Lead Opinion
Defendant interposed a general demurrer to the complaint in this action, and appealed from an order overruling the same.
The complaint alleges, in substance, that plaintiff’s child, aged three and one-half years, died at Cass Lake, and plaintiff -desired that the body should be buried at Ogahmah. The body was accordingly prepared for burial, and delivered to defendant for shipment to that place. The shipment required a transfer of the casket containing the body at Erskine, where the defendant’s road connects with the Soo Line, over which the plaintiff and the corpse were to reach Ogahmah. The complaint further alleges that it was the duty of defendant to put the corpse off its train at said Erskine, to the end that it might be transferred to the Soo train, but that, instead of doing so, its servants and agents wrongfully and unlawfully retained possession thereof, and “negligently, wrongfully, and unlawfully, and with utter disregard to the rights and feelings of this plaintiff,” carried the corpse beyond that station, and to the city of Crookstón, thus delaying the funeral arrangements for twenty four-hours; that, by reason of this delay, the corpse became badly “decayed, mutilated and damaged.” As to the nature and character of the injury and damage to plaintiff, it alleges :
“That said funeral was to take place at White Earth on the 21st day of July, 1906, at three o’clock p. m., as stated, and at said time and place the plaintiff had her priest and mourners in attendance, but, by reason of the premises, said funeral and burial could not take place at said time, causing this plaintiff great annoyance and damage. That, by reason of the said negligent, wrongful, and unlawful acts of said defendant, this plaintiff has been greatly damaged, and has been greatly outraged in'her feelings, and has suffered great distress of mind and great mental pain and anguish, and has become sick
The complaint charges no wilful or intentional misconduct on defendant’s part, or on the part of its agents, no claim is made for actual damages and the allegations thereof, taken as a whole, show only a failure to transport the corpse of plaintiff’s child to Erskine, leaving it there for reshipment over the other line to the place of destination, in accordance with its contract. The principal question for consideration, therefore, is whether on the facts stated a recovery may be had for the mental suffering endured by plaintiff in consequence of defendant’s neglect.
The question whether mental anguish is a proper element of damage, either in actions in tort or for a breach of contract, has been presented to the courts in numerous cases, and there is much conflict of opinion upon the subject. According to the weight of authority, such damages may be recovered in all actions in tort where the plaintiff has suffered physical injury at the hands of the defendant, whether from malice or mere negligence (6 Current Law, 631, 8 Am. & Eng. Enc. [2d Ed.] 658); also in that class of torts where the plaintiff is subjected to some indignity, as in libel, slander, malicious prosecution, or seduction (8 Am. & Eng. Enc. [2d Ed.] 668; 13 Cyc. 44); and, again, in those wilful wrongs where some legal right has been invaded, though no physical injury is inflicted or character or reputation assailed (Lesch v. Great Northern Ry. Co.,
But such damages are not recoverable in all actions in tort. Broadly stated, their allowance is limited to actions where the plaintiff has received some injury to his person, or some legal right has been invaded of a nature naturally to cause grief and distress of mind. None of the cases, as we read them, go beyond these limits. They are not recoverable in actions for death by the wrongful act of another. Hutchins v. St. Paul, M. & M. Ry. Co.,
“According to the appellant’s theory, the mother and son are supposed to live on together to an indefinite age; the one craving sympathy and support, the other rendering reverence, obedience, and protection. Such pictures of filial piety are inestimable moral examples, beautiful to contemplate; but the law has no standard by which to measure their loss.”
Loss of support or loss of services is the gist of actions last referred to and compensatory damages only are recoverable, and it is immaterial whether the act complained of was wilful and malicious, or merely the result of negligence. There may be other exceptions to the general rule mentioned, as applied to actions ex delicto, but we are not concerned with them at this time.
It is also a rule of general application that mental anguish is not a proper element of damage in actions for breach of contract, though there is a class of wrongs arising out of contractual relations in which this element is permitted to enter. Illustrations of this are found in wilful and unlawful injuries to passengers upon railroad trains. There is in such cases a contract by the railroad company to carry safely the passenger to his destination, and an implied legal obligation to protect him within certain limits while the relation of passenger and carrier exists, and the courts declare that wilful or malicious violation of that duty constitutes an independent tort, for which recovery may be had for the indignity to which the passenger is subjected. Mykleby v. Chicago, St. P. M. & O. Ry. Co.,
An exception is also made of actions for breach of promise to marry. But such actions in all essential respects partake of the nature of torts, and are so treated by the courts. Johnson v. Travis,
The rule that damages of this nature may be recovered in an action for a breach of contract properly to send and deliver a telegram has become the settled law in a number of the states, following the lead of Texas. But a majority of the courts do not concur in that doctrine.
