Obrázky stránek

&Gay Furniture Co. v. Hascall, 123 Ind. 502, 24 N. E. 336, 8 L. R. A. 65; Lowe v. Turpie, 147 Ind. 652, 44 N. E. 25, 47 N. E. 150, 37 L. R. A. 233; Western Union Tel. Co. v. Ferguson, 157 Ind. 64, 60 N. E. 674, 1080, 54 L. R. A. 846; Acme Cycle Co. v. Clarke, 157 Ind. 271, 61 N. E. 561; Bierhaus v. Western Union Tel. Co., 8 Ind. App. 246, 34 N. E. 581; Western Union Tel. Co. v. Henley, 23 Ind. App. 14, 54 N. E. 775. In 2 Shearman and Redfield on Negligence, fifth edition, section 754, it is said to be settled in a majority of the courts that only the cost of the message can be recovered for failure to transmit a message properly and correctly, unless the telegrapher had notice, from the message itself or from the information furnished with it, that its nondelivery would probably be attended with other damages: See Western Union. Tel. Co. v. Henley, 23 Ind. App. 14, 54 N. E. 775, and cases cited therein.

Assuming, for the purposes of the argument, that it could have been sufficiently established by satisfactory evidence that if the appellant had been informed promptly of the receipt. of the service message he would have paid the extra charge. and the appellant's dispatch would then have been delivered promptly to his father, and he could and would have safely reached the appellant on the next day, or before his collapse and the rupture of his intestine, and that such injury resulted wholly or in part from the lack of his father's nursing, yet the rupture of an intestine cannot fairly and reasonably be considered as arising naturally, according to the usual course of things, from the default of the telegraph company in not promptly delivering such a message as was sent, and it does not appear that the appellee had any information concerning the special circumstances, from which it could reasonably be supposed that such physical consequence from such contemplated, as a result of its default, at the time of the making of the contract or at the time of the de

a cause was


So The person who presented the dispatch to the appellee's agent stated to him that she had a message to be sent to Leander Kagy, at Bloomfield, Ohio, and that Mr. and Mrs. Vetis E. Kagy were ill, and that the appellant's father lived in the country. Except that the appellant's father lived in the country, and inferentially that he was the addressee, and that the person sick other than the sender was his wife, no information in addition to that contained in the dispatch was

imparted to the appellee. The information may perhaps be regarded as sufficient to apprise the appellee that failure to perform its duty by promptly sending and delivering the dispatch would probably result in disappointment, anxiety and "mental anguish" to the sender; but it does not appear that the appellee was notified by the dispatch or otherwise that the person to whom the dispatch was addressed was a careful and efficient nurse, or that he had large experience in nursing the sick, or that the appellee knew of such experience, or that nurses competent to treat the appellant's disease were scarce at Peru and in its vicinity, or that the appellant's condition or that of his wife was such that it had become necessary to procure a competent nurse and assistant, or that the appellant wrote and sent the message to the appellee's office for the purpose of procuring the immediate presence of his father to nurse and assist the appellant during his illness. or that default in the sending or delivery of the dispatch would result in any lack of nursing of the appellant. Whatever may be said in a proper case concerning an averment of the lack of a competent nurse as an adequate proximate cause of such a physical result, the matter is not properly involved in the pleading before us: See Central Union Tel. Co. v. Swoveland, 14 Ind. App. 341, 42 N. E. 1035.

It is now the rule of law in this state, in harmony with the weight of authority elsewhere, that damages cannot 81 be recovered for mental anguish alone caused through the negligent failure of a telegraph company to deliver a telegraphic message: Western Union Tel. Co. v. Ferguson, 26 Ind. App. 213, 59 N. E. 416; Western Union Tel. Co. v. Ferguson, 157 Ind. 64, 60 N. E. 674, 1080, 54 L. R. A. 846. That this must be regarded as settled is not disputed in this case; but it is insisted on behalf of the appellant that we should hold that damages may be recovered where physical injury is consequent upon mental anxiety or anguish, as stated in this complaint, and the contention of counsel relates chiefly to this question, it being supposed by counsel for the appellant not to be decided or settled in this jurisdiction.

