
    WESTERN UNION TELEGRAPH CO. v. CHAMBERLAIN.
    (No. 5357.)
    (Court of Civil Appeals of Texas. Austin.
    May 13, 1914.
    Rehearing Denied June 17, 1914.)
    1. Damages (§ 117) — Breach of Contract— Measure of Damages.
    Damages are recoverable for a breach of contract, and the proper measure is pecuniary compensation for the injury suffered.
    [Ed. Note. — For other, cases, see Damages, Cent. Dig. §§ 285, 286, 2^8; Dec. Dig. § 117.]
    2. Telegraphs and Telephones (§ 68) — Delay in Transmission of Messages — Damages.
    In case of delay or negligence in the transmission of a telegram, damages for resulting mental anguish may, contrary to the rule of the common law, be recovered.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 69, 70; Dec. Dig. § 68.]
    3.Telegraphs and Telephones (§ 68) — Delay in Transmission of Messages — “Mental Anguish.”
    Mental anguish is that keen and poignant suffering which results from some great grief; and hence mere disappointment because plaintiff’s grandchildren were prevented from visiting him on account of delay in the transmission of a telegram was not mental anguish for which damages might be recovered.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 69, 70; Dee. Dig. & 68.]
    For other definitions, see Words and Phrases, vol. 5, p. 4475.]
    4. Telegraphs and Telephones (§ 68)— Actions For Delay in Transmission oe Messages.
    For the sender of a telegram to recover damages for mental anguish resulting from delay in its transmission, the facts must have been such that the sender would naturally suffer mental anguish in case of delay, and they must have been known to the agent of the telegraph company.
    [Ed. Note. — For other cases,, see Telegraphs and Telephones, Cent. Dig. §§ 69, 70; Dec. Dig. & 68.]
    Appeal from Falls County Court; W. E. Hunnicutt, Judge.
    Action by A. G. Chamberlain against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Geo. H. Fearons, of New York City, and Spell & Sanford and W. W. Ñaman, all of Waco, for appellant. Tom Connally, of Marlin, for appellee.
    
      
       For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series.& Rep’r Indexes
    
   JENKINS, J.

This suit was brought to-recover damages for mental suffering alleged to have been occasioned by the negligent failure of appellant to promptly deliver the telegram hereinafter set out. From a judgment in favor of appellee, appellant appeals and assigns error upon the action of the court in overruling its general demurrer to appel-lee’s petition.

Appellee alleged: That on June 3, 1912, he resided near Reagan, in Falls county, Tex., and that on- that day he caused to be ' delivered to appellant’s agent at said town of Reagan, for transmission to A. G. Johnson, charges prepaid, at 1136 Wall street, Los Angeles, Cal., the following telegram:

“Bring children. Will pay fare. “[Signed] A. J. Chamberlain.”

That his daughter was the wife of said Johnson, and was then contemplating a visit to appellee. That the children mentioned in said message were the children of his said daughter, and the grandchildren of appellee. That his daughter was not financially able to pay the railroad fare of said children, and would have brought them had said telegram been promptly delivered, but not otherwise. That an affectionate regard existed between appellee and his said grandchildren, all of which facts were explained and fully known to appellant’s agent at Reagan, when he received said telegram for transmission. That appellant negligently failed to deliver said telegram until the 8th day of June, 1912, in consequence of which appellee’s daughter left Los Angeles on her visit to appellee on June 6, 1912, without bringing said children with her. That appellee, on account of such failure to deliver said telegram, was deprived of the pleasure of seeing said children and enjoying their society, by reason of which he “suffered great mental anguish and pain.”

It is a general principle of law that damages are recoverable for breach of contract, and that the proper measure of damages is pecuniary compensation for the injury suffered. Mental suffering, in a proper case, has always been recognized as an injury for which damages are recoverable. The common law, however, from motives of public policy, adopted certain standards by which damages for breach of contract were to be measured, which excluded mental suffering. For instance, the measure of damages for failure to pay money is the lawful interest on same; for failure to deliver personal property contracted to be sold, the difference between the market price and the price agreed to be' paid, etc. The reason for this was that, in the absence of such standard, the uncertainty as to the amount of damages that might be recovered would open up an unlimited field of litigation, to the discouragement of business and the annoyance of the citizens. For these reasons, it became a general rule of the common law that damages for purely mental suffering, unaccompanied with bodily pain or willful or malicious wrong, were not recoverable; and hence that such damages were not recoverable, where they arose solely from breach of contract. Mental suffering was not excluded for the reason that it might not, in some instances, be just as acute and intense from the breach of a contract as when induced by traumatic injury. But by reason of the ease with which it might be simulated, and the difficulty of disproving it on account of the intangible nature of mind, and the varying degrees of temperament, it was thought best that this field of litigation be entirely closed.