Summarizing, it may be said that mental anguish is a proper element of damages in all actions sounding in tort, where the plaintiff has received some physical injury, or his legal rights have been so wilfully invaded as naturally to cause mental distress. It is an element to be considered in actions for a breach of contract in exceptional cases only; the principal exception being the telegram cases already referred to. And we pass to a consideration of the question whether this case comes within any of the exceptions.
In respect to the wrongful interference with the rights of preservation and burial of the dead, the courts are again somewhat at variance. Though the common law recognizes no property in the bodies of deceased persons (Weld v. Walker,
“But this whole subject is only obscured and confused by discussing the question whether a corpse is property in the ordinary commercial sense, or whether it has any value as an article of traffic. The important fact is that the custodian of it has a legal right to its possession for the purposes of preservation and burial, and that any interference with that right by mutilating or otherwise disturbing the body is an actionable wrong.”
That has become one of the leading cases on the subject in this country, and has been cited with approval and followed and applied in other states. Burney v. Children’s Hospital,
The rule laid down in the Larson case expresses the modern view of the question, and extends a remedy where otherwise none would exist. There being no property in dead bodies, and the wrong complained of being only the invasion of an intangible legal right, no actual damages for the wrongful mutilation of the body can be recovered, and the courts award solatium for the bereavement of the next of kin as the only appropriate relief. Without the element of mental distress, the action would be impotent of results and of no significance or value as a remedy for the tortious violation of the legal right of possession and preservation. 7 Current Law, 954. But that rule can on principle have no application to actions for breach of contract. A breach of contract involves only such consequences as directly result therefrom and were within the contemplation of
While the rule of compensation to the injured party controls the measure of damages both in actions ex contractu and ex delicto, the elements proper to be considered are in some respects widely different in the two classes of cases. In actions sounding in tort, exemplary or punitive damages are as a general rule awarded, in the discretion of the jury. McCarthy v. Niskern,
The extreme to which this rule leads is illustrated in two North Carolina cases. A father sent a telegram to a friend at a distant point stating that his daughter, sixteen years of age, was on her way to visit at his home, and requesting the friend to meet her at the train, which arrived about twelve o’clock at night. Through the negligence of the company’s agent, the message was not delivered, and no one met the daughter upon her arrival at the station. The conductor of the train placed her in charge of an employee of the railroad company, who procured a carriage, and she was taken to the friend’s house, safe and sound, except for her mental anguish and worry. She brought an action for damages against the telegraph company, alleging as ground of recovery her mental distress. The father also sued for mental anguish which he suffered when told the next day of the failure to deliver the telegram. The court sustained the right of action in each case. Green v. Telegraph Co.,
Efforts have been made to induce the courts of some jurisdictions to apply that doctrine in various forms of action for breach of contract. In Eller v. Carolina,
But, without further citation of authorities or discussion of the subject from the standpoint of decisions of other courts, we. turn to our own decisions, and find that the question has been definitely settled by this court in Francis v. Western Union Tel. Co.,
The logic of that decision applies to the case at bar. The complaint before us charges, at most, a negligent failure to perform the contract, for the breach of which damages for mental anguish are demanded, and the case is not brought within those wherein such damages are awarded for the malicious and wanton breach, to which we have adverted. 13 Cyc. 44—45. Of this class Lindh v. Great Northern Ry. Co.,
It is urged that damages of this character in actions upon contract, as well as in tort, find support in the declaration of the fundamental law that there shall be a certain remedy for all wrongs, and that, if they be denied in breach of contract actions, the guaranteed remedy is denied. This is plausible, but not persuasive. The maxim, “ubi jus ibi remedium,” has, like other principles of the law, its limitations. The guaranty of a remedy for all wrongs has more particular reference to wrongs of a substantial nature, where property or character is affected, rather than to those founded wholly in sentiment. It protects property and property rights, persons, domestic relations, character, and reputation, but not necessarily grief and mental distress occasioned by some unintentional act of wrongdoing. ! As remarked by the supreme court of Indiana in Western Union v. Ferguson,
' For these reasons, we conclude that plaintiff is not entitled to recover for her mental anguish. Her complaint, however, charges a breach of contract, and she would be entitled at least to nominal damages, and the court below properly overruled the demurrer.