We need not lengthen this opinion by discussion of the various familiar instances in which mental suffering is admitted without question as an element in the assessment of damages. The question here presented in argument is, whether, in a case where the direct effect of the defendant's negligence is mental anxiety and distress, for which alone no

damages are recoverable, however real and manifest the mental disturbance be, there may be recovery for physical consequence of such mental hurt. Every serious mental shock or tension has physical sequences of varying severity and duration, which are immediately connected with and naturally dependent upon the mental disturbance as the cause thereof. If mental injury of such character is so obscure and incapable of satisfactory investigation in a court of justice that it is wise policy not to submit the matter to a jury, the physical depression or irregularity reasonably to be expected therefrom is ordinarily not less difficult of being intelligently apprehended as a measure of damages. In the case before us the alleged consequence was the rupture of an intestine. Even where damages are followed in such cases, as in some jurisdictions, for mere mental suffering, it is said that they "ought not to be enhanced by evidence of any circumstances which 82 could not reasonably have been anticipated as probable from the notice received by the telegrapher": 2 Shearman and Redfield on Negligence, 5th ed., sec. 756, and cases cited.

Illness arising from the excitement which defamatory language may produce is not, it was held, that sort of damage which forms a ground of action: Allsop v. Allsop, 5 Hurl. & N. 534. The court treated the physical illness as it would the mental distress which caused the illness.

In Kalen v. Terre Haute etc. R. Co., 18 Ind. App. 202, 63 Am. St. Rep. 343, 47 N. E. 694, where it was alleged that the defendant by its servant negligently let down a gate at a railroad crossing, and thereby the horse, drawing a carriage in which the plaintiff was riding, became frightened, etc., whereby the plaintiff received a severe nervous shock, was greatly frightened, and her life was put in great and immiLent peril, and she had suffered great mental pain and anxiety, etc., we held that the complaint did not show a ground for the recovery of substantial damages. We said: "It is not shown that any physical ailment or distress followed as a consequence of the shock, which is not described as enduring, if that would make any difference in the case"thereby confining the decision to the facts of the particular


In Mitchell v. Rochester R. Co., 151 N. Y. 107, 56 Am. St. Rep. 604, 45 N. E. 354, 34 L. R. A. 781, it was said: "Assuming that fright cannot form the basis of an action, it is obvious that no recovery can be had for injuries resulting

therefrom. That the result may be nervous disease, blindness, insanity, or even a miscarriage, in no way changes the principle. These results merely show the degree of the fright, or the extent of the damages.

In Braun v. Craven, 175 Ill. 401, 51 N. E. 657, 42 L. R. A. 199, where the wrongful conduct of the defendant occasioned the plaintiff's fright, unaccompanied with physical injury, though a nervous shock and subsequent 83 illness resulted, it was held that there could be no recovery: See, also, Ewing v. Pittsburgh etc. R. Co.. 147 Pa. 40, 30 Am. St. Rep. 709, 23 Atl. 340, 14 L. R. A. 666; Spade v. Lynn etc. R. Co., 168 Mass. 285, 60 Am. St. Rep. 393, 47 N. E. 88, 38 L. R. A. 512; Cleveland etc. R. Co. v. Stewart, 24 Ind. App. 374, 56 N. E. 917, and cases cited therein; Gaskins v. Runkle, 25 Ind. App. 584, 58 N. E. 740.

We are unable to find any reason for allowing the recovery of damages for physical injury resulting from mental anxiety and suffering, occasioned by negligence, which would not require us to hold the defendant to liability where the consequence of such negligence is mental suffering alone. Judgment affirmed.


I. Liability in General.

a. Damages Must be Such as Were in Contemplation of the Parties, 288.

II. Notice of Knowledge of Circumstances.

a. Necessity for, 289.

b. Importance Apparent on Face of Message, 290.

c. Extraneous Evidence of Nature of Message, 291.

d. Cipher Messages, 291.

III. Damages Must not be Remote, Contingent or Speculative, 293. IV. Injury to Credit, 295.

V. Loss of Expected Profits.

a. In General, 295.

b. Messages to Agents to Sell, 295.

