Wadsworth v. Western Union Tel. Co.

• Decision Date: 01 April 1888
• Citation: 8 S.W. 574
• Parties: WADSWORTH <I>et al.</I> <I>v.</I> WESTERN UNION TEL. CO.
• Court: Tennessee Supreme Court

8 S.W. 574

WADSWORTH et al.v.

WESTERN UNION TEL. CO.

Supreme Court of Tennessee.

April Term, 1888.

Appeal from circuit court, Shelby county; L. H. ESTES, Judge.

John D. Martin, for appellants. Turley & Wright, for appellee.

CALDWELL, J.

This suit was brought in the circuit court at Memphis, by Mrs. Jennie H. Wadsworth and her husband, T. J. Wadsworth, against the Western Union Telegraph Company, for failing to promptly deliver to her the following telegraphic messages: "MEMPHIS, October 2, 1887. To Mrs. T. J. Wadsworth, Byhalia, Miss.: Your brother, Billie Howell, is in a dying condition at 105 Jefferson St. R. C. WALDEN." And: "MEMPHIS, October 3, 1887. To Mrs. T. J. Wadsworth, Byhalia, Miss.: Mr. Howell died this morning. Advise us what to do. Will look for some one on morning train. R. C. WALDEN." It is averred in the declaration that Byhalia is about 28 miles from Memphis, and that the two places are connected by direct line of telegraphic wire and railroad; that Billie Howell, a brother of Mrs. Wadsworth, one of the plaintiffs, was "seized with a mortal malady," in the city of Memphis, on the 2d day of October, 1887, and that, at about the hour of 7 o'clock P. M. of that day, R. C. Walden, a "friend of the family," presented to the defendant the former of the messages just set out, written upon one of its day or full-rate blanks, and that it was accepted by the defendant for immediate transmission and delivery to her; that through the gross, wanton, and reckless negligence of the defendant, and in palpable violation of its duty, the message was by the defendant detained, and not delivered until about 11:30 o'clock A. M. of the next day, and several hours after the death of Howell; that he died about 6:30 o'clock A. M. on the 3d of October, 1887, and a few moments thereafter the second of said telegrams was presented and accepted for immediate transmission and delivery, as was the other one, and that, through the same gross, wanton, and reckless negligence of the defendant, this second message was detained, and not delivered by the defendant, until about the same time the other one was delivered; that, by reason of this negligence and breach of duty on the part of the defendant, Mrs. Wadsworth was prevented from attending her dying brother and administering to him in his last hours, and also from making desired preparations for his interment; that the messages were sent at her expense; and that she paid full toll therefor, — "to her damage ten thousand dollars." Demurrer was sustained, and the suit dismissed. Plaintiffs have appealed in error.

The first assignment of demurrer is that the declaration shows no cause of action, in that it avers no pecuniary damage or personal injury; that mental suffering, unaccompanied by pecuniary injury, will not sustain an action. Clearly, the declaration discloses a case for some damage; and to this extent, it must be conceded, the action in sustaining the demurrer was erroneous. The messages in question were couched in decent language, and were lawful in their purpose. Such being true, Walden had a legal right to send them, and Mrs. Wadsworth a legal right to receive them; and it was the plain duty of the defendant to deliver them promptly. Its dereliction of duty, and violation of her legal right, as averred in the declaration, and confessed in the demurrer, unquestionably gave her a right of action. "Every infraction of a legal right, in contemplation of law, causes injury. This is practically and legally an incontrovertible proposition. If the infraction is established, the conclusion of damages inevitably follows." 1 Suth. Dam. 2.