Order affirmed.
Dissenting Opinion
(dissenting).
I am unable to agree with the real major premise of the majority opinion, which concerns the distinction between actions on the contract and in tort. According to that opinion, “the difference between actions in tort and those for breach of contract is pointed out with clearness” in Francis v. Western Union Tel. Co.,
In point of actual number, nine-tenths of the actions ex delicto heard by this court, and by most courts, involve causes of action
It would seem a work of supererogation to cite in support of these views more than a few of the vast multitude of authorities sustaining them. The familiar principle is laid down in 1 Chitty, PL 135 — which has been approved times without number — that, “if a common-law duty result from the facts, the party may be sued in tort for any negligence or misfeasance in the execution of the contract.” In the leading case of Boorman v. Brown, 3 Q. B. 511, Tindal, C. J., said:
“That there is a large class of cases in which the foundation of the action springs out of privity of contract between the parties, but in which, nevertheless, the remedy for the breach or nonperformance is indifferently either assumpsit or case upon tort, is not disjputed. Such are actions against attorneys, surgeons, and other professional men. * * * Actions against common carriers, against shipowners ■on bills of lading, against bailees of different descriptions, and numerous other instances occur in which the action brought in tort or contract, at the election ,of the plaintiff * * * The principle in all these cases would seem t'o be that the contract creates a duty, and the neglect to perform that duty, or the nonfeasance, is a ground of action upon a tort.”
2. Nor am I able to agree with the minor premise of the majority opinion that “plaintiff’s complaint charges a breach of contract only,” and that, therefore, the rule of damage applicable to cases of tort may not be invoked. I think that complaint charges a violation of a duty imposed by common law upon a relation which was- entered into by contract and constitutes a cause of action in form ex delicto. So far as the allegations of the particular complaint are concerned, there can be, and, as I understand, there is, no doubt that it contains all necessary allegations to set forth a cause of action ex delicto, if such a thing may be. The present question is not the form of the complaint, but whether plaintiff has a right to sue ex delicto on the facts therein stated.
It is elementary that,' for breach of any duty imposed' by law, the person making the contract with the carrier may sue ex contractu or ex delicto for the violation of the duty. From the great number of cases on the subject, reference is made to Bank of Orange v. Brown, 3 Wend. (N. Y.) 158; Baltimore v. Kemp,
One essential difference resulting from the exercise of the option to sue ex delicto is that a larger measure of damages is applied to such actions than to actions ex contractu. See Murdock v. Boston, 133 Mass, 15,
The general theory as to the form of action involved is well stated by Handy, J., in Heirn v. McCaughan,
“The character of the action must be determined by the nature of the grievance, rather than by the form of the declaration; but in this case they both indicate that the action is founded on the violation of a general duty, and not on a breach of a special contract. And, whenever the action, in cases of this kind, is against a common carrier, the courts are inclined to consider .it as founded in tort, unless a special contract be very clearly shown by the declaration. Collyer, Part. §§ 735, 736, 738; Ansell v. Waterhouse, 6 M. & S. 385; Pozzi v. Shipton, 8 A. & E. 963. It is manifest, therefore, that this action must be regarded as in the nature of an action on the case for the violation of the duty of the company arising from their engagements to the public: In such cases the carriers are bound by the rules of the common law to perform the work tendered them, and no consideration othér than the general legal obligation resting upon them from the nature of their business need be shown by a party who has been injured by their acts of omission or commission, whether negligent, fraudulent, or deceitful. Story on Bail. §§ 508, 591; Philadelphia and Reading Railroad Company v. Derby, 14 How. U. S. R. 486. Their business as common carriers charges them with duties to the public, which, when violated, entitle the parties aggrieved to an action for the tort which is wholly distinct from a matter of individual contract.”