VI. Loss of Employment, 296.

VII. Loss of Professional Fees, 296.

VIII. Loss of Services, 296.

IX. Losses Which could have been Prevented.

a. In General, 297.

b. Messages to Creditors Regarding Failing Debtors, 297.

X. Failure to Transmit Money, 298.

XI. Mistakes or Errors in Transmission, 298.

XII. Particular Kinds of Messages.

a. Messages Relating to Gambling Transactions, 300.
b. Forged or Fraudulent Messages, 300.

c. Immoral or Indecent Messages, 300.

d. Libelous Messages, 300.

XIII. Mental Anguish in General, 301.

XIV. Mental Anguish Incident to Messages Relating to Sickness, Death and Burial.

a. In General, 305.

b. Relationship of the Parties, 315.

c. Notice of Knowledge as Affecting Right, 316.

d. Messages Summoning a Physician, 319.

e. Remote, Contingent and Speculative Damages, 319.

f. Exemplary Damages, 322.

g. Interstate Messages-What Law Governs, 323.

I. Liability in General.

Telegraph companies were formerly regarded by the courts as common carriers, and held liable as insurers of the correctness of messages offered for transmission. This view has been universally abandoned, and their liability is now limited to losses caused by their negligence. Hence it may be stated as a general rule that a telegraph company is liable for such damages as naturally and proximately arise from its negligent failure to transmit and deliver a message without unreasonable delay: Western Union Tel. Co. v. Cunningham, 99 Ala. 314, 14 South. 579; Little Rock etc. Tel. Co. v. Davis, 41 Ark. 79; Parks v. Alta California Tel. Co., 13 Cal. 422, 73 Am. Dec. 589; Postal Telegraph Cable Co. v. Barwise, 11 Colo. App. 328, 53 Pac. 252; Western Union Tel. Co. v. Hyer, 22 Fla. 637, 1 Am. St. Rep. 222, 1 South. 129; Western Union Tel. Co. v. Fontaine, 58 Ga. 433; Western Union Tel. Co. v. Blanchard, 68 Ga. 229, 45 Am. Rep. 480; Tyler v. Western Union Tel. Co., 60 Ill. 421, 14 Am. Rep. 38; Western Union Tel. Co. v. Kemp, 55 Ill. App. 583; Western Union Tel. Co. v. Du Bois, 128 Ill. 248, 15 Am. St. Rep. 109, 21 N. E. 4; Western Union Tel. Co. v. Buchannan, 35 Ind. 429, 9 Am. Rep. 744; Bierhaus V. Western Union Tel. Co., 8 Ind. App. 246, 34 N. E. 581; West v. Western Union Tel. Co., 13 Kan. 93, 7 Am. St. Rep. 569, 17 Pac. 807; Bartlett v. Western Union Tel. Co., 62 Me. 209, 16 Am. Rep. 437; Birney v. New York etc. Printing Tel. Co., 18 Md. 341, 81 Am. Dec. 607; Grinnell v. Western Union Tel. Co., 113 Mass. 299, 18 Am. Rep. 485; Western Union Tel. Co. v. Carew, 15 Mich. 625; Leonard v. New York etc. Tel. Co., 41 N. Y. 544, 1 Am. Rep. 446; Baldwin v. Western Union Tel Co., 45 N. Y. 744, 6 Am. Rep. 165; Green v. Western Union Tel. Co., 136 N. C. 489, 103 Am. St. Rep. 955, 49 S. E. 165, 67 L. R. A. 985; Western Union Tel. Co. v. Griswold, 37 Ohio St. 301, 41 Am. Rep. 500; Wolfe v. Western Union Tel. Co., 62 Pa. 83, 1 Am. Rep. 387; Western Union Tel. Co. v. Neill, 57 Tex. 283, 44 Am. Rep. 589; Western Union Tel. Co. v. Jobe, 6 Tex. Civ. App. 403, 25 S. W. 168,

1036; Western Union Tel. Co. v.

Reynolds, 77 Va. 173, 46 Am. Rep.

715; Hibbard v. Western Union Tel. Co., 33 Wis. 558, 14 Am. Rep.


« PředchozíPokračovat »