But the question most debated at the bar by learned counsel, and the one of most importance and interest in this case, is whether or not injury to the feelings, anguish, and pain of mind, occasioned by the defendant's breach of duty to Mrs. Wadsworth, can be regarded as an element of damage, under the law. In actions for personal injury, the general rule, which is too familiar to admit of citations of authority to sustain it, is that both bodily pain, and mental suffering connected therewith, are to be considered by the jury in estimating the amount of damage sustained, and the sum to be recovered by the plaintiff. Upon the latter element, it is very truthfully and appropriately remarked by a learned author that "the mind is no less a part of the person than the body, and the sufferings of the former are sometimes more acute and lasting than those of the latter. Indeed, the sufferings of each frequently, if not usually, act reciprocally on the other." 3 Suth. Dam. 260. After laying down the rule as we have stated it to be, and citing some of the very many decisions adopting it, Mr. Wood says: "But we do not apprehend that the rule has any such force as to enable a person to maintain an action where the only injury is mental suffering, as might be thought from a reading of the loose dicta and statements of the court in some of the cases. So far as I have been able to ascertain the force of the rule, the mental suffering referred to is that which grows out of the sense of peril or the mental agony at the time of the happening of the accident, and that which is incident to and blended with the bodily pain incident to the injury, and the apprehension and anxiety thereby induced." Wood's Mayne, Dam. 74, note. On same subject Mr. Cooley says: "But in this country, as well as in England, the ground of recovery must be something besides an injury to the feelings and affections, or the loss of the pleasure and comfort of the society of the person killed. There must be a loss to the claimant that is capable of being measured by a pecuniary standard." Cooley, Torts, 271. These are the strongest statements of the rule contended for by the defendant which we have seen, and to them we give our full approval when applied to the class of cases with respect to which they are made. But they are applicable peculiarly, not to say exclusively, to actions for injury to the person where physical injury is the sole ground of the action, and without which the action will not lie at all. This, however, is an action, on the facts of the case, which is permissible under our Code, and may include all matters embraced in an action ex delicto, and also those proper to be considered in an action ex contractu. The plaintiff, having a clear right of action for some damage, as we have already seen, may maintain her action, and recover all the damage she may show herself to have sustained by reason of the wrongful act of the defendant; and, in ascertaining the amount thereof, all proven elements of damage, admissible in either form of action, are for the consideration of the jury. In an action for tort the injured party may recover such damages as result proximately and naturally from the wrongful act of the defendant, and also exemplary damages where the act was done with malice, or under circumstances of aggravation; and, in an action, for breach of contract, the measure of the damages recoverable is, generally, the loss which the contracting parties, with all the facts before them, would have contemplated as flowing directly from its breach. 2 Thomp. Neg. 849; Gray, Tel. 146. The latter author, on the next page, says: "Neither in an action of tort nor in one of contract can a party recover damages for mental anguish alone. He can recover such damages, in consonance with the foregoing rules, at least, only where he is entitled to recover some damages on another ground." There is a large class of actions for tort in which substantial recoveries are authorized and sustained for injury to the feelings of the person suing where the other damage is nominal merely. As instances of such actions, we mention the case of a husband suing for an injury to his wife, or for seducing or enticing her away from him, and that of a parent suing for the seduction of the daughter. In all these cases, the main element of damage, the real injury sustained, is the wound to the feelings; the loss of service upon which the actions are technically based being but a legal fiction, and more imaginary than real. Love v. Mosoner, 6 Baxt. 27; Parker v. Meek, 3 Sneed, 30; Maguinay v. Saudek, 5 Sneed, 147; Cooley, Torts, 224, 226, 231; 3 Suth. Dam. 744. With respect to actions for breach of contract, Mr. Sutherland asks the question, "May damages for breach of contract include other than pecuniary elements?" and then he proceeds to say: "In actions upon contract, the losses sustained do not, by reason of the nature of the transactions which they involve, embrace, ordinarily, any other than pecuniary elements. There is, however, no reason why other natural and direct injuries might not justify and require compensation. Contracts are not often made for a purpose, the defeating or impairing of which can, in a legal sense, inflict a direct and natural injury to the feelings of the injured party. A breach of promise of marriage is an instance of such a contract, and such considerations enter into the estimate of the damages. The action for such a cause is often referred to as an exceptional action. In a certain sense it is so; but in the particular under consideration it is only peculiar. It is an action upon contract, and the damages allowed are such as, considering the nature and benefits of the thing promised, will be adequate compensation." 1 Suth. Dam. 156, 157. To further illustrate and answer his question, the same author says: "Where a contract is made to secure exemption from a particular inconvenience or annoyance, or to confer a particular enjoyment, the breach, so far as it disappoints in respect to that purpose, may give a right to damages appropriate to the objects of the contract." Id. 157, 158.

These are but illustrations and application of the general rule which we have already stated for the estimation of damages in actions for breach of contract. They serve the purpose of...