Western Union Telegraph Co. v. Rogers

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtCOOPER, J.
Citation9 So. 823,68 Miss. 748
PartiesWESTERN UNION TELEGRAPH CO. v. W. H. ROGERS
Decision Date25 May 1891

9 So. 823

68 Miss. 748

WESTERN UNION TELEGRAPH CO.
v.
W. H. ROGERS

Supreme Court of Mississippi

May 25, 1891


April, 1891

FROM the circuit court of Lauderdale county, HON. S. H. TERRAL, Judge.

The opinion states the case.

Reversed and remanded.

Fewell & Braham, for appellant.

1. The great weight of authority is in favor of the proposition that mental suffering or disappointment unaccompanied by physical injury will not support an action for damages in a case of negligence only. Canning v. Williamstown, 1 Cush. (Mass.) 451; Lynch v. Knight, 9 H. L. 577; Johnson v. Wells, 6 Nev. 224; Wood's Mayne on Dam. 70 et seq.; Shear & Redf. on Neg. § 757 et seq.; Bigelow's lead. Cas. on Torts, § 619 et seq.; Field on Dam. 39; Wharton on Neg. §§ 339, 438, 756; 1 Sedgwick on Dam. 29, and notes; 2 Greenleaf's Ev. § 267; 2 Kent's Com. 195; Loper v. Tel. Co. (Tex.) 8 S.W. R. 600; Parkhurst v. Mastellar (Iowa), 10 N.W. R. 864; 69 Ind. 199; 70 Ill. 503; 84 Ib. 568; 69 Mo. 658; 17 Allen, 514; 27 Conn. 293; 31 Wis. 574; 38 Ib. 984; 42 Ib. 23; 53 Vt. 190; Wadsworth v. Tel. Co. (Tenn.) 8 S.W. R. 574; Tel. Co. v. Cooper (Tex.), 9 Ib. 598; Tel. Co. v. Brown, 10 Ib. 323; Galveston v. Barbour, 62 Tex. 172; West v. Tel. Co. (Kans.) 7 Am. St. R. 530.

2. The verdict is grossly excessive. The disappointment of appellee is hard to measure, but the verdict is unreasonable and unjust. Verdicts like this should not be allowed to stand where no physical injury or pecuniary loss has been sustained.

W. P. & J. B. Harris, on the same side.

Plaintiff was not entitled to recover for wounded feelings caused by simple negligence, there being no bodily injury and no malice, insult, oppression or fraud. Dorrah v. Railroad Co., 65 Miss. 14, citing Pierce on Railroads, 302; 6 Nev. 224; 71 Me. 227; 53 Vt. 183; 1 Cush. (Mass.) 451; 6 Am. & Eng. R. R. Cas. 345.

There is no satisfactory reason for applying one rule to a telegraph company and another to a railroad. Why is not Dorrah v. Railroad Co. decisive of this case? The principle announced in that case is not new. It announced the settled doctrine in this state, and must apply with equal force to all cases whether defendant be a corporation, an individual, railroad or telegraph company. This court would invade the province of the law-making department if it should undertake to make one rule for railroads and another for telegraph companies, and still another for the individual. The fact that in Texas, Tennessee and Kentucky a rule different from the one which prevails in this state has been applied in suits wherein telegraph companies are parties, has led some to believe that a different or special rule applies in telegraph cases. This is not sound.

It will be found that the text- writers in treating of mental anguish as an element of damages, generally connect it with exemplary or punitive damages. Field on Dam. §§ 26, 72; Sedgwick on Dam. 654; 1 Suth. on Dam. 156, 732, 736; Gray's Tel. Com. § 147; see, also, 84 Ill. 468; 85 Ib. 331; 3 Dak. 315; 27 Kans. 544; 39 Ib. 93; 50 Ind. 185; Chase v. Tel. Co., 44 F. 554; 56 Me. 225; 71 Ib. 227; 53 Vt. 190; 7 Am. & Eng. Enc. L. 449, note 2; 5 Ib. 42.

In Lawson's Rights, Rem. & Prac., vol. 4, § 1970, there is a misleading statement as to this. The author cites Beasley v. Tel. Co., 39 F. 181, in support of it. The Texas cases are conflicting, and it must be conceded that the courts have as yet arrived at no fixed rule. The court in Tennessee was divided. We submit that the better reason is with the dissenting opinion. See Wadsworth v. Tel. Co., 86 Tenn. 695.

The court will see from the authorities that there is a class of cases in Texas, Tennessee and Alabama which, while denying that mental anguish alone is a substantive ground of action, yet come so near the line that the result is the same. They pretend to adhere to the common law rule, yet they destroy its usefulness by a pretext.

