Telegraph Co. v. Bryant.

It is further adjudged by this court that the Circuit Court make a supplemental decree, enlarging the period within which the defendants may make such arrangements, adjustments, and changes as shall become necessary by reason of the annulling of the contracts of October 1, 1866, September 1, 1869, December 14, 1871, and July 1, 1881, and to carry out the provisions of the final decree of that court. Reversed.

Mr. Justice BREWER took no part in the hearing or decision of this case on the present appeal.

WESTERN UNION TELEGRAPH COMPANY V. NANCY BRYANT.

Indiana Appellate Court, Feb. 17, 1897.

FAILURE TO DELIVER TELEGRAM-NOTICE OF IMPORTANCE-MENTAL DISTRESS.

Mental distress alone warrant recovery of damages from a telegraph company for failure to deliver a message.

Telegram in words: "Cannot come to-day. Will come to-morrow," does not sufficiently apprise the telegraph company to which it is presented for transmission that mental distress will be the probable result of failure to deliver.

Physical discomfort of a woman in walking four blocks and carrying heavy bundles does not warrant recovery against telegraph company whose negligent failure to deliver a telegram caused her such exertion. Complaint held sufficient to permit recovery of actual damages. Cases of this series cited in opinion, appearing in bold faced type: Reese v. W. U. Tel. Co., vol. 3, p. 640; McAllen v. W. U. Tel. Co., vol. 2, p. 786.

APPEAL by defendant from judgment of Circuit Court, Monroe county. Facts stated in opinion.

Loudon & Loudon, for appellant.

East & Miller and James E. Steele, for appellee.

COMSTOCK, C. J.: The appellee sought to recover

Telegraph Co. v. Bryant.

damages against the appellant for failure to transmit and deliver a telegraph message to her husband. Trial by jury, and judgment for $105. The complaint was in two paragraphs. The first was for the statutory penalty. The second for special damages arising from the failure of the defendant to transmit and deliver the message. The appellant has assigned four errors, viz.: (1) Error of the court in overruling the demurrer of the appellant to each paragraph of complaint; (2) error in overruling appellant's motion for a new trial; (3) error in overruling appellant's motion for judgment in its favor on the special verdict (4) error in sustaining motion of appellee for judgment on the special verdict.

The jury were instructed that under the first paragraph of the complaint they could not allow the plaintiff more than $100. As the verdict returned is for $105, it is evident that their finding was upon the second paragraph. We do not, therefore, deem it necessary to say more in reference to the second paragraph than that, so far as any defects are pointed out, it is sufficient. The third and fourth errors assigned are not discussed by appellant's counsel, and are, therefore, under the rule, considered as waived.

The substance of the second paragraph is as follows: That on the 4th day of December, 1894, plaintiff placed in hands of defendant's agent at Indianapolis, Ind., the following message:

Indianapolis, Indiana, December 4th, 1894. To John Bryant, Bloomington, Indiana. Cannot come to-day. Will come to-morrow. Nancy Bryant.

That she paid the usual charge for transmitting like messages. The defendant agreed to transmit the message promptly, but carelessly neglected and wilfully failed to deliver the same to John Bryant, who is her husband. That he lived within four blocks, and less than a mile, of the defendant's office at said Bloomington, Ind. That on

Telegraph Co. v. Bryant.

the 4th of December she was visiting friends at Indianapolis, and had previously informed her husband that she would arrive home in the city of Bloomington on 3.41 P. M. train, December 4, 1894, and her husband was to meet her. That it was impossible for her to return on said train. That she did return next day, December 5th, as stated in the telegram. That on arriving at Bloomington her husband was not at the depot. That his failure to be there was caused by the non-transmission and non-delivery of the telegram by the defendant. That she was greatly annoyed and distressed in body and mind, and greatly embarrassed. That there was no one to meet her or to assist her to her home, several blocks away. That she was obliged to carry a heavy valise and several bundles without assistance. That she endured great humiliation and physical exhaustion and mental suffering and vexation by reason of the bad faith and negligence of defendant. That she made a written demand on defendant for $100.

