International Ocean Telegraph Co. v. Saunders , 32 Fla. 434 ( 1893 )

Mabry, J.,

dissenting.

The opinion of the majority of the court adopts the view that the person to whom a telegraphic message is sent, like the one in the case before us, can maintain an action for any legal damage that may directly result to him by reason of the violation of duty on the part of the company to send or deliver the message, where it appears that the party is interested in it, or is so connected with it as to be damaged on account of said neglect of duty. The obstacle thrown in the path of the plaintiff’s recovery in the present case relates to the damage for mental injury alleged to have been suffered on account of the company’s neglect of duty in seasonably delivering the message sent. The message, for a failure to deliver which suit was brought, is perfectly plain, and there is no obscurity about its; meaning. It is a summons of an absent husband to1 his dying wife, and there is no question about the company’s receipt of the usual toll for transmitting the-message and its undertaking to transmit the same. The plaintiff, according to his showing, sent his sick wife from Titusville to St. Luke’s hospital in Jacksonville, where he had made arrangements for her to go and be treated. • Titusville is in reach of Jacksonville1 by a half day’s public traveL At the time plaintiff’& wife left Titusville for Jacksonville he wired the hospital that she would arrive at a certain time, and informed the company’s operator at Titusville of the-wife’s condition, and told him that as he (plaintiff) expected to have business with the company, if any messages came for him he would be working in Titusville,, and boarding at the Lund house. The company introduced testimony tending to show that its messenger boy, after the message wus received, hunted for plaintiff in Titusville, and could not find him, and was told by parties that plaintiff had left town. Plaintiff remained in Titusville, however, and worked on a braiding being erected not far from the telegraph office; and there is no contradiction of plaintiff’s testimony about the information he gave to the-company’s operator-above mentioned. On the morning of the 4th of October a message was sent over the company’s line, and received at the Titusville office for the plaintiff in the following words: ‘‘Wife dying; come at once, or send wishes by wire.” This message was not then delivered, but on going to the telegraph office after dark on the. sixth clay of that month plaintiff was handed the message after his wife was dead and had been placed in the hands of the undertaker for interment. If the ■message had been seasonably delivered, the plaintiff ■could easily have been with his wife some time before her death, and could have arranged for her burial. 'The cost of transmitting the message was charged to plaintiff and he paid it.

If the jury believed plaintiff’s testimony, the inexcusable violation of duty on the part of the company not only caused plaintiff the useless expenditure of the cost of transmitting the message, but inflicted upon him directly great mental anguish and injury, as he testifies. The majority opinion holds, in effect, that there is no law in force in Florida to authorize the plaintiff to recover damages for mental pain and injury in such a case. Telegraphy is an American invention of comparatively recent date, long after the establishment of the common law rules which have come to us from former ages, and, I think, the application of legal, rules to telegraph companies, as shown by the prepon-’ derance of judicial thought in this country, should influence us in determining here for the first time whether or not there is any law for redressing such an admitted violation of public duty. It can not be successfully denied that a decided majority of the American state courts have held the company liable in such cases. The opinion of the majority of the court in the present case shows the decisions in Texas, Tennessee, Indiana, Kentucky and North Carolina have held such to be the law independent of any statutory íegu-lation, and the decision in W. U. Tel. Co. vs. Henderson, 89 Ala., 510, 7 South. Rep., 419, should be added. I do not understand that the opinion of the majority of the court claims for its support a majority of the •decisions numerically, and it expressly plants itself upon the dissenting opinion in the Tennessee case. I think Judge Lurton’s opinion in that case is the ablest I have seen on that side of the question, and if I could get my consent to follow, in such cases, the minority decisions, I would adopt that one as the best.

The decisions cited from Mississippi, Georgia, Dakota and Kansas support the main opinion. The one from Missouri was for the recovery of a statutory penalty of $100 for the neglect of the company to transmit a message from a husband away from home to his wife informing her that he would be at home the night of the day it should have been sent. The recovery was sustained, and in the opinion reference is made to the decisions holding that substantive damages for mental pain disconnected with physical injury could not be recovered, with the suggestion that the knowledge of such rule may have induced the legislature of Missouri to enact the statute under which the recovery was had.

It seems to be contended in the minority decisions that the rule enforcing liability for mental injury in such cases had its origin in the statement of the law by text-writers. The Mississippi case says: “It is upon the suggestion of text-writers supported by authorities which have been given a strained construction, and upon a misapplication of the rule that damages for breach of contract are commensurate with the injury contemplated by the parties, that some courts in recent years have decided that mental pain and anguish, disconnected from physical injury, furnish a substantive cause of action for which recovery may be had.” Shearman-& Redñeld are the offending initiatory text-writers in declaring in favor of the rule allowing damages in such cases (sec. 756, vol. 2), and a liberal share of criticism has been bestowed upon them for so doing. Vide also the text in Thompson on Electricity, sec. 379. It will be apparent, however, upon a fair reading of all that has been decided on this subject in this country — the birth-place of telegraphy — that the majority opinion is in favor of a different rule from that adopted by the opinion of the majority of the court in the case before us, and as I do not think the reasons for departing from the prevailing views are sufficient, I can not consent to do* so.

There can be no question but that the failure of the telegraph company to send or deliver a message can directly cause substantive damage and injury to the mind. The injury to the feelings inflicted directly by the company’s violation of duty may be greater than pecuniary loss to the pocket or to the reputation of a person. Mr. Wharton says in his book on Negligence, sec. 758: “A telegraphic company, wielding a power for good or evil only transcended by railway corporations, is eminently within the scope of the rule Sie utere toco ut oiooi alienuon Icedas. If it undertakes to exercise so tremendous a franchise, it must do spin a way which may not injure others.” In 3 Sutherland on Damages, page 314, it is stated' that: “In England, the only duty of a telegraph company is that arising out of contract, and, therefore, only the sender or party making the contract has a right of action. * * In' this country, however, a different doctrine prevails. The company’s employment is of a public character, and it owes the duty ©f care and good faith to both sender and receiver.” In the Georgia case, cited in the majority opinion and specially approved, the learned judge uses this language in his opinion: “But it is urged that the public occupation of telegraph ■companies creates between them and the public a special relation in which their responsibility is greater than that of other persons. So much of their business and profit is derived from the acceptance of messages involving feelings only, that at first view it would ■seem legitimate and salutary to require them to answer in damages for any dereliction of duty in this important matter of their activity. The argument is that in the exercise of a public employment, they undertake ■for hire to serve the feelings of their customers, and therefore, ought to pay for negligent non-performance or mis-performance of this peculiar function. This reasoning is unanswerable in so far as it proves a right of action to arise out of the breach of duty.” There-is here no confusing and misleading reference to the liabilities of individuals and corporations, but a just concession of legal duty imposed by the relation of a public trust and station. Where a corporation is created with the right and power to transmit telegraphic messages for compensation, and it engages in such employment and undertakes to send such messages, it is unciera duty to the public to perform its undertakings, and a failure 'to do so is a clear violation of public duty. The authority cited recognizes such a duty, and the law on this point is clear. The Georgia court, however, found for it an insuperable difficulty, as I understand the decision, in sustaining the action on account of the admeasurement of the damages. That is a serious difficulty in the majority opinion here. It goes too much into the realm of psychology, and there is no reliable way of ascertaining the injury to such an intangible and spiritual a thing as the mind. That damages have 'been and are constantly being awarded in many cases for pain and anguish of mind is admitted, but it is said that such damages are allowed only where some physical injury has been inflicted, and the mental injury is so connected therewith as not tobe severable therefrom. Would not the same argument' used in behalf of the telegraph companies exclude any inquiry into mental pain in all cases? Does not the same uncertainty as to ascertainment of the injury exist as much in the one case as in the other? The liability of the company can rest upon a safe and sure ground, without going into the field of speculation, and I think the majority of the ^decisions imposing such liability are right.

A telegraph company is under a public duty-by reason of its public station and employment, to transmit and deliver a plain, decent telegram, like the one in this case, and when the company accepts the usual toll and undertakes to send and deliver the message a con-tractural obligation exists between the company and the sender, or the party in interest, as the case may be. The contract may be waived, and suit brought in case for tort for breach of the public duty, the contract serving only the purpose of showing the relation of duty or obligation between the parties. This is the way the plaintiff sued in the case before us. Thar this can be done is beyond question. Rich vs. N. Y. Central & Hudson R. R. Co., 87 N. Y., 382. In actions of tort the plaintiff has a right to recover such damages-as result proximately and naturally from the wrongful act of the defendant. The company is under a public duty to do a certain specific thing, that is in the case here to transmit and deliver a message informing the husband that his wife was dying. The husband had a right to rely upon the company to perform this duty, as it had invited'such confidence. On a violation of this duty the company should be held liable for the damages that result proximately and naturally therefrom. As was said in one of tlie decisions cited in the main opinion: “If a telegraph company undertakes to send a message and fails to use ordinary diligence in doing so, it is certainly liable for some damage. It has violated its contract, and whenever a party does so Ire is liable at least to some extent. Every infraction of a legal right causes injury, in contemplation of law. The party being entitled in such a case to recover something, why should not an injury to the feeling which is often more injurious than a physical one, enter into the estimate? Why, being entitled to some damage - by reason' of the other party’s wrongful act, should not the complaining party recover all the damages arising therefrom?” In the Alabama case it was held that -when the plaintiff is entitled to recover for the cost of the telegram, he may also recover for mental pain and injury resulting directly from the violation of duty on the. part of the company. “In cases of bodily injury, the mental suffering is not more directly and naturally the result of of the wrongful act than in this — not more obviously the consequence of -the wrong done than in this.” That a rule for recovery against the company in such cases should exist is acknowledged by all. I find such a rule already established by a majority of the decisions made by eminent judges and courts of high standing in this country, and I am in favor of following them. They are on the side of right and justice.