? A. Yes, sir. Q. Now you stated that because you were not able to be there at the funeral you grieved over that? A. Yes, sir. Q. If you had been there, you would have grieved also? A. Yes, sir; of course, not so much. Q. The greater part of your grief was caused on account of your brother's death. A. Not being able to see him any more, it seemed to me not forever-- Q. Was not the greater part of your grief caused on account of your brother's death? A. Why, yes, sir."

¶2 Dr. J. S. Fulton testified that he had been Mrs. Foy's family physician between eleven and thirteen years; that prior to June, 1909, the general condition of Mrs. Foy's health was good; that pneumonia was a germ disease with a local manifestation in the lungs, and that probably no cause contributed towards the development of this disease more than exposure; that great grief might weaken the constitution, and hasten illness. Other testimony given was in the form of answers to abstract questions as to how pneumonia might be contracted. This was all the testimony that was offered in support of the allegations of the injury sustained. Plaintiff's suit was filed September 11, 1909. According to her testimony, she did not call in her family physician until about January 1, 1910, though Dr. Fulton's testimony fixed the date a few weeks earlier, but months after the action had been instituted. Where physical sickness follows as a result of a nervous shock or of mental anxiety and distress, in the absence of any proof of gross or wanton negligence, is a telegraph company liable for delay in delivering a telegram announcing the death of a relative, whereby and on account of the negligent...