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 |
OPINION TEXT STARTS HERE
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.
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: 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 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:
In Telegraph Co. v. Saunders, 32 Fla. 434, 14 South. 148, the delayed telegram was as follows: 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:
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, holds that damages...
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Western Union Tel. Co. v. Ferguson
...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......
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Western Union Telegraph Company v. Ferguson
... ... ... OPINION ... Baker, ... This ... appeal has been transferred here by the Appellate Court under ... § 1362 Burns 1894, § 6586 Horner 1897, with the ... recommendation that the case of Reese v. Western ... Union Tel. Co., 123 Ind. 294, 24 N.E. 163, be overruled ... Western Union Tel. Co. v. Ferguson, 26 ... Ind.App. 213, 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 ... ...
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Western Union Telegraph Company v. Ferguson
... ... 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 a recovery in such cases is the law in this ... State. Reese v. Western Union Tel. Co., 123 ... Ind. 294, 7 L. R. A. 583, 24 N.E. 163; Western Union Tel ... Co. v. Stratemeier, 6 Ind.App. 125, 32 N.E ... 871; Western Union Tel. Co. v. Eskridge, 7 ... Ind.App. 208, 33 N.E. 238; Western Union Tel. Co. v ... Newhouse, 6 Ind.App. 422, 33 N.E. 800; Western ... Union Tel. Co ... ...
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Kagy v. Western Union Telegraph Company
... ... cause thereof. They may not be remote, [37 Ind.App. 79] ... conjectural or speculative. See Hadley v ... Western Union Tel. Co. (1888), 115 Ind. 191, 15 N.E ... 845; Berkey & Gay Furniture Co. v ... Hascall (1890), 123 Ind. 502, 507, 8 L. R. A. 65, 24 ... N.E. 336; owe v. Turpie (1897), 147 Ind ... 652, 670, 37 L. R. A. 233, 44 N.E. 25; Western Union Tel ... Co. v. Ferguson (1901), 157 Ind. 64, 60 N.E ... 674; Acme Cycle Co. v. Clarke (1901), 157 ... Ind. 271, 276, 61 N.E. 561; Bierhaus v. Western ... Union Tel. Co ... ...