International Ocean Telegraph Company, Appellant, vs. Charles Saunders, Appellee, 32 Fla. 434

Taylok, J.: The appellee sued the appellant, in case, for its alleged negligence in not promptly delivering to him a telegram transmitted over its line. The plaintiff recovered judgment for $1,200, and from such judgment the defendant company appeals. The declaration is as follows: “The defendant, Charles Saunders, byD. L. (Jaulden, his attorney, sues the International Ocean Telegraph Company, for that whereas the defendant on the 4th day of October, A.

D, 1890, was possessed of and using and operating a certain telegraph line extending from the city of Jacksonville, Duval county, State of Florida, to the town of Titusville, Brevard county, State of Florida, that said two places are distant from each other about 160 miles, and are connected by direct line of said defendant telegraph company, and the Jacksonville, Tampa & Key West Railway. That plaintiff’s wile, Alice J.

Saunders, on the said 4th day of October, 1891,' was seized with a mortal malady in the said city of Jacksonville, and that about the hour of seven o’clock on the morning of October 4th, 1890, the superintendent of St. Luke’s Hospital presented to the defendant the following message, to-wit: “JACKSONVILLE, Fla., Oct. 4th, 1S90. Charles Saunders, Titusville: Wife dying; come at once, or send wishes by wire. (Signed) SUPERINTENDENT St.

Luke’s Hospital.”' That said message was accepted by the defendant for immediate transmission and delivery to him at Titus-ville at the full rate charges or toll, and that through the gross, wanton and reckless negligence of defendant, and in palpable violation of its duty the message was held by the defendant and not delivered to him until about the hour of half past nine o’clock on the night of the sixth day of October, A. D. 1890.

That said message was received at said Titusville office on the morning of the fourth day of October, 1890, at half past eight o’clock, but was not delivered to him for over sixty hours after the same was received at the Titusville office. That his said wife died in the city of Jacksonville on the 6th day of October, 1890, and hence said message was not delivered to him or received by him until ten and a half hours after his. said wife’s death. That there was only one train leaving Titusville each day, at the hour of nine o’clock A.

M., for the city of Jacksonville, which said train arrived in Jacksonville at the hour of half past six o’clock P. M. That had said message been delivered promptly he could have arrived in Jacksonville on Sat-urclay night, October 4th, 1890. That by reason of this negligence and breach of duty on the part of the defendant, he was prevented from telegraphing to said superintendent liis wishes, and was prevented from attending his dying wife and ministering to her in her last hours, and also from making desired preparations for her interment. That said message was sent by the •superintendent of St.

Luke’s Hospital, and he paid defendant full rates or 'toll therefor, to-wit: the sum of forty cents, at the Titusville office, and as said defendant failed to deliver said message promptly, and notified the said superintendent of St. Luke's Hospital that said message had not been delivered, and collected the sum of forty cents charges on said message, which said forty cents was charged to plaintiff by said superintendent, and'which he had to pay, thereby entailing a loss of forty cents on this plaintiff.

By reason of which said defaults, wrong and negligence on the said defendant’s part, plaintiff incurrrd a loss and damage of the said forty cents, paid as aforesaid on account of the charges made and collected from said superintendent of St. Luke's Hospital, which -plaintiff had to pay as a legitimate charge against Mm. And besides this the plaintiff suffered great damage by reason of said wrong and injur y so done by the defendant to his affections and feelings; and the plaintiff then and there .suffered great damage in anguish and pain of mind by reason of the said negligence and wrong so done him by defendant.

That while his said wife was dying she was deprived of that care, attention, consideration and consolation which she would have received but for said negligence of said defendant in failing to deliver ■said message promptly as aforesaid, and that by reason thereof he was damaged in that he suffered great .mortification, anguish aird pain of mind and injury t-o Ms feelings and affections in not being able to be with his said wife in her dying hours,' and in not being able to make preparations for his wife’s funeral and interment, all of which damaged plaintiff in the sum of $1,995,” etc.

