Beaulieu v. Great Northern Railway Co.

114 N.W. 353, 103 Minn. 47, 1907 Minn. LEXIS 745

• Court: Supreme Court of Minnesota
• Decided: December 27, 1907
• Docket: Nos. 15,382—(48)
• Status: Published

Opinions

BROWN, J.

Defendant interposed a general demurrer to the complaint in this action, and appealed from an order overruling the same.

The complaint alleges, in substance, that plaintiff’s child, aged three and one-half years, died at Cass Lake, and plaintiff -desired that the body should be buried at Ogahmah. The body was accordingly prepared for burial, and delivered to defendant for shipment to that place. The shipment required a transfer of the casket containing the body at Erskine, where the defendant’s road connects with the Soo Line, over which the plaintiff and the corpse were to reach Ogahmah. The complaint further alleges that it was the duty of defendant to put the corpse off its train at said Erskine, to the end that it might be transferred to the Soo train, but that, instead of doing so, its servants and agents wrongfully and unlawfully retained possession thereof, and “negligently, wrongfully, and unlawfully, and with utter disregard to the rights and feelings of this plaintiff,” carried the corpse beyond that station, and to the city of Crookstón, thus delaying the funeral arrangements for twenty four-hours; that, by reason of this delay, the corpse became badly “decayed, mutilated and damaged.” As to the nature and character of the injury and damage to plaintiff, it alleges :

“That said funeral was to take place at White Earth on the 21st day of July, 1906, at three o’clock p. m., as stated, and at said time and place the plaintiff had her priest and mourners in attendance, but, by reason of the premises, said funeral and burial could not take place at said time, causing this plaintiff great annoyance and damage. That, by reason of the said negligent, wrongful, and unlawful acts of said defendant, this plaintiff has been greatly damaged, and has been greatly outraged in'her feelings, and has suffered great distress of mind and great mental pain and anguish, and has become sick and nervous, and will continue to suffer great mental pain and anguish in the future, all to the plaintiff’s damage in the sum of $3,000.”

The complaint charges no wilful or intentional misconduct on defendant’s part, or on the part of its agents, no claim is made for actual damages and the allegations thereof, taken as a whole, show only a failure to transport the corpse of plaintiff’s child to Erskine, leaving it there for reshipment over the other line to the place of destination, in accordance with its contract. The principal question for consideration, therefore, is whether on the facts stated a recovery may be had for the mental suffering endured by plaintiff in consequence of defendant’s neglect.

The question whether mental anguish is a proper element of damage, either in actions in tort or for a breach of contract, has been presented to the courts in numerous cases, and there is much conflict of opinion upon the subject. According to the weight of authority, such damages may be recovered in all actions in tort where the plaintiff has suffered physical injury at the hands of the defendant, whether from malice or mere negligence (6 Current Law, 631, 8 Am. & Eng. Enc. [2d Ed.] 658); also in that class of torts where the plaintiff is subjected to some indignity, as in libel, slander, malicious prosecution, or seduction (8 Am. & Eng. Enc. [2d Ed.] 668; 13 Cyc. 44); and, again, in those wilful wrongs where some legal right has been invaded, though no physical injury is inflicted or character or reputation assailed (Lesch v. Great Northern Ry. Co., 97 Minn. 503, 106 N. W. 955; Purcell v. St. Paul City Ry. Co., 48 Minn. 134, 50 N. W. 1034, 16 L. R. A. 203; Sanderson v. Northern Pac. Ry. Co., 88 Minn. 162, 92 N. W. 542, 60 L. R. A. 403, 97 Am. St. 509).

But such damages are not recoverable in all actions in tort. Broadly stated, their allowance is limited to actions where the plaintiff has received some injury to his person, or some legal right has been invaded of a nature naturally to cause grief and distress of mind. None of the cases, as we read them, go beyond these limits. They are not recoverable in actions for death by the wrongful act of another. Hutchins v. St. Paul, M. & M. Ry. Co., 44 Minn. 5, 46 N. W. 79; Blake v. Midland Ry. Co., 18 Q. B. 93; Donaldson v. Mississippi, 18 Iowa, 280, 87 Am. Dec. 391; Munro v. Pacific Coast, 84 , 24 Pac. 303, 18 Am. St. 248. Nor in actions for libeling the dead. Bradt v. New Nonpareil, 108 Iowa, 449, 79 N. W. 123, 45 L. R. A, 681; 25 Cyc. 426. Nor in actions for injuries to a minor child. Sperier v. Ott, 116 La. 1087, 41 South. 323, 7 L. R. A. (N. S.) 518, 114 Am. St. 587, and cases cited in note; Flemington v. Smithers, 2. Car. & P. 292; Bube v. Birmingham, 140 Ala. 276, 37 South. 285, 103 Am. St. 33; Black v. Carrollton, 10 La. An. 33, 63 Am. Dec. 586; County Commrs. v. Hamilton, 60 Md. 340, 45 Am. 739; Little Rock v. Barker, 33 Ark. 350, 34 Am. 44. In State v. Baltimore, 24 Md. 84, 87 Am. Dec. 600, an action by a mother for the wrongful death of her son in which she claