Western Union Tel. Co. v. Ferguson

• Decision Date: 12 February 1901
• Citation: 59 N.E. 416,26 Ind.App. 213
• Parties: WESTERN UNION TEL. CO. v. FERGUSON.
• Court: Indiana Appellate Court

26 Ind.App. 213

59 N.E. 416

WESTERN UNION TEL. CO.

v.FERGUSON.¹

Appellate Court of Indiana.

Feb. 12, 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. Transferred to the supreme court.

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

HENLEY, C. J.

This was an action commenced by appellee, Howard Ferguson, against appellant to recover damages on account of the alleged negligent and unlawful failure of appellant to transmit and deliver to appellee a message filed by appellee's brother at Bloomington, Ind., on the 13th day of July, 1898, and addressed to appellee at Bushrod, Ind. The body of the message was in the following words: “To Howard Ferguson, Bushrod, Ind.: Grandma is dead; will be buried Thursday two o'clock. Come. Fred Ferguson.” The message was not delivered. The damages sought to be recovered by appellee are for the mental anguish and distress of mind caused by the failure to deliver the message. It is not contended that appellee received any pecuniary or bodily injury. The question is squarely presented by the demurrer to the complaint as to whether there can be any recovery where the basis of the action is mental anguish alone, unaccompanied by bodily injury. That there may be such recovery in such cases is the law in this state. Reese v. Telegraph Co., 123 Ind. 294, 24 N. E. 163, 7 L. R. A. 583;Telegraph Co. v. Stratemeier, 6 Ind. App. 125, 32 N. E. 871; Same v. Eskridge, 7 Ind. App. 208, 33 N. E. 238; Same v. Newhouse, 6 Ind. App. 422, 33 N. E. 800; Same v. Cline, 8 Ind. App. 364, 35 N. E. 564; Same v. Stratemeier, 11 Ind. App. 601, 39 N. E. 527; Same v. Bryant, 17 Ind. App. 70, 46 N. E. 358; Same v. Briscoe, 18 Ind. App. 22, 47 N. E. 473; Same v. Henley, 23 Ind. App. 14, 54 N. E. 775. In deciding cases of this character presented to this court, we have followed the rule established by the supreme court of this state in Reese v. Telegraph Co., supra, and it remains for the supreme court to now say whether we shall continue to follow the rule there laid down, or to abandon it, and adopt another and different rule, which this court has now concluded is founded in sound reason, and is sustained by the great weight of authority.

Our supreme court in Telegraph Co. v. Hamilton, 50 Ind. 181, in construing a penal statute (section 5512, Burns' Rev. St. 1894) relating to telegraph companies, indicated what the court at that time believed the rule to be. In the opinion Downey, J., says: “The case under consideration is a good illustration of the reason for the enactment of the law imposing a penalty in such cases. There is, in this case, a confessed violation of the contract made by the company to transmit the dispatch; and yet, if an action should be brought against the company for the recovery of ‘special damages' given by the second section (Gav. & H. St. p. 611), how could they be estimated, and what would be their measure? What damages shall be awarded to a relative or friend for being deprived of the melancholy privilege of attending the funeral of his relative or friend? Suppose the dispatch had been an invitation to a marriage, to a family reunion, or with reference to any other matter where special damages could not be shown; what substantial remedy can the party have unless it be the recovery of the penalty? By giving the penalty the law enforces the contract or duty of the company.” The words used in the telegram in the Hamilton Case, above referred to, were: “George died at five o'clock this afternoon; funeral to-morrow at five o'clock.” In support of our contention that the doctrine established by the Reese Case in Indiana is not substantiated by the weight of authority, we cite 26 of the courts of last resort in this country and the highest courts of England.

In Peay v. Telegraph Co., 64 Ark. 538, 43 S. W. 965, 39 L. R. A. 463, the court said: “It is not to be controverted that in cases of torts that produce physical injury, attended with mental suffering, the mental suffering is an element of damages recoverable in an action at law, because they are so intimately connected as to make separation impracticable. So, also, damages may be recovered for torts that are willful and calculated to injure the feelings, but only in aggravation of damages, on account of the wanton and willful character of the wrong done; but no action lies for injury to the feelings merely, or for mental anguish alone. It will be borne in mind that the damages claimed in this case are alleged to have been caused by a breach of a contract. In a majority of instances the breach of a certain contract merely causes disappointment, annoyance, and more or less mental trouble or distress. But it would be an unwarranted stretch of the law, in our opinion, to hold that, for mental anguish caused by violation of a contract merely, damages could be recovered in an action at law. We do not think that damages for mental pain and suffering alone can be measured by any practical or just rule.”

In Telegraph Co. v. Saunders, 32 Fla. 434, 14 South. 148, the delayed telegram was as follows: “Charles Saunders, Titusville: Wife dying; come at once, or send wishes by wire. [Signed] Supt. St. Luke Hospital.” The message was received at Titusville in due time, but was not delivered to Saunders for more than 36 hours after it had been so received. The court holds, in an able and exhaustive opinion, that damages are not recoverable in such a case. In commenting upon the case of So Relle v. Telegraph Co., 55 Tex. 308, which was the first case holding that damages for mental anguish could be recovered in a case like this, the court say: “For the support of its ruling in the So Relle Case the Texas court quotes at length the dictum of the authors of Shearman & Redfield on Negligence, which dictum, as originally 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 the 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 damages to be allowedas 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. We fail to find in it any reference whatever to the subject of damages for injured feelings or mental suffering. * * * The doctrine of the So Relle Case has for its support, then, in reality, only the unsupported dictum of Messrs. Shearman & Redfield in the work on Negligence. In the case of Railroad Co. v. Levy, 59 Tex. 563, 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, the Levy Case is overruled, and the court, without the support of any additional authorities, returns to the doctrine of the So Relle Case. The ruling in Stuart v. Telegraph Co. has been adhered to in that state ever since, incumbered, however, with finely-drawn distinctions that seem to keep an even pace with the rapid increase of litigation that the enunciation of such a doctrine would naturally engender.”

A very instructive and well-considered opinion is found in the case of Chapman v. Telegraph Co., 88 Ga. 763, 15 S. E. 901, 17 L. R. A. 430, where a vast number of authorities are collected, and the court concludes that there is no public policy to be subserved by giving damages for mental suffering, that it is not permitted by the common law, and it is not permitted the courts to usurp the prerogative of the lawmakers. To the same effect see Telegraph Co. v. Halton, 71 Ill. App. 63.

The same question is reviewed in the case of West v. Telegraph Co., 39 Kan. 93, 17 Pac. 807, where the court say: “Where mental suffering is an element of physical pain, or is a necessary consequence of physical pain, or is the natural or proximate result of the physical injury, then damages for mental suffering may be recovered, where the injury has been caused by the negligence of the defendant; but in an action of this kind we do not think that damages for mental anguish or suffering can be allowed.”

In Francis v. Telegraph Co., 58 Minn. 252, 59 N. W. 1078, 25 L. R. A. 406, Mitchell, J., in a vigorous and exhaustive opinion on the question here involved,...