At plaintiff’s request the following instruction was-given to the jury : “If from the evidence you believe that the superintendent of St.

Luke’s Hospital sent the following message to the plaintiff: ‘Wife dying; come at once, or send wishes by wire,’ and said message was accepted by the defendant for transmission, and the toll or charges on same was paid to defendant, and this message was negligently delayed in delivery by defendant company, whereby plaintiff Saunders; was prevented from attending his dying wife, and from making desired preparations for her funeral, the plaintiff, Saunders, would be entitled to recover for the wrong and injury done his feelings, and for the mental anguish and pain of mind suffered by him; and in making up yonr verdict you must take into consideration all the testimony and fix his damages, if any, at such amount as you think from the evidence is just, reasonable, proper and fair.” To this charge exception was taken, and the error assigned thereon presents the real issue involved in the cause: Can an action be sustained and can damages be admeasured for the breach of a contract that results in mental suffering alone, without any accompanying physical injury or suffering, and without any concomitant damage to the-person, character, reputation or property ?

The Supreme Court of Texas, in So Relle vs. Western Union Tel. Co., 55 Texas, 308 (decided in 1881), a. case in which the telegraph company negligently failed to promptly deliver a telegram informing plaintiff of the death of his mother, and summoning him. to meet a conveyance at a certain point that night, that would carry him' to where the remains of his mother were, in time to attend her funeral, first led off with an affirmative answer to the question.

The court in that case asserts that it is the settled rule of law in that state that injury to th'e feelings, caused by the wilful neglect or fault of another, constitutes su h actual damages for which a recovery may be had, and cites as authority for such assertion the cases of Hays vs. H. & G. N. R. R. Co., 46 Texas, 279, and H. & G. N. R. R. Co. vs. Randall, 50 Texas, 261. In neither of these cases is the doctrine either settled or asserted that injury to the feelings, or mental suffering alone can be made the subject of a suit for compensative damages.

The case of Hays, supra, was against a railroad company for damages for wrongfully and forcibly ejecting the plaintiff from its passenger train in the presence of his wife and family, in which it was claimed that the ejectment was done in a rude and insulting manner, and by personal violence, resulting in injuries to plaintiff’s clothing, and bruises to his person.

Exemplary or punitive damages were claimed, and the jnry were instructed to estimate the actual damages by the “injuries sustained by the plaintiff in his person, his estate and his feelings,” and it was held that by this charge the subject of the amount of actual damages was fairly placed before the jury. But nowhere is it asserted that mental suffering alone can be made an independent ba,sis for admeasuring damages.

The case, like many others founded on tort that might be cited, simply holds that mental suffering or injured feelings may be taken into consideration as an element of damage when coupled with or accompanied by substantive injury to the person or estate, upon the ground, as stated in the authorities, that in such cases the mental suffering growing out of and produced by the physical injury is so interwoven with the latter that it is impossible to consider the one without contemplating the other. City of Salina vs. Trosper, 27 Kan., 544; Mulford vs. Clewell, 21 Ohio St., 191; Canning vs.

Williamston, 1 Cush., 451; I. & St. L. R. R. Co. vs. Stables, 62 Ill., 313; Johnson vs. Wells, Fargo & Co., 6 Nev., 224; Kennon vs. Gilmer, 131 U. S., 22; Trigg vs. St. L., Kansas City & Northern Ry. Co., 74 Mo., 147. The same may be said of the case of Randall, supra. In that case the plaintiff, a brakeman on the defendant's trains, sued the company for damages for its negligence in having an open ditch across its track, into which he fell while performing the duty of coupling two of defendant’s cars, and whereby his arm was run over and crushed by the cars, necessitating its amputation.

Iii that case, too, the doctrine is sanctioned that an element of the verdict may be compensation for the mental and physical suffering caused by the injury. But nowhere is the doctrine sanctioned that mental suffering alone can sustain an action. 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 vs.

Hoyle, 4 Gray, 568, is next invoked to the support of the Texas court, where injury to the feelings of the parent in consequence of the daughters 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 com pensation, but as a standard by which to estimate the enormity of the outrage, wilfully committed, and as a guide whether the damages to be allowed, as punishment, shall be higher or lower. The next and last authority cited to the support of the So Relie case is the case of Roberts vs.

Graham, 6 Wall., 578, but we fail to find in it any reference whatever to the subject of damages for injured feelings or mental suffering, the whole case being confined to a discussion of the question of the sufficiency of the allegations of a declaration or complaint for general damages as a predicate for the introduction of proof of special damage. The doctrine of the So Relie case has for its support, then, in reality, only the unsupported dictum of Mess. Shearman & Redfield, in their work on Negligence. In the case of Gulf C. & Santa Fe Ry. Co. vs.

Levy, 59 Texas, 563, decided in 1883, the So Relie case was expressly overruled in so far as it held that an action for mental suffering alone could be maintained. In Stuart vs. Western Union Tel. Co., 66 Texas, 580, decided in 1886, the Levy case, supra-, is practically overruled, and the court, without the support of any additional authorities, returns to the doctrine of the So Relie case. The ruling in Stuart vs. Western Union Tel.

Co. has been adhered to in that state ever since, encumbered, however, with finely drawn distinctions that seem to keep an even pace with the rapid increase of litigation that the enunciation of such a doctrine would naturally engender. Western Union Tel. Co. vs. Cooper, 71 Texas, 507; Western Union Tel. Co. vs. Broesche, 72 Texas, 654; Western Union Tel. Co. vs. Simpson, 73 Texas, 422; Western Union Tel. Co. vs. Feegles, 75 Texas, 537. In Beasley vs. Western Union Tel. Co., 39 Fed.

Rep., 181. the Circuit Court of the United States for the Western District of Texas, the same doctrine is announced upon the authority alone of the holdings of the Supreme Court of that state. The Supreme Court of Tennessee, in Wadsworth vs. Telegraph Co., 86 Tenn., 695, by a divided court, next follow the Texas doctrine, citing only the dictum of Shearman & Redfield in addition to the Texas cases. The dissenting opinion of Judge Lurton in that case is unusually forceful and clear, and, according to our view, states the true rule in an argument that is unanswerable. The Supreme Court of Indiana, in Reese vs.

Western Union Tel. Co., 123 Ind., 294, next follows the Texas doctrine, citing only the cases from that State with the additional case from Tennessee. The Supreme Court of Kentucky, in Chapman vs. Western Union Tel. Co., 30 Am. & Eng. Corp. Cases, 626, next cite and follow the Texas and Tennessee cases. The Supreme Court of North Carolina, in Young vs. Western Union Tel. Co., 107 N. C. 370, next cite and follow the Texas cases, citing to its support also the cases from Tennessee, Kentucky and Indiana that, it will be remembered, are predicated upon the Texas cases. In Stuart vs. Western Union Tel.

Co., supra, the liability of telegraph companies to damages for mental suffering caused by their failure to transmit or deliver telegrams is put expressly and pointedly upon the ground, that the mental suffering produced by the company’s breach of its contract was within the contemplation of the company at the time it made the contract as the result that would naturally follow a breach of it.

Would the Texas court award damages to one individual for the poignant mental sting resulting from being wilfully, publicly and deliberately taunted on the street by an irate enemy with the insult that he-was a cowardly cur, simply because the mortification and wounded feelings that would surely follow were within the contemplation of the insulter? We apprehend not; and yet in the latter case the deliberate purpose of the insulter would, be to produce such mental anguish.

To draw the comparison closer still: An individual borrows his neighbor’s money, agreeing to pay at a given day, knowing in advance that his default then will surely result in the mind-harrowing tortures to his accommodating friend of utter financial ruin — a species of suffering that, unfortunately, to-many is far more acute than any connected with the-ties of kinship — could damages be allowed in that case for the mental torture, simply because the borrowing friend contemplated and knew that it would follow as-the result of a breach of his contract to pay?

