
    Maggie Curtin, Respondent, v. The Western Union Telegraph Company, Appellant.
    
      Delay in delivering a telegram—mental distress nota basis for damages—privity ■of contract.
    
    Mental suffering, occasioned by the delay of a telegraph company in delivering a. message announcing a brother’s death, does not afford any basis for the allowance of pecuniary damages.
    The addressee of a telegram has no contractual relation with the telegraph company.
    Appeal by the defendant, The Western Union Telegraph Company, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 25th day of March, 1896, reversing an order of the General Term of the City Court of the city of New York, which reversed a judgment of the Trial Term of that court in favor of the plaintiff and directed a new trial, and affirming a judgment of said Trial Term.
    This appeal was taken pursuant to an order of the Appellate Term, bearing date the 25th day of May, 1896, granting leave to the defendant to appeal to the Appellate Division of the Supreme Court.
    This suit was brought in the City Court of New York to recover :$2,000 alleged damages resulting from a- delay of four days in ■delivering a telegraphic message sent by the plaintiff’s brother in ■St. Louis, announcing the death of another brother, on the 12th of ■July, 1892, This message was not delivered to the plaintiff in.New York until July 16, 1892.
    
      Rush Taggart, for the appellant.
    
      Lyman W. Redington, for the respondent.
   Barrett, J.:

Several important questions are presented upon this appeal. We need, however, consider but one of them, namely, whether the plaintiff can recover damages for mental distress, causing, as she claims, physical suffering. This question is a crucial one, for if disposed of •adversely to the plaintiff’s contention, her action wholly fails. We think it must be thus disposed of, both upon principle and author "ity. A late -case in our Court of Appeals (Mitchell v. Rochester Railway Co., 151 N. Y. 107) settles the- rule in this State, as ¡applicable to actions for personal injuries occasioned by negligence. .It was there held that although a. miscarriage and consequent ill.ness resulted from fright occasioned by the negligent management of the defendant’s car and horses, yet the plaintiff could not '.recover, for the reason that there w'as.no immediate personal-injury. ‘The horses’ heads in that case, though in close proximity • to the plaintiff’s person, did not actually touch, it. The principle of this ■case- is a fortiori applicable here. The plaintiff’s recovery rests -solely upon the defendant’s negligence in the performance of a duty which it owed to her- as the addressee ” of the telegram. There •was no contractual relation between the parties. The contract was made in. St. Louis, Missouri, with the plaintiff’s brother. He was "the sender of the dispatch, and he there paid for the service. There •certainly could be no recovery for -mental distress occasioned by. a breach of that contract. The only contract for the breach of which -a solatium may be allowed is a contract to marry. Even the latter is but nominally an exception to the rule. Though in form an action "for breach of promise of marriage is upon contract, it essentially ¡sounds in tort. We are aware that in Texas and some other States •of the Union the general rule of damages in actions upon contract lias been extended in the present class of cases, and compensatory damages are allowed' in these States for mental suffering caused by a telegraph company’s breach of its contract to deliver promptly a message intrusted to it. (So Relle v. Western Union T. Co., 55 Tex. 308; Chapman v. Western Union T. Co., 90 Ky. 265; Wadsworth v. Same, 86 Tenn. 695; Reese v. Same, 123 Ind. 294; W. U. T. Co. v. Stratemeier, 32 N. E. Rep. 871; Same v. Henderson, 89 Ala. 510.) The same rule was formerly adopted in the Federal court in Texas (Beaseley v. W. U. T. Co., 39 Fed. Rep. 181), but the contrary doctrine was ultimately held by the Circuit Court of Appeals for that Circuit. (W. U. T. Co. v. Wood, 13 U. S. App. 317.) The reasoning of these southern and western cases concedes that a party is only liable for damages proximately resulting from the breach. They hold, however, that where the telegraphic message indicates upon its face that it is not of a business or commercial character, where in fact it points solely to matters of sentiment or feeling, the parties contemplate compensation for such mental suffering, in case of a breach. Otherwise, they say there could be no redress therefor. The fallacy of this reasoning lies in the premise. The parties contemplate nothing of the kind. ■ The courts that lay down the rule contemplate it for them. The parties lcnowthat a contract is a bargain, for the breach of which the law affords exact pecuniary redress; that such redress is not uncertain; that it implies damages which must be proved, and which are never left even to the reasonable discretion of a court or jury. They thus know when they send a message pointing solely to sentiment or feeling that they are entering into a contract which has no pecuniary value, and that the law affords no redress in damages for the breach of such a contract. This, and this alone, is what they contemplate. As was said in Francis v. W. U. T. Co. (59 N. W. Rep. 1078): “ The law looks only, to the pecuniary value of a contract, and for its breach awards only pecuniary damages.”

