26 Ind. App. 213 | Ind. Ct. App. | 1901
This was an action commenced by appellee, Howard Ferguson, against appellant to recover dam
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
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
In International, etc., Tel. Co. v. Saunders, 32 Fla. 434, 14 South. 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 ivas 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 Relie 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 inj ury 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
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. Halton, 71 Ill. App. 63.
The same question is reviewed in the case of West v. Western Union Tel. Co., 39 Kan. 93, 17 Pac. 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 recov
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 have had the temerity to present such a case to a court of last resort in any of the eastern or northeastern states. * * * The Pandora box that has been opened by the ‘Texas doctrine’ proves more forcibly than argument the wisdom of the common-law rule, that damages of this kind cannot be recovered in actions on contracts. And, if damages of this kind are to be allowed for the breach of a contract of this character, where are we to stop ? * * * "Why not allow damages for the mental suffering or disappointment of passengers caused by the delay of trains through the negligence of the carrier ? The object of the journeys of travel is often not pecuniary, but to visit sick relatives or to attend the funerals of deceased ones, which are matters affecting the feelings as much and exclusively as a telegram. If the train is delayed through the negligence of the carrier, so that the passenger does not reach his destination in time to accomplish his desired object, why is he not entitled to damages for his disappointment and mental suffering as much as the sender or addressee of a delayed telegram ?”
In Lynch v. Knight, 9 H. L. Cas. 598, the court said: “Mental pain or anxiety the law cannot value, and does not pretend to redress, when the unlawful act complained of causes that alone.”
In Alsop v. Alsop, 5 Hurl. & N. 534, Pollock, C. B., said: “We ought to be careful not to introduce a new element of damage, recollecting to what a large class of actions it would apply, and what a dangerous use might be made of it.”
In Victorian R. Comrs. v. Coultas, L. R. 13 App. Cas. 222, it is held that an action cannot be maintained for mental suffering unaccompanied by physical injury. There is no conflict in the English cases upon this question. See, also, Spade v. Lynn, etc., R. Co., 168 Mass. 285, 47 N. E. 88; Hyatt v. Adams, 16 Mich. 180; Western Union Tel. Co. v. Rogers, 68 Miss. 748, 9 South. 823, 13 L. R. A. 859; Connell v. Western Union Tel. Co., 116 Mo. 34, 22 S. W. 345, 20 L. R. A. 172; Johnson v. Wells, Fargo & Co., 6 Nev. 224; Curtin v. Western Union Tel. Co., 42 N. Y. Supp. 1109; Morton v. Western Union Tel. Co., 53 Ohio St. 431, 41 N. E. 689, 32 L. R. A. 735; Butner v. Western Union Tel. Co., 2 Ok. 234, 37 Pac. 1087; Ewing v. Pittsburgh, etc., R. Co., 147 Pa. St. 40, 23 Atl. 340, 14 L. R. A. 666; Davis v. Western Union Tel. Co., 46 W. Va. 48, 32 S. E. 1026; Summerfield v. Western Union Tel. Co., 87 Wis. 1, 57 N. W. 973. And dissenting opinion in Wadsworth v.
It is worthy of note that the courts holding a contrary doctrine in Indiana, Tennessee (a divided court), Kentucky, North Carolina, and Alabama cite as their sole authority the So Relie case, which announced a rule contrary to the common law, and without statute or authority to sustain it.
Without burdening the court with a further citation of authorities, we are of the opinion that the rule announced in Reese v. Western Union Tel. Co., 123 Ind. 294, should be changed, because it has no authority in statute or common law; because it is a special rule and cannot be made general ; because under it there can be no proof of damages and no measure of damages; because it will work mischief and confusion, and because it denies to appellant, in this case, the equal protection of the law. We say the rule denies the appellant in this Case the equal protection of the law because it is not enforced against any other persons or corporations in the State. The State through its courts protects the property of all other persons and corporations from demands arising from mental anguish not accompanied by physical injury. If the rule is enforced, appellant’s property will be taken from it by the State and sold to pay a claim which could not be enforced against any other corporation or individual under exactly the same facts and circumstances. Kalen v. Terre Haute, etc., R. Co., 18 Ind. App. 202, 63 Am. St. 343; Cleveland, etc., R. Co. v. Stewart, 24 Ind. App. 374; Gaskins v. Runkle, 25 Ind. App. 584.
Such a rule, then, as that established in the Reese case, is in conflict with the fourteenth amendment of the Constitution of the United States. It was well said by Mr. Justice Matthews in Yick Wo v. Hopkins, 118 U. S., at page 373, 6 Sup. Ct. 1073, 30 L. Ed. 227: “Though the law itself be
The law must be administered according to rules not of special but of general application. A rule unwise in its general application will not serve the purposes of justice. These rules can not be made to fit each case. They are general and are framed with reference to the rights of both parties ; not merely to afford the injured party a just compensation for his injury, but also to measure in justice what the other party should pay.
With the greatest respect to the Supreme Court of Indiana, we herein exercise the right given us by statute, and transfer this cause to said court, with the recommendation that the law be held to be as herein indicated. The clerk is directed to certify this opinion to the Supreme Court and to transfer this cause to said court.