Direct and proximate damages, resulting from the negli gence of telegraph companies, may be recovered in any event. Indirect, collateral or consequential damages, resulting from such negligence, may also, under some circumstances, be recovered. The expression that the sender of a telegram is entitled to such damages as are the natural and proximate consequences of the company's negligence is frequently found in judicial opinions.

"The cardinal rule," said EARL, C. J. (in a statement of the rule which Thompson, in quoting in his work on the Law of Clectricity, sec. 312, says has never been surpassed), "undoubtedly is that the one party shall recover all the damages which have been occasioned by the breach of the contract by the other party. But this rule is modified in its application by two others. The damages must flow directly and naturally from the breach of the contract, and they must be certain, both in their nature and in respect to the causes from which they proceed.

Telegraph Co. v. Bryant.

Under this latter rule, speculative, contingent and remote damages, which cannot be directly traced to the breach

complained of, are excluded.

The damages must be such as the parties may fairly be supposed to have contemplated when they made the contract.' Leonard v. N. Y., Albany & Buffalo Electro-Magnetic Tel. Co., 41 N. Y. 544.

In Baldwin v. United States Tel. Co., 45 N. Y. 744, speaking for the court, ALLEN, J., says: "Whenever special or extraordinary damages, such as would not naturally or ordinarily follow a breach, have been awarded for non-performance of contracts, whether for the sale or carriage of goods, or for the delivery of messages by telegraph, it has been for the reason that the contracts have been made with reference to peculiar circumstances known to both, and the particular loss has been in the contemplation of both, at the time of making the contract, as a contingency that might follow the non-performance.

When

a special purpose is intended by one party, but is not known to the other, such special purpose will not be taken into account in the assessment of damages for the breach."

Thompson, Electricity, sec. 313, says: "A negative brief statement of this rule is that there can be no recovery for a loss arising from specific circumstances not communicated to the company at the time when the dispatch is delivered to it for transmission, or before it has assumed the undertaking, or before the time has elapsed within which it has become impossible for it to perform it so as to avoid loss."

There is a conflict in the decisions of the courts of the different States as to whether damages may be recovered for mental distress alone, when not connected with physical injury or pecuniary loss. It is the law in this State, however, that damages may be recovered for negligence causing mental distress alone. Reese v. W. U. Tel.

Telegraph Co. v. Bryant.

Co., 123 Ind. 294; W. U. Tel. Co. v. Stratemeier, 6 Ind. App. 125; W. U. Tel. Co. v. Newhouse, 6 Ind. App. 422.

The courts which hold that damages for mental suffering alone may be recovered base the recovery upon the fact that the language of the message gives direct notice to the telegraph company that the message concerns such event or events as that negligence on the part of the company is likely to be followed by mental distress. The telegraph company, then, has the measure of responsibility, and is held liable for special damages for negligence. Crosw. Electricity, sec. 649. The language of the message of appellee, "Cannot come to-day. Will come to-morrow," did not advise the company that a failure to deliver it would be likely to cause mental distress. It does not even request any one to meet her at the station. It does not suggest that humiliation or mental distress would reasonably result from the failure of the person to whom it was addressed to be present upon her arrival at the place of destination.

The physical discomforts of which plaintiff complains, occasioned by her walking and carrying heavy parcels from the railroad station to her home, a distance of four blocks, are damages too remote to permit a recovery. Upon this branch of the case we cite: Stafford v. W. U. Tel. Co., 73 Fed. Rep. 273; McAllen v. W. U. Tel. Co., 70 Tex. 243; W. U. Tel. Co. v. Smith (Tex. Sup.), 13 S. W. Rep. 169.

In Stafford v. W. U. Tel. Co., supra, plaintiff, who was traveling with her sick mother, gave to a telegraph company, at a station on her route, a message addressed to her brother, as follows: "Mother sick. Meet us this evening at D." The company failed to deliver the message. The court held that damages caused to the sender by being compelled to search at night in a strange place for her brother's residence, with exposure producing illness, or caused either to the sender or addressee by the death of