Certainly not; and yet such is the effect of the doctrine-announced in the Stuart case when followed to its logical result. Suppose a mother, whose child is critically ill, contracts -with her neighbor, at a stipulated', price paid in advance, to summon her husband, temporarily absent some distance away, and the neighbor-delays complying with his contract until after the death and burial of the child, would damages be-awarded against him to compensate the parents for the-mental anguish suffered by them in consequence of the absence of the husband under such circumstances? •We apprehend not.

And if not in the case of the-violated contract between individuals, where is the-reason for applying a different rule where one of the-contracting parties is a telegraph company? In all of" these cases, taking them up seriatim in the order in which they -were rendered, there is a conspicuous ab-sen.ce of anything like a logical reason upon which to base the newly announced docrtine of allowing com-pensative damages for injured feelings alone. They simply follow each other without the addition of any new light or other attempt at reason for the thing, than is contained in the parent Texas case.

None of them undertake to invent any crucible in which mental pain can, with anything like judicial accuracy, be converted into compensative dollars; but all of them are plethoric with argument admirably suited to cases that call for the infliction of punishment, with none to guide us to the door for just compensation. Yet, as a matter of course, none of them pretend to ground the right of recovery upon the idea that the infliction of punitive or exemplary damages is permissible in such cases.

It should not be lost sight of in considering this class of cases that, although the action, as in the present case, is in form ex delicto, its foundation is a contract, and, that in substance, it is an action ex con-tractu for compensatory damages for the breach of such contract. Tort being defined to be “a wrong independent of contract.” Addison on Contracts (7th ed.), 1.

We should keep closely in mind also that in actions sounding in tort but growing out of contracts, with the single exception of the breach of a contract to marry, that in this respect is sui generis, exemplary or punitive damages are never permitted, but •only the actual damage resulting from tile breach. Field on Damages, sec. 94; 3 Parsons on Contracts, 180; Lawson on Contracts, sec. 463.

With these principles in mind, and in view of the utter impossibility of either proving or affixing a monetary valuation upon mental suffering, it seems apparent that in order to sustain the money award therefor, we must do so necessarily without proof, and are driven to the necessity of confessing that a jury in awarding it can not be governed by any other guide or check than that dictated by whim or arbitrary caprice, the same lati-tudinous and uncertain field in which they are left when dealing with a case calling for 'punishment instead of compensation. In Lynch vs. Knight, 9 H. L.

Cases, 577, Lord Wensleydale says: ‘‘Mental pain -or anxiety the law can not value, and does not pretend to redress, when the unlawful act causes that alone; though where a material damage occurs, and is connected with it, it is impossible a jury, in estimating it, should altogether overlook the feelings of the party interested.” In Blake vs. Mid. Ry. Co., 10 Eng. Law & Eq., 437, where a widow sued for the death of her husband under the statute of the 9th and 10th Victoria, c. 93, allowing damages in such cases.

Lord Coleridge says: ‘‘The jury, in assessing the damages, are confined to injuries of which a pecuniary estimate can be made, and can not take into their consideration the mental suffering occasioned to the survivors by his death.” Wyman vs. Leavitt, 71 Maine, 227; Johnson vs. Wells, Fargo & Co., 6 Nev., 224; Webb vs. Denver & Rio Grande West. Ry. Co. (Utah), 44 Am. & Eng. R. R. Cases, 683. In Detroit Daily Post Co. vs.

