Summerfield v. Western Union Telegraph Co.
57 N.W. 973
Wis.
1894
Check Treatment

Lead Opinion

Winslow, J.

Thе exact question presented by the instruction of the court to the jury is whether mental anguish alone, resulting from the negligent nondelivery of a telegram, constitutes an independent basis for damages.

At common lаw it was well settled that mere injury to the feelings or affections did not constitute an independent basis for the recovery of damages. Cooley, Torts, 271; Wood’s Mayne, Dam. (1st Am. ed.), § 54, note 1. It is true that damages for mental suffering have been generally allowed by the courts in certain classes of cases. These classes are well stated by Coopee, J., in his learned opinion in the case of Western Union Tel. Co. v. Rogers, 68 Miss. 748, as follows: “ (1) Where, by thе merely negligent act of the defendant, physical injury has been sustained; and in this class of cases they are compensatory, and the reason given for their allowance is that the one cannot be separated from the other. (2) In actions for breach of the contract of marriage. (3) In cases of wilful wrong, especially those affecting the liberty, character, reputation, *9personal security, or domestic relations of the injured party.” To this latter class belong the actions of malicious prosecution, slander and libel, and seduction, and they contain an element of malice. Subjеct to the possible exceptions contained in the second and third of the above classes, it is not believed that there was any case, — certainly no well-considered case, — prior to the year 1881, which held that mental anguish alone constituted a sufficient basis for the recovery of damages. In that year, however, the supreme court of Texas, in So Relle v. W. U. Tel. Co. 55 Tex. 308, decided that mental suffering alone, caused by failure to deliver such a telegram as the one in the present case, was sufficient basis for damages. The principle of this case has been followed Avith some variations by the same court in many сases since that decision, and its reasoning has been substantially adopted by the courts of last resort in the states of Indiana, Kentucky, Tennessee, North Carolina, and Alabama, in cases which are citеd in the briefs of counsel. On the other hand, the doctrine has been vigorously denied by the highest courts in the states of Georgia, Florida, Mississippi, Missouri, Kansas and Dakota, and by practically the unanimous current of authority in the federal courts. All of these cases will be preserved in the report of this case, and the citations need not be repeated here.

The question is substantially a new one in this state, and we are at liberty to adopt that rule which ‍‌‌​‌​​‌​​‌‌​​​‌‌‌‌​​​​​‌‌​‌​​​​​​‌​‌‌​‌​‌‌​​​​‌‌‍best commends itself to reason and justice. It is true that it has been held by this court, in Walsh v. C., M. & St. P. R. Co. 42 Wis. 32, that in an action upon breach of a contract of carriage damages were not recoverable for mere mental distress; but, as we regard this action as being in the nature of a tort action founded upon a neglect of the duty which the telegraph company owed to the рlaintiff to deliver the telegram seasonably, that decision is not controlling in this case.

*10The reasoning in favor of the recovery of such damages is, in brief, that a wrong has been committed by defendant which has rеsulted in injury to the plaintiff as grievous as any bodily injury could be, and that the plaintiff should have a remedy therefor. On the other hand, the argument is that such a doctrine is an innovation upon long-established and well-understoоd principles of law; that the difficulty of estimating the proper pecuniary compensation for mental distress is so great, its elements so vague, shadowy, and easily simulated, and the new field of litigation thus oрened up so vast, that the courts should not establish such a rule.

Eegarding, as we do, the Texas rule as a clear innovation upon the law as it previously existed, we shall decline to follow it, and shall adopt the other view, namely, that for mental distress alone, in such a case as the present, damages are not recoverable. The subject has been so fully and ably discussed in opinions very recently delivered that no very extended discussion will be attempted here. We refer specially to the opinions in Western Union Tel. Co. v. Rogers, 68 Miss. 748; Connell v. W. U. Tel. Co. 116 Mo. 34; Western Union. Tel. Co. v. Wood, 57 Fed. Rep. 471. See, also, Judge Lurton’s dissenting opinion in Wadsworth v. W. U. Tel. Co. 86 Tenn. 695. In the last-named opinion the following very apt remarks are made: “ The reason why an independent action for such damages cannot and ought not to be sustained is found in the remoteness of such damages, and in the metaphysical character of such an injury, considered apart from physical pain. Such injuries are generally more sentimental than substantial. Depending largely on physical and nervous conditions, the suffering of one under precisely the same circumstances would be no test of the suffering of another. Vague and shadowy, there is no possible standard by which such an injury can be justly compensated or even approximately measured. Easily sim*11ulаted and impossible to disprove, it falls within all of the objections to speculative ‍‌‌​‌​​‌​​‌‌​​​‌‌‌‌​​​​​‌‌​‌​​​​​​‌​‌‌​‌​‌‌​​​​‌‌‍damages, which are universally excluded because of their uncertain character.”