The introduction of telegraphy, and the peculiar duties of telegraph companies as public service corporations, was thought by the Supreme Court of Texas, and as the writer thinks justly so, to demand a modification of the ancient rule that damages for mental suffering were not recoverable for breach of contract unaccompanied by bodily pain, or the element of willful wrong. So Relle v. Telegraph Co., 55 Tex. 308, 40 Am. Rep. 805. This doctrine has been followed in several other jurisdictions, though a majority of the states and the Federal courts still apply the old rule to telegraph cases.

It is the settled doctrine of this state that damages are recoverable for mental suffering of a certain character, occasioned by the failure to promptly transmit and deliver a telegram under certain circumstances. In addition to cases where the telegram related to the sickness or death of a near relative, or where physical suffering resulted, this doctrine has been applied in this state in the following cases: Telegraph Co. v. Procter, 6 Tex. Civ. App. 300, 25 S. W. 813; Telegraph Co. v. Norton, 62 S. W. 1081; Rich v. Telegraph Co., 110 S. W. 95; Telegraph Co. v. Simpson, 73 Tex. 422, 11 S. W. 386. Application of this doctrine has been denied in the following cases: Telegraph Co. v. Arnold, 96 Tex. 494-496, 73 S. W. 1043; Telegraph Co. v. Luck, 91 Tex. 181, 41 S. W. 469, 66 Am. St. Rep. 869; De Voegler v. Telegraph Co., 10 Tex. Civ. App. 229, 30 S. W. 1107; Ricketts v. Telegraph Co., 10 Tex. Civ. App. 226, 30 S. W. 1105; Telegraph Co. v. Bell, 61 S. W. 942; Telegraph Co. v. Partlow, 30 Tex. Civ. App. 599, 71 S. W. 584; Telegraph Co. v. Edmonson, 91 Tex. 206, 42 S. W. 550; Morrison v. Telegraph Co., 24 Tex. Civ. App. 347, 59 S. W. 1127.

The distinction in principle, as applied to the two lines of cases above cited, may not, in some of them, be very clear, but running through them all it may be safely said these two elements are announced or recognized as essential to recovery, viz.: The suffering must be of that character denominated mental anguish, and the circumstances must be such that the company could reasonably have anticipated that such suffering would probably result Irofa the failure to promptly transmit and deliver the telegram.

What is mental anguish? The Supreme Court of North Carolina in Hancock v. Telegraph Co., 137 N. C. 497, 49 S. E. 952, 69 L. R. A. 403, said:

“There is a very material difference between the significance of those words (‘disappointment’ and ‘regret’) and that keen and poignant mental suffering signified by the words ‘mental anguish.’ * * * The language used in nearly •all the eases in this and other states where such damages are allowed is ‘grief and mental anguish.’ * * * The lexicographers define anguish to be ‘intense pain of body or mind.’ It is derived from the Latin word ‘anguis,’ a snake, referring to the writhing and twisting of the animal body when in great pain.”

This definition of “mental anguish” might well have been deduced from the general tenor of Texas cases on this subject, and is in accord with the decisions in other states. We quote from 37 Cyc. p. 1780, as follows:

“It is well settled, however, that damages cannot be recovered on this ground for every mental disturbance or injury to the feelings, and that to constitute mental anguish there must be something , more than worry, vexation, or disappointment or anger or resentment.”

When the telegram relates to the sickness or death of a near relative, the failure to transmit and deliver it promptly may result in depriving the party to whom it is sent of the opportunity of ever again seeing the loved one alive, or of looking upon the face of the beloved dead, or of assisting in the sad rites of sepulture. Common experience tells us that these results are calculated to fill the heart with poignant grief and sadden the life of the sufferer, and such results ought to be anticipated from a general knowledge, of .thei human heart with its human affections. Not so, however, where the allegations, as in the instant case, show only a temporary disappointment calculated to produce regret, and perhaps resentment, toward the telegraph company for its inexcusable negligence. It is not alleged that the contemplated visit of the grandchildren was appellee’s last opportunity to see them. For aught that appears to the contrary, they may have been of sufficient age to have come by themselves, had appellee sent them money with which to pay for their transportation, upon hearing that they had not come with their mother; or appellee might have visited them at an expense not exceeding that which he would have incurred had the telegram been promptly delivered.

In order for appellee to recover, not only must such facts be alleged as would reasonably indicate that appellee would suffer mental anguish by reason of the failure to deliver the telegram, but it must also be alleged that appellant’s agent was advised of such facts, otherwise he would not be required to anticipate such result.

For the reason that it does not appear from the allegations of the petition that the telegram was sent under such circumstances as reasonably required appellant to anticipate that appellee would suffer mental anguish, if such telegram was not promptly delivered, the general demurrer should have been sustained, and, for the error of the trial court in overruling the same, this cause is reversed and remanded.

Reversed and remanded.  