
    McBRIDE v. SUNSET TELEPHONE CO.
    (Circuit Court, D. Washington, W. D.
    August, 1899.)
    1. Damages — Breach of Contract — Mental Suffering.
    Mental anguish and distress alone cannot be made the basis for a recovery of damages for a breach of contract, 
    
    
      2, Telephone Companies — Failure to Deliver Message — Measure of Dam-AGibiS*
    A complaint in an action against a telephone company, alleging that by reason of the failure of defendant to deliver a message sent to plaint iff by his son as his agent, and plaintiff's consequent failure to respond to such message!, as lie would have done had he received it, his wife and children became estranged from him, and his family was broken up, states no ground for the recovery of more than nominal damages, as plaintiff's domestic trouble cannot be presumed to have been the direct or proximate; result of the failure to deliver the message, and, if it were, it cannot be eonsidereel as a natural result of a. breach of the contract which was within the contemplation of the parties.
    Action for damages for the negligent failure on the part of the defendant to transmit a message sent to the plaintiff by his son, who, in sending (lie message, was acting in the interest of the plaintiff and as his agent, the plaintiff being at the time absent from borne, and the message was to inform him of the serious illness of liis daughter, and to request a remittance of money of which the family were in need. Th$ complaint alleges that in consequence of his not receiving the message the plaintiff remained ignorant of the illness of his child until after her death, and because of his apparent neglc-ct his wife and children have become estranged, and his home has been broken up, and be has suffered great mental anguish and distress. Heard on demurrer to (lie complaint, which, by agreement, was argued and submitted for the purpose of testing the question as to the proper measure of damages. Demurrer sustained for the reason that the defendant is liable only for nominal damages and costs.
    Frank S. Carroll and Frank Allyn, for plaintiff.
    Struve, Allen, Hughes & McMicken, for defendant.
    
      
      
         As to mental suffering as an element of damages, see notes to Railway Co. v. Caulfield, 11 C. C. A. 571; Telegraph Co. v. Coggin, 15 C. C. A. 250, and Telegraph Co. v. Morris, 28 C. C. A. 62.
    
   HARFORD, District Judge

(after stating the facts as above). The complaint certainly states a cause of action, and shows the plaintiff to be entitled to recover at least nominal damages and costs, but by agreement of tbe parties tbe case is to be considered with respect to tbe rule of damages. In tbeir brief, counsel for tbe plaintiff say: “Tbe doctrine that one may recover for mental anguish alone is, in our opinion, taking advanced grounds in judicial decisions and in tbe opinions and minds of tbe best lawyers.” It is the business, however, of courts in adjudicating tbe rights of individuals, to apply tbe rules of law as they exist, and not to take advanced grounds, or to depart from fixed principles. Whenever courts assume legislative functions by attempting to give relief in a hard case, when, in order to do so, it is necessary to overstep tbe limit's of judicial power, more barm is likely to result than benefit. Tbe only cases in which courts may legitimately take advanced grounds is when new conditions present new problems to be solved, but even then tbe object should be to merely accomplish tbe adjustment of individual rights affected by new conditions consistently with tbe existing laws, and leave to tbe legislature the task of changing, amending, or creating laws. Tbe authorities cited upon tbe argument leave no doubt in my mind that tbe amount of damages to be awarded for tbe breach of a contract cannot, consistently with legal principles governing tbe assessment of damages, be increased on account of mental distress. If mental distress is to be compensated, tbe amount of damages should correspond with tbe degree of suffering. Tbe degree of suffering will depend rather more upon tbe temperament and physical condition of the injured party than upon tbe degree of culpability 'of tbe wrongdoer. To render fair compensation for the mental anguish of a person of refined ideas and sensitive organization, or to a person whose suffering may have been greatly augmented by nervous debility at tbe time, would subject tbe defendant to consequences quite as severe as the rule of vindictive damages applicable in cases of malicious torts, and be would have to pay for bis adversary’s infirmity, rather than for the natural or probable effect of bis own wrongful act or neglect. Tbe plaintiff in this case, however, does not ask for damages alone upon tbe ground of mental anguish, but claims that in consequence of tbe wrongful failure on tbe part of tbe defendant to properly direct and transmit tbe message sent by bis son to inform him of tbe serious illness of bis daughter, and requesting him to remit money necessary for tbe use of his family in tbe situation in which they were placed ■by reason of bis absence and tbe fatal illness of his daughter, be was prevented from making such a response to tbe message as he would have made if be bad received it; and, not receiving such a response to tbe message as they bad a right to expect, tbe members of bis family were so shocked and outraged in tbeir feelings that they have ceased to regard him with affection or respect, and they have since refused to accept any explanation of bis conduct, and have separated from him, so that bis relations with bis wife and children have been severed. Admitting that the law will award damages as compensation for such a loss as tbe plaintiff alleges that be has> sustained when caused by tbe meddlesome or malicious act -of another in purposely making false representations for tbe purpose of alienating the affections of a wife or husband or child, still the claim made in this case does not rest upon similar ground. The gravamen of this case is a, mere breach of a contract through the negligence of the defendant’s servants and employés, involving no malice or purpose on the part of the defendant to injure the plaintiff. The failure to transmit the message is not the direct or approximate (‘ause of the disruption of the plaintiff’s family. If he is a kind and dutiful husband and father, the refusal on the part of his wife and children to accept a reasonable explanation of his apparent neglect proves conclusively such perversity and unlovely dispositions in them that the distress and humiliation and loss which the plaintiff alleges he has suffered must he attributed to their unreasonable behavior, rather than to the defendant’s breach of its contract. It is true that .the plaintiff charges that all the unpleasantness in his domestic affairs is due to the breach of the contract, but this is a mere conclusion, and not controlling. The facts set forth in the complaint must be considered, and it is for the court to determine whether the facts support the conclusion. At any rate, in awarding damages for a broken contract, the party in fault can only be held liable for such natural consequences of a breach of contract as may be fairly inferred were in contemplation of the parties at the time of entering into the contract. A party undertaking' to carry or transmit a message under the circumstances described in this complaint, if he stopped to consider what might be; the consequences of his failure to dediver the message, would not be apprised, nor have any reason to infer, that his neglect would be visited upon the sendee of the message, and be made; the; ground for a permanent separation from him by his wife* and children. I hold that no more; than nominal damages and e:osts can he; recovered in this case, bee:anse mental anguish alone affords no basis for the computation of damage's; and the breaking of the contract cannot he presumed to he the direct, or approximate cause of the domestic trouble alleged in the complaint, and, if it were so, the trouble cannot be presumed to have been a natural conseepience of the breaking of the contract which the parties could have had in contemplation at the time when it was made. .Demurrer sustained, but, unless the pleadings shall be amended, the judgment to be rendered will be' in favor of the plaintiff for the sum of one dollar and costs.  