Another consideration whiсh is, perhaps, of equal importance consists in the great field for litigation which would be opened by the logical application of such a rule of damages. If a jury must measure the mental suffering occasioned by the failure to deliver this telegram, must they not also measure the vexation and grief arising from a failure to receive an invitation to a ball or a Thanksgiving dinner? Must not the mortification and chagrin сaused by the public use of opprobrious language be assuaged by money damages? Must not every wrongful act which causes pain or grief or vexation to another be measured in dollars and cents? Surely, a court should be slow to open so vast a field as this without cogent and overpowering reasons. For ourselves we see no such reasons. We adopt the language of Gantt, P. J., in Connell v. W. U. Tel. Co. 116 Mo. 34: “We prefer to travel yet awhile super anti-cuas vias. If, in the evolution of society and the law, this innovation should be deemed necessary, the legislature can be safely trusted to introduce it, with those limitations and safeguards which will be absolutely necessary, judging from the variety of cases that have sprung up since the promulgation of the Texas case.”

It was argued that under ch. 171, Laws of 1885 (S. & B. Ann. Stats, sec. 1170b), damages for injuries to feelings alone might be recovered. This law provides that • telegraph companies shall be liable for all damages occasioned by failure or negligence of their operators, servants, or employees in receiving, copying, transmitting, or delivering dispatches or messages. We cannot regard this statute as creating, or intended to create, in any way, new elements of damage. Whether its purpose was to obviate the difficulties which were held fatal to a recovery in the case of *12Candee v. W. U. Tel. Co. 34 Wis. 471, or to effect some other object, is not a question which now arises; but it seems clear to us that, had a radical change in the law relating to the kinds of suffering which should furnish a ground of damages been cоntemplated, the act would have expressed that intention in some unmistakable way. We see nothing in the law to indicate such intention.

Finally, it is said that verdicts for injuries to the feelings alone have been sustained in this court, and the following cases are cited: Wightman v. C. & N. W. R. Co. 73 Wis. 169; Craker v. C. & N. W. R. Co. 36 Wis. 657; Draper v. Baker, 61 Wis. 450. Without reviewing these cases in detail, it is sufficient to say that there was in all of them the element of injury or discomfort to the person, resulting ‍‌‌​‌​​‌​​‌‌​​​‌‌‌‌​​​​​‌‌​‌​​​​​​‌​‌‌​‌​‌‌​​​​‌‌‍either from actual оr threatened force, and they cannot be relied upon as precedents for the allowance of damages for mental sufferings alone.

It follows from these views that the instruction exceptеd to was erroneous.

By the Court.— Judgment reversed, and action remanded for a new trial.





Concurrence Opinion

Cassoday, J.

I fully concur in all that is said by my Brother Winslow in this case, except as to the effect to be given to ch. 171, Laws of 1885 (sec. 1770b, S. & B. Ann. Stats.). That statute in express terms makes telegraph companies “ liable for all damages occasioned by failure or negligence of their operators, servants or employees in receiving, coрying, transmitting, or delivering dispatches or messages.” It was manifestly intended to make such companies liable for a class of damages not recoverable against other corporations or individuals. If the statute gives no right of action for any damages except such as were recoverable at common law, then its enactment was an idle ceremony. This court, by a long line of decisions, has *13held thаt, in a proper case sounding in tort, compensatory damages may include ‍‌‌​‌​​‌​​‌‌​​​‌‌‌‌​​​​​‌‌​‌​​​​​​‌​‌‌​‌​‌‌​​​​‌‌‍not merely pecuniary loss or physical injury but also mental suffering. Craker v. C. & N. W. R. Co. 36 Wis. 657; Brown v. C., M. & St. P. R. Co. 54 Wis. 342; Wightman v. C. & N. W. R. Co. 73 Wis. 169; Grace v. Dempsey, 75 Wis. 313. These are only a few of many cases that might be cited. In Cutts v. W. U. Tel. Co. 71 Wis. 46, it wаs held that, under this statute, all damages resulting directly from such negligence in transmitting messages were recoverable. Unless the words “ all damages” in the act include such damage from mental suffering as was recoverable before the statute when accompanied by physical injury or pecuniary loss, then they are without meaning. “ All damages ” is the most comprehensive expression that could be used. The addition of any enumeration would only weaken the language employed. “ It is a universal rule of construction, founded in the clearest reason,” said BlaoK, C. J., “ that general words in any instrument or statute are strengthened by exceptions and weakened by enumeration.” Sharpless v. Philadelphia, 21 Pa. St. 161; Webster v. Morris, 66 Wis. 395.

Such, negligence of a telegraph company is unlike ordinary negligence. It may be similar to negligence in transmitting letters by mail. A telegram may occasionally produce pecuniary loss, but it is. difficult to perceive how it can produce physical injury. This may be why the statute is confined to the owners of telegraphs. It may be difficult to measure damages resulting frоm mental suffering alone, but it is no more so than when accompanied by physical injury or pecuniary loss; and all agree that, when so accompanied, it is recoverable.

The judicial mind may be reluсtant to depart from the established rules of the common law, but the legislative mandate is nevertheless imperative. “ It is the duty of all *14courts,” said Tindal, C. J., “to confine themselves to the words of ‍‌‌​‌​​‌​​‌‌​​​‌‌‌‌​​​​​‌‌​‌​​​​​​‌​‌‌​‌​‌‌​​​​‌‌‍the legislature, nothing adding thereto, nothing diminishing.” Everett v. Wells, 2 Scott, N. R. 531; Hanson v. Eichstaedt, 69 Wis. 538, and cases there cited.

For these reasons I most respectfully dissent from the conclusions reached by my brethren.