McArthur, 16 Mich., 447, a libel casein which Chief-Justice Cooley concurred, Judge Campbell, delivering the opinion of the court, says : “The injury to the feelings is only allowed to be considered in those torts which consist of some voluntary act, or very gross neglect, and practically depends very closely on the degree of fault evinced by all the circumstances.” From these authorities it seems to have been the settled rule of law, ■prior to the doctrine applied by the Texas courts to the breach of contracts by telegraph companies for the transmission or delivery of telegraphic communications relating to domestic affairs, that mental suffering -was never allowed to be considered as an element of damages for which pecuniary compensation could be awarded, except (1) in cases of torts where there was some physical injury and bodily suffering; in. which cases, whether there were any circumstances justifying exemplary damages or not, the mental suffering, incident to, connected with and flowing directly from the physical injury, was permitted to be considered in .connection with the physical pain, both talcen together, but not the one disconnected from the other; and (2) in cases founded purely in tort where the negligence was so gross as to reasonably imply malice; or where from the entire want of care or attention to duty, or great indifference to the persons, property or rights of others, such malice will be imputed as would justify the assessment of exemplary or punitive damages; and (8) in cases growing out of contract, in the one exceptional case of the breach of a contract to marry.

It is impossible for ns to conceive of a case where compensation, only, in its strictest sense, for the breach of a contract is sought for, and in which the only element of injury is temporary mental pain, how any award for such mental suffering can be sustained on the theory of compensation, without violating the fundamental principles of the law in the administration of civil redress. One of these principles is, that verdicts awarding pecuniary compensation, strictly speaking, must •be supported by competent proofs.

Can the extent or moneyed value of mental anguish be established, even -approximately, by any known method of legal proofs? If not, then the verdict assigning to it a value in dollars and cents can not stand because of the want of proof to sustain it. Because of this, as it seems to us, insurmountable difficulty, w7e can not agree with the Texas and other courts that have followed her, in sustaining pecuniary awards for mental suffering that are wholly unsupported by any recognized legal proofs. In this view of the law we are fully sustained by the able opinion of Judge Cooper, in Western Union Tel. Co. vs.

Rogers, 68 Miss., 748, in which the authorities are exhaustively reviewed and tersely criticised, and by the following cases: Burnett vs. Western Union Tel. Co., 39 Mo. App., 599; Russell vs. Western Union Tel. Co., 3 Dak., 315; West vs. Western Union Tel. Co., 39 Kansas, 93; Chase vs. Western Union Tel. Co., 44 Fed. Rep., 554; Crawson vs. Western Union Tel. Co., 47 Fed. Rep., 544; Owen vs. Henman, 1 Watts & Serg., 548. See also the exhaustive opinion by Justice Lumpkin, of the,Supreme Court of Gfeorgia, rendered in March, 1892, in Chapman vs. Western Union Tel. Co., 88 Ga., 763.

In the case under consideration the plaintiff’s suit, though sounding in tort, is for compensation only, for the breach by the defendant telegraph company of its contract promptly to deliver a telegram summoning him to the death-bed of his wife. His only injury, resulting directly from such breach of contract, was mental suffering and disappointment in not being able to attend upon his wife in her last moments, and to be present at her funeral.

The resultant injury is one that soars so exclusively within the realms of spirit land that it is beyond the reach of the courts to deal with or to compensate by any of .the known standards of value. It presents a class of cases where legislative action fixing some standard of recovery would be highly appropriate, but until this action is taken we do not- feel that the courts are authorized to so widely diverge from the circumscribed limits of judicial action as to‘ undertake to mete out compensation in money for the spiritually intangible.

Under these circumstances we do not think that the plaintiff was entitled to any other than nominal damages, ror, at most, the cost of the message whose delivery was delayed. The charge of the court that was excepted to was erroneous. This disposes of the main question involved.

Upon the other question presented, as to whether the-person to whom a telegram, like the one involved herein, is sent can maintain an action for any legal damage that may result to him from the negligence of the company in its transmission or delivery, we are of the opinion that he can where the message shows that he is interested in it, • or that it is for his benefit, or that damage will result to him from its negligent transmission or delivery. Gray on Communication by Telegraph,

Section 65, and citations; Thompson on Law of Electricity, Sections 426, 428 et seq., and citations. The judgment of the court below is reversed and a new trial ordered.