Fright, the most terrible of mental disturbances, is not a cause of action. Railway Co. v. Coultas, L. R. App. Cas., vol. 13, p. 222. The enjoyment of equanimity of mind, freedom from disappointments, anger and grief, lie beyond the sphere of practical jurisprudence. This is the principle of the common law. Mere mental suffering can neither be proved nor disproved. It is not amenable to the law of judiial investigation. See 7 Allen (Mass.), 118. The same occurence may give rise to anger in one person and grief in another. No rule of law defines the distress, or prescribes where we are to start and where we are to stopinthis endless chapter of sentimental jurisprudence, which would be added toour system but for the common law. It is opposed to the spirit of law to widen the power to deal with property without measure or rule. On this point see Whittaker's Smith on Neg. 432.

We are speaking of mental suffering, disconnected from those particular legal injuries to which it has been connected by judicial precedents. A moment's reflection serves to show that the reason of the common law rule condemns recovery in a case like this. There is an exception to the general rule in case of breach of marriage promise. 1 Suth. on Dam. 156. In other cases such damages as are claimed here cannot be recovered without proof of wilful wrong. 1 Suth. on Dam. 732 et seq.; 19 Mass. 218; 124 Ib. 580; 20 Ill. 235, 544; 10 Barb. (N. Y.) 621; Wood's Mayne on Dam. 72 et seq.; 62 Ill. 313; 74 Mo. 147; 54 Pa. 427.

Witherspoon & Witherspoon, for appellee.

Telegraph companies undertake to serve the public and are under obligation to perform their contracts without negligence or unwarrantable delay. Alexander v. Tel. Co., 66 Miss. 162. See, also, Derring on Neg. §§ 366, 369; 2 Colo. 144; 36 Ill. 319; 84 Ind. 176; 9 Ill.App. 283; Gray's Tel. Com. § 22, and authorities cited; 73 Am. Dec. 593; 3 Suth. on Dam. 295.

When damages are the necessary effect of the wrong, the law presumes damages to have accrued from the wrongful act. 32 Miss. 19; 16 Am. St. R. 923; 70 Pa. 86; 10 Am. R. 205, 664; 35 N. J. Law, 17; 56 N.Y. 200.

True it is frequently difficult, if not impossible, to determine the amount of damages sustained. In such cases the wrongdoer must suffer from the impossibility of accurately ascertaining the amount. Here the damages were placed at $ 800, a very small sum considering the defendant's breach of duty. It was for the jury, in view of the evidence and the instructions of the court, to fix the amount of damages. 51 Miss. 77; 9 Am. St. R. 770; 13 Ib. 846; Suth. on Dam. 730 et seq.; 4 Wait's Ac. & Def. 715; 42 Pa. 493.

We submit that mental anguish and injury to the feelings are elements of compensatory damages, and that plaintiff had a right to recover for the same. SoRelle v. Tel. Co., 55 Tex. 308; Logan v. Tel. Co., 84 Ill. 468; 3 Suth. on Dam. 298; 13. Am. St. R. 843.

We are aware that in some cases it has been held that a recovery cannot be had for mental suffering. We think, however, that the contrary of this is the sounder doctrine. See Wadsworth v. Tel. Co., 86 Tenn. 695; 6 Am. St. R. 864; 75 Tex. 531; 16 Am. St. R. 920; 4 Lawson's Rights, Rem. & Prac. § 2970, where the authorities on this subject are reviewed and discussed. See, also, 1 Suth. on Dam. 156 et seq.

In the ordinary contract only pecuniaty benefits are contempalted by the contracting parties, and, therefore, the damages resulting from the breach of such contract must be measured by pecuniary standards, but where other than pecuniary benefits are contracted for, other than pecuniary standards will be applied in the ascertainment of the damages flowing from the breach. 6 Am. St. Rep. 9, 869; see Tenn. 529; Gray's Tel. Com. §§ 81, 82; Cooley on Torts, 646; Wharton on Neg. § 767; 3 Suth. on Dam. 298; Shear. & Redf. on Neg. 605; 73 Ga. 285; 77 Va. 173; 46 Am. R. 715 and notes.

Messages of this character are the most important that telegraph companies are called upon to transmit, and for failure of duty they should be held liable as for failure to transmit other messages.

Argued orally by J. B. Harris, for appelant.

OPINION [9 So. 824]

[68 Miss. 752] COOPER, J.

A telegram was sent from Chattanooga, Tenn., to the plaintiff who resides in Meridian, Miss., informing him of the death of his brother, and the time and place at which he would be buried. If this dispatch had been seasonably delivered, the plaintiff could and would have attended the burial. By negligence of the agent of the defendant company at Meridian, it was not delivered until after the last train had left Meridian for Chattanooga, by which the plaintiff could have travelled to attend the funeral services. This suit was brought to recover the damages sustained by the plaintiff by reason of the non-delivery of the message.

The facts are undisputed. They are that the message was sent and its transmission paid for by the sended; that it was, by the negligence of the agent, not delivered; that the plaintiff sustained no pecuniary loss, his damages being merely nominal, unless he is entitled to recovery for the disappoitment of not being informed of death of his brother in time to attend his burial.

