Western Union Tel. Co. v. Ferguson

• Decision Date: 28 May 1901
• Citation: 157 Ind. 64,60 N.E. 674
• Parties: WESTERN UNION TEL. CO. v. FERGUSON.
• Court: Indiana Supreme Court

157 Ind. 64

60 N.E. 674

WESTERN UNION TEL. CO.

v.FERGUSON.¹

Supreme Court of Indiana.

May 28, 1901.

Appeal from circuit court, Monroe county; William H. Martin, Judge.

Action by Howard Ferguson against the Western Union Telegraph Company. From an order overruling a demurrer to the complaint, defendant appeals. Appeal transferred by the appellate court to the supreme court, under Burns' Rev. St. 1894, § 1362. Reversed.

Jordan, J., dissenting.

Chambers, Pickens & Moores and Lowden & Lowden, for appellant. Henley & Wilson, for appellee.

BAKER, J.

This appeal has been transferred here by the appellate court, under section 1362, Burns' Rev. St. 1894 (section 6586, Horner's Rev. St. 1897), with the recommendation that the case of Reese v. Telegraph Co., 123 Ind. 294, 24 N. E. 163, 7 L. R. A. 583, be overruled. Telegraph Co. v. Ferguson (Ind. App.) 59 N. E. 416. Appellee brought this action to recover damages for appellant's negligent failure to deliver a telegram. The message read: “To Howard Ferguson, Bushrod, Ind.: Grandma is dead. Will be buried Thursday, two o'clock. Come. Fred Ferguson.” By the failure to deliver, appellee received neither pecuniary nor bodily injury, but suffered mental anguish consequent upon his being deprived of the opportunity of attending his grandmother's funeral. The assignment that the court erred in overruling the demurrer to the complaint and in denying appellant a new trial presents the question whether the negligent causing of mental anguish alone is an actionable wrong. An affirmative answer was given in the Reese Case, decided in 1890, and the question has not been raised in this court since then. The Reese Case is hereby overruled, for the following reasons:

1. Though courts should and do extend the application of the rules of the common law to the new conditions of advancing civilization, they may not rightfully create a new principle unknown to the common law, nor abrogate a known one. If new conditions cannot properly be met by the application of existing laws, the supplying of needful new laws is the province of the legislative, not the judicial, department. The mental-anguish law, so called, was first announced in So Relle v. Telegraph Co., 55 Tex. 308, 40 Am. Rep. 805, decided in 1881. Telegraphy was then a comparatively new element in society, but mental anguish antedated the beginnings of the common law. In determining the limits within which mental anguish was cognizable in the courts, the common law permitted that state of mind to be considered as an element in admeasuring damages in but two classes of cases, broadly speaking. In one, the negligent act was the proximate cause of a physical hurt, and the mental anguish for which compensation was allowed was the proximate result of the physical hurt, not of the negligent act. For the agonies of mind the plaintiff suffered while the train bore down upon him with his foot caught in the frog, not one cent; but damages were allowable only for the mental anguish resulting from the fact that he must go through life a cripple. The using of cases of this class in support of the mental-anguish doctrine is not an extension of the application of the rules of the common law to new conditions, but is a distortion of the rules themselves, resulting from the failure to distinguish between the mental anguish that is attributable directly to the negligent act and the mental anguish that is the direct result of the physical hurt produced by the negligent act. In the other class of cases, of which malicious prosecution, seduction, and libel are illustrative, the wrongful act was affirmative; was one of commission, not merely of omission; was the product of intent or malice, express or implied. The wrongful act was the proximate cause of the legal hurt (a hurt that the law recognizes), for which damages were recoverable irrespective of mental anguish; and the damages allowable for mental anguish were not merely compensation for the mental condition produced by the legal hurt, but were also punishment for the willful wrong. This class of cases is further removed from the mental-anguish doctrine than the first. Not only is there the distinction that exists between the first class of cases and the mental-anguish doctrine, namely, that in the one the mental anguish hangs upon the hurt produced by the negligent act, while in the other the mental anguish hangs directly upon the negligent act, but there is also the distinction that willfulness or malice is found in the second class of cases, while the mental-anguish doctrine is based on pure negligence. One who unintentionally fails to perform a duty should pay compensatory damages only. One who maliciously infringes another's legal rights should pay both compensatory and punitive damages. To apply the rules relating to punitive damages for willful wrongs to a case of unintentional default is certainly not a mere extension of the application of the rules of common law to new conditions. These classes of cases in which mental anguish is cognizable as an incident to causes of action complete without it at least negatively indicate the common-law rule that mental anguish, as the proximate and sole result of a negligent act, does not constitute a cause of action. And the rule follows affirmatively from the principle that damages may not be remote nor conjectural nor speculative. Hadley v. Baxendale, 9 Exch. 341, 5 Eng. Ruling Cas. 502, 525. The supreme court of Florida, in International Co. v. Saunders, 32 Fla. 434, 14 South. 148, 21 L. R. A. 810, in reviewing the Texas decision in So Relle v. Telegraph Co., said: “The court in that case asserts that it is the settled rule of law in that state that injury to the feelings caused by the willful neglect or fault of another constitutes such actual damages, for which a recovery may be had, and cites as authority for such assertion the cases of Hays v. Railroad Co., 46 Tex. 279, and Railroad Co. v. Randall, 50 Tex. 261. In neither of these cases is the doctrine either settled or asserted that injury to the feelings or mental suffering alone can be made the subject of a suit for compensative damages. The Case of Hays, supra, was against a railroad company for damages for wrongfully and forcibly ejecting the plaintiff from its passenger train in the presence of his wife and family, in which it was claimed that the ejectment was done in a rude and insulting manner and by personal violence, resulting in injury to plaintiff's clothing and bruises to his person. Exemplary or punitive damages were claimed, and the jury were instructed to estimate the actual damages by the ‘injuries sustained by the plaintiff in his person, his estate, and his feelings,’ and it was held that by this charge the subject of the amount of actual damages was fairly placed before the jury. But nowhere is it asserted that mental sufferingalone can be made an independent basis for admeasuring damages. The case, like many others founded on tort that might be cited, simply holds that the mental suffering or injured feelings may be taken into consideration as an element of damage when coupled with or accompanied by substantive injury to the person or estate, upon the ground, as stated in the authorities, that in such cases the mental suffering growing out of and produced by the physical injury is so interwoven with the latter that it is impossible to consider the one without contemplating the other. * * * The same may be said of the Case of Randall, supra. In that case the plaintiff, a brakeman on the defendant's train, sued the company for damages for its negligence in having an open ditch across its tracks, into which he fell while performing the duty of coupling two of defendant's cars, and whereby his arm was run over and crushed by the cars, necessitating its amputation. In that case, too, the doctrine is sanctioned that an element of the verdict may be compensation for the mental and physical suffering caused by the injury. But nowhere is the doctrine sanctioned that mental suffering alone can sustain an action. For the support of its ruling in the So Relle Case the Texas court next quotes at length the dictum of the authors of Shearman & Redfield on negligence, which dictum, as ordinarily incorporated in their work, was entirely without the support of any adjudged case. The seduction case of Phillips v. Hoyle, 4 Gray, 568, is next invoked to the support of the Texas court, where injury to the feelings of the parent in consequence of the daughter's seduction was held to be an element of damages. The fact seems to have been overlooked, in citing this case to its support, that in cases of seduction, and other torts independent of contract, injured feelings are given consideration, not so much as a criterion for the admeasurement of compensation, but as a standard by which to estimate the enormity of the outrage willfully committed, and as a guide whether the damage to be allowed as punishment shall be higher or lower. The next and last authority cited to the support of the So Relle Case is the case of Roberts v. Graham, 6 Wall. 578, 18 L. Ed. 791, but we fail to find in it any reference whatever to the subject of damages for injured feelings or mental suffering; the whole case being confined to a discussion of the question of the sufficiency of the allegations of a declaration or complaint for general damages as a predicate for the introduction of proof of special damage. The doctrine of the So Relle Case has for its support, then, in reality, only the unsupported dictum of Shearman & Redfield in their work on Negligence. In the case of Railway Co. v. Levy, 59 Tex. 563, 46 Am. Rep. 278, decided in 1883, the So Relle Case was expressly overruled in so far as it held that an action for mental suffering alone could be maintained. In Stuart v. Telegraph Co., 66 Tex. 580, 18 S. W. 351, 59 Am. Rep. 623, decided in 1886, the Levy Case, supra, is practically overruled,...