149 Wis. 106 | Wis. | 1912
In this action for negligent failure to deliver a telegraph message in time to enable the plaintiff to attend the funeral of his father the plaintiff recovered damages under ch. 165, Laws of 1907 (sec. 1778, Stats.), which provides that any person, association, or corporation operating or owning any telegraph line doing business in the state of Wisconsin shall be liable for damages for mental anguish resulting directly and proximately from or occasioned by the failure or negligence of their operators, servants, or employees in receiving, copying, transmitting, or delivering dispatches or messages, not to exceed in amount the sum of $500. The verdict was for $350.
1. The defendant contends that there was no sufficient evidence of mental anguish to justify a recovery in that amount. The plaintiff is a laborer and was engaged in working in the lumber woods, aud on this point merely testified: “I felt awful sorry because I could not get over there.” But it also appeared that he went to work in the woods about two weeks before Christmas, that he went home Christmas time and again thereafter and before the death of his father, to see the latter, who was sick. The point is made that there should
A number of like cases are collected in respondent’s brief affirming upon similar evidence verdicts for damages as follows: Western Union T. Co. v. Adams, 75 Tex. 531, 12 S. W. 857, 6 L. R. A. 844, $2,000; Western Union T. Co. v. Gillis, 97 Ark. 226, 133 S. W. 833, $300; Western Union T. Co. v. Webb (Ark.) 135 S. W. 366, $625; Western Union T. Co. v. Dodson (Miss.) 54 South. 844, $1,000; Maley v. Western Union T. Co. 151 Iowa, 228, 130 N. W. 1086, $300; Western Union T. Co. v. Gilstrap, 77 Kan. 191, 94 Pac. 122, $750; Western Union T. Co. v. Bell, 48 Tex. Civ. App. 151, 106 S. W. 1147, $400; Western Union T. Co. v. Caldwell, 126 Ky. 42, 102 S. W. 840, $1,000; Potter v. Western Union T. Co. 138 Iowa, 406, 116 N. W. 130, $1,000.
It is next contended that in oral cross-examination for the purpose of discovery, had prior to the trial, the plaintiff testified that he would rather give $100 than miss going to his father’s funeral and that he would not take $100 and miss his father’s funeral; and the case of Berger v. Abel & B. Co. 141 Wis. 321, 124 N. W. 410, is cited to uphold the argument that in consequence of this testimony the plaintiff’s damages should have been limited to $100. It will be observed that
2. It is next contended tbat tbe statute authorizing a recovery for mental anguish against telegraph companies is invalid in tbat it deprives tbe defendant of property without due process of law and denies to it tbe equal protection of tbe laws, contrary to tbe XIVth amendment to the federal constitution and contrary to tbe equivalent provisions in tbe constitution of tbis state. A recovery for mental anguish, more commonly referred to as mental suffering, is no novelty in tbe law. It has been approved in actions for breach of promise of marriage attended with certain aggravating circumstances, Giese v. Schultz, 65 Wis. 487, 27 N. W. 353; in actions for negligence, Craker v. C. & N. W. R. Co. 36 Wis. 657; Reinke v. Bentley, 90 Wis. 457, 63 N. W. 1055; Fenelon v. Butts, 53 Wis. 344, 10 N. W. 501; in actions of assault and battery, Barnes v. Martin, 15 Wis. 240; Wilson v. Young, 31 Wis. 574; in actions for false imprisonment, Sorenson v. Dundas, 50 Wis. 335, 7 N. W. 259; in actions for libel and slander, Wilson v. Noonan, 35 Wis. 321; Buckstaff v. Hicks, 94 Wis. 34, 68 N. W. 403; in actions for a wrongful mutilation of a dead body of a relative, Koerber v. Patek, 123 Wis. 453, 102 N. W. 40, 68 L. R. A. 956; in a statutory action by a wife against a saloon-keeper for causing tbe intoxication' of her bus-band, Peterson v. Knoble, 35 Wis. 80.
Tbe effect of tbe statute in question, therefore, is to extend tbis measure of damages to tbe negligent acts of telegraph companies mentioned in tbe statute. Tbe statute in question ■does not attempt to classify persons except with reference to
3. If we consider the question upon authority the result i& the same. A statute imposing upon telegraph companies a liability for mental anguish or suffering in case of their negligent failure in the transmission or delivery of messages is valid. Ivy v. Western Union T. Co. 165 Fed. 371, and cases cited. To the same effect and to the point that there is a substantial ground for classification between telegraph and telephone companies, see Simmons v. Western Union T. Co. 63 S. C. 425, 41 S. E. 521. A classification for the imposition of special duties or special liabilities arising out of the peculiar business in which persons in that class are engaged is a
By the Oourt. — Judgment affirmed.