[68 Miss. 753] The court below instructed the jury that the plaintiff was entitled to recover as compensation, damages for the mental suffering sustained by him by reason of being deprived of the privilege of attending the funeral of his brother, it being conceded that no such negligence was shown as would warrant the infliction of punitive damages. The jury returned a verdict for $ 800, and from a judgment thereon the defendant appeals.

It thus appears that the single question presented is, whether under the circumstances named damages for mental suffering may be recovered.

It is immaterial, in the determination of the question involved, whether the action be considered as one for the breach of the contract to transmit and deliver the message, or as an action on the case for the tort in...

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58 practice notes
  • Miranda v. Said, No. 11-0552
    • United States
    • United States State Supreme Court of Iowa
    • July 19, 2013
    ...affecting the liberty, character, reputation, personal security, or domestic relations of the injured party.W. Union Tel. Co. v. Rogers, 9 So. 823, 825 (Miss. 1891). Stated in the inverse, some courts viewed awards of emotional distress damages as the exception and not the rule. See Gatzow ......
  • Lyons v. Zale Jewelry Co., No. 42382
    • United States
    • United States State Supreme Court of Mississippi
    • February 18, 1963
    ...actual injury will not support a recovery of damages. 25 C.J.S. Damages § 64, p. 550; Western Union Telegraph Co. v. Rogers (1891), 68 Miss. 748, 9 So. 823, 13 L.R.A. 859; Gulf & S. I. R. Co. v. Beard (1922), 129 Miss. 827, 93 So. 357; Doherty v. Mississippi Power Co. (1937), 178 Miss. 204,......
  • Miranda v. Said, No. 11–0552.
    • United States
    • United States State Supreme Court of Iowa
    • September 11, 2013
    ...affecting the liberty, character, reputation, personal security, or domestic relations of the injured party.W. Union Tel. Co. v. Rogers, 68 Miss. 748, 9 So. 823, 825 (1891). Stated in the inverse, some courts viewed awards of emotional distress damages as the exception and not the rule. See......
  • Western Union Tel. Co. v. Ferguson
    • United States
    • Indiana Supreme Court of Indiana
    • May 28, 1901
    ...7 Am. St. Rep. 530;Francis v. Telegraph Co., 58 Minn. 252, 59 N. W. 1078, 25 L. R. A. 406, 49 Am. St. Rep. 507;Telegraph Co. v. Rogers, 68 Miss. 748, 9 South. 823, 13 L. R. A. 859, 24 Am. St. Rep. 300;Connell v. Telegraph Co., 116 Mo. 34, 22 S. W. 345, 20 L. R. A. 172, 38 Am. St. Rep. 575;N......
  • Request a trial to view additional results
58 cases
  • Miranda v. Said, No. 11-0552
    • United States
    • United States State Supreme Court of Iowa
    • July 19, 2013
    ...affecting the liberty, character, reputation, personal security, or domestic relations of the injured party.W. Union Tel. Co. v. Rogers, 9 So. 823, 825 (Miss. 1891). Stated in the inverse, some courts viewed awards of emotional distress damages as the exception and not the rule. See Gatzow ......
  • Lyons v. Zale Jewelry Co., No. 42382
    • United States
    • United States State Supreme Court of Mississippi
    • February 18, 1963
    ...actual injury will not support a recovery of damages. 25 C.J.S. Damages § 64, p. 550; Western Union Telegraph Co. v. Rogers (1891), 68 Miss. 748, 9 So. 823, 13 L.R.A. 859; Gulf & S. I. R. Co. v. Beard (1922), 129 Miss. 827, 93 So. 357; Doherty v. Mississippi Power Co. (1937), 178 Miss. 204,......
  • Miranda v. Said, No. 11–0552.
    • United States
    • United States State Supreme Court of Iowa
    • September 11, 2013
    ...affecting the liberty, character, reputation, personal security, or domestic relations of the injured party.W. Union Tel. Co. v. Rogers, 68 Miss. 748, 9 So. 823, 825 (1891). Stated in the inverse, some courts viewed awards of emotional distress damages as the exception and not the rule. See......
  • Western Union Tel. Co. v. Ferguson
    • United States
    • Indiana Supreme Court of Indiana
    • May 28, 1901
    ...7 Am. St. Rep. 530;Francis v. Telegraph Co., 58 Minn. 252, 59 N. W. 1078, 25 L. R. A. 406, 49 Am. St. Rep. 507;Telegraph Co. v. Rogers, 68 Miss. 748, 9 South. 823, 13 L. R. A. 859, 24 Am. St. Rep. 300;Connell v. Telegraph Co., 116 Mo. 34, 22 S. W. 345, 20 L. R. A. 172, 38 Am. St. Rep. 575;N......
  • Request a trial to view additional results

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