Western Union Telegraph Company v. Ferguson

• Decision Date: 12 February 1901
• Docket Number: 3,290
• Citation: 59 N.E. 416,26 Ind.App. 213
• Parties: WESTERN UNION TELEGRAPH COMPANY v. FERGUSON
• Court: Indiana Appellate Court

59 N.E. 416

26 Ind.App. 213

WESTERN UNION TELEGRAPH COMPANY v. FERGUSON

No. 3,290

Court of Appeals of Indiana

February 12, 1901

From the Monroe Circuit Court.

Transferred to the Supreme Court.

S. N Chambers, S. O. Pickens, C. W. Moores, T. J. Louden and J. H Louden, for appellant.

J. E Henley and J. B. Wilson, for appellee.

OPINION

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, Indiana, on the 13th day of July, 1898, and addressed to appellee at Bushrod, Indiana. 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 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. v. Cline, 8 Ind.App. 364, 35 N.E. 564; Western Union Tel. Co. v. Stratemeier, 11 Ind.App. 601, 39 N.E. 527; Western Union Tel. Co. v. Bryant, 17 Ind.App. 70, 46 N.E. 358; Western Union Tel. Co. v. Briscoe, 18 Ind.App. 22, 47 N.E. 473; Western Union Tel. Co. v. Henley, 23 Ind.App. 14, 54 N.E. 775.

In deciding the cases of this character presented to this court, we have followed the rule established by the Supreme Court of this State in Reese v. Western Union Tel. Co., supra, and it remains for the Supreme Court to say now 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 Western Union Tel. Co. v. Hamilton, 50 Ind. 181, in construing a penal statute (§ 5512 Burns 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 despatch, and yet, if an action should be brought against the company for the recovery of 'special damages' given by the second section, how could they be estimated, and what would be their measure? What damages shall be awarded to a relative or a friend for being deprived of the melancholy privilege of attending the funeral of his relative or friend? Suppose the despatch 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 5 o'clock this afternoon. Funeral to-morrow at 5 o'clock."

In support of our contention that the doctrine established by the Reese case in Indiana is not sustained by the weight of authority, we cite twenty-six of the courts of last resort in this country and the highest courts of England.

In Peay v. Western Union Tel. 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 wilful, and calculated to injure the feelings, but only in aggravation of damages, on account of the wanton and wilful 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 contract. In a majority of instances the breach of a 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 International, etc., Tel. Co. v. Saunders, 32 Fla. 434, 14 So. 148, the delayed telegram was as follows: "Charles Saunders, Titusville. Wife dying. Come at once, or send wishes by wire. [Signed] Supt. St. Luke's Hospital." The message was received at Titusville in due time, but was not delivered to Saunders for more than thirty-six 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. Western Union Tel. 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 next 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 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, wilfully committed, and as a guide whether the damages 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, 73 U.S. 578, 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 doctrine of the So Relle case has for its support, then, in reality, only the unsupported dictum of Messrs. Shearman & Redfield, in their work on Negligence. In the case of Gulf, etc., R. Co. v. Levy, 59 Tex. 563, 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. Western Union Tel. Co., 66 Tex. 580, 18 S.W. 351, decided in 1886, the Levy case is practically 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. Western Union Tel. Co. has been adhered to in that state ever since, encumbered, 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. Western Union Tel. 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 Western Union Tel. Co. v. Haltom, 71 Ill.App. 63.

The same question is reviewed in the case of West v. Western Union Tel. Co., 39 Kan. 93, 17 P. 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 and 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. Western Union Tel. 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 for mental anguish alone are not recoverable, and that "Courts have no more right thus to abrogate the common law than they have to repeal the statutory law." Again he says in the same opinion: "The 'Texas doctrine', with more or less modification, has quite recently been adopted by the courts of Alabama, Kentucky, Tennessee, North Carolina, and Indiana. The harvest of 'intolerable litigation' which is being reaped in Texas has not yet matured in those states, but certainly will if the doctrine is adhered to. * * * No lawyer as yet seems to...