In some of the cases above cited the recovery was placed upon the ground of the defendant’s negligent breach of duty. But whether the damages are given for breach of contract or for negligence the rule is the same with regard to mental suffei’ing. The- wrongdoer is liable only for the natural and proximate.consequences of his negligent act. (Lowery v. W. U. T. Co., 60 N. Y. 198.) But an injury to the. feelings, independently and alone, that is, apart from corporal or personal injury, is not in any legitimate or juridical sense a natural and proximate consequence of the negligent act. It may, be the natural and proximate consequence of a physical injury. There it may be interwoven with the corporal injury, which is definite and certain, and it can be measured as a part and parcel of the totality of physical suffering. - The law. looks upon the direct physical injury alone and the proximate consequence of the negligent act, not upon the secondary ailment resulting from the primary mental suffering. An injury to the feelings, independently and alone, is something too vague to enter into the domain of pecuniary damages; too elusive to be left, in assessing compensation therefor, to the discretion of a jury. The extent and intensity of such injuries depend largely upon.in dividual temperament and physical, ' mental and nervous conditions. These conditions are shadowy, unequal and'uncertain in the extreme. When they exist, in "connection with physical injuries, they can be examined and tested. Existing alone and. independently, they are easily simulated and the simulation is hard to detect. There is in fact no genuine congruity between pecuniary loss and isolated mental pain. And if there were, there is no certain means whereby such' mental pain can be fairly and accurately compensated. The true rule upon this- head' is well put in the American and English Encyclopaedia of Law (p. 862, vol. 25),as follows: “A rule that is more consistent with recognized legal principles and that is supported by better authority, is that mental suffering, .alone and unaccompanied by other injury, cannot sustain an action for damages or be considered as an element of damages. Anxiety of mind and mental torture are too refined and too vague in their nature to be the subject of pecuniary compensation in. damages, except where, as in case of personal inj ury, they are so inseparably connected with the physical pain that they cannot be distinguished from it, and are, therefore, considered a part of it.”

¡Many cases in support of this reasonable doctrine are there cited in the notes.

The present case aptly characterizes the looseness which usually attends sympathetic departure fern settled principles. The action was tried upon a stipulation as to the facts. All that- the trial judge knew about the plaintiff’s injuries was embodied in this stipulation which read .as follows :

“ (9) That the plaintiff, after she learned from the said Thomas O’Connor on the 15th day of July of the death of Cornelius Curtin on the 12th of July in St. Louis, and of his burial there on the 14th, became sick in consequence thereof, and because she was not able to be present at his death and burial, and in said sickness expended the sum of twenty dollars for medical services and of five dollars for medicine, and had also expended the sum of §60 for clothing as alleged in said amended complaint, which she otherwise would not have expended if she had known that she could not be present at the funeral of her said brother.”

Upon these facts, the trial judge made this finding :

“XIII. That the plaintiff was damaged to the amount of one hundred "and twenty-five dollars (§125).”

How, it may be asked, did he arrive at this sum ? What, for instance, has become of the clothing? Was it entirely lost to the plaintiff ? The stipulation is silent. As to the illness, it read that she became sick in consequence of her brother’s death and burial, and because she was not able to be present at his death and burial. The defendant was certainly not responsible for her brother’s death nor for her inability to be present at his deathbed. For it appears that the telegram was sent after his death, and indeed announced that fact. Was her illness then caused exclusively by inability to be present at the funeral ? If not, how much of her suffering was due to the fact of death, and how much to the inability to be present at the funeral? • These injuries are logically pertinent. They illustrate the purely arbitrary character of the award. It was small, it is true, but it might just as well have been smaller or larger. What is clear is that it was hopelessly uncertain and devoid of substantial foundation. It was simply — in part at least — a solatium, where a solatium is inadmissible.

We think the General Term of the City Court was fully warranted in granting, as it did, a new trial, because of the trial judge’s error with regard to the damages.

The order of the Appellate Term should, therefore, be reversed, and the order of the General Term of the City Court affirmed, and judgment absolute ordered for the defendant, with costs in this court and in the Appellate Term, and also in the Trial and General Terms of the City Court.

Van Brunt, P. J., Rumsey, O’Brien and Ingraham, JJ., concurred.

Order of Appellate Term reversed ánd order of General Term of the City .Court affirmed, and judgment absolute ordered for defend.ant, with costs in this court and in the Appellate Term, and also in ■.the Trial and General Terms of the City Court.  