This subject and the measure of damages in tort and contract, respectively, is considered with especial clearness in Brown v. Chicago,
“We see no reason for distinguishing this case from the class of cases which hold a railway company liable in tort for an injury done-to a ■ passenger while traveling on a train caused by collision, the breaking down of a bridge, or any defect in the road or cars. All these matters are a breach d'f the contract to carry the passenger safely,, yet the carrier is held liable in an action of tort for any injury sustained, based upon the allegation that it was incurred through the carelessness and negligence of the company. All the cases hold that thepersoii. injured * * * may proceed either upon contract, alleging the careless or negligent acts of the defendant as a breach of the contract, or he may proceed' in tort, making the carelessness and negligence of the company the ground of his right of recovery; and, if he proceed for the tort, it becomes necessary on the part of the plaintiff to show that he stands in the relation of a passenger of the carrier, in order to show his right to recover damages for the negligence of the carrier in not discharging his duty in carrying him safely. Where the relation of passenger and carrier exists, the law fixes the duty of the carrier towards the. passenger, and any violation of that duty is a wrong; and, if injury occurs to the passenger from such wrong, then the carrier is responsible, and must make good the damage resulting therefrom. Wood v. Railway Co.,
That this court had adopted the rule in Hadley v. Baxendale, supra, in contract cases (for example, see Paine v. Sherwood,
3. I am unable to agree with the conclusion of the majority opinion that damages for mental anguish cannot be recovered in the present action. The gist of the previous discussion is not the academical one as to the mere form of action, but the practical one as to the measure of damages. Of course, the mere fact that the present action sounds in tort does not necessarily entitle plaintiff to recover damages for mental anguish. • In some actions ex delicto such damages are awarded; in others they are denied. Their allowance or denial depends upon considerations peculiar to the particular action then under consideration, and not upon any general principle applying indifferently to all or most torts, except the obviously proper general disinclination to allow their assessment. The status of a dead body, it is familiar, is anomalous. It is neither a living passenger nor freight. None the less it is within the protection of the law. The
All pertinent analogies of the law unite in not requiring that the carrier should have done ihtentional wrong. Authorities as to exemplary damages seem to me out of place. No exemplary damages are here sought. Sentimental damages awarded for violation of a custodian’s right in the dead body are primarily not vindictive, but compensatory. Take two cases: Assume that in one case a dead body is injured by negligence only; there the award of compensatory damages would be the natural injury to the feelings. Assume that in another case the dead body has not only been negligently exposed, but has been the subject of indignity and outrage, as by the intentional deposit of filth upon it; there an enlarged measure of recovery in the nature of exemplary damages might be permitted in strict accordance with usual principles. Wilfulness is not a necessary part of the ordinary action on the case to recover,damages for breach of duty by a common carrier. No reason suggests itself for making this class of cases an exception. Why should negligence be sufficient basis for an action in tort as to ordinary passengers and as to freight, and not as to a corpse? If a wreck had been caused by admitted negligence, for example, in misplacing a switch, and thereby living passengers, a corpse, and cattle were mutilated, why should not substantial damages be recoverable in each case? If in such wreck perishable fruit, or cattle killed by the accident, or a corpse, should by virtue of negligence in subsequent unreasonable delay become decomposed, why should not compensation be recoverable in each case? It shock's reason and the sense of propriety alike to hold that the dead body should not have the same protection as perishable fruit or dead cattle. “It would be discreditable to any system of law[s] not to provide some remedy in such a case.” Mr. Justice Elliott in 16 Cent. Law J.
The discussion of the Texas doctrine as to sentimental damages is irrelevant, inasmuch as the only reason for allowing sentimental damages here is the fact that they are the only .adequate damages appropriate. To permit their recovery in this case has no bearing on' the ordinary cases in which other compensatory damages may be allowed. The converse of this proposition is equally true. The justice and cogency of the familiar and current objections to the award of such damages is as clear as the propriety of refusing in any wise to relax the rulés which forbid their allowance. But to overrule the demurrer in this case involves neither an extension of the present law nor any modification of the principles set forth in the group of cases, of which Francis v. Western Union Tel. Co.,
The more nearly specific authorities appear to me to accord with this view. How complete an innovation is the requirement of wilfulness as an essential to the right to recover damages under such circumstances will appear from an examination of the authorities stated and discussed at length in Louisville v. Wilson,
Under the circumstances here presented, it is unnecessary to consider whether some of the damages alleged in the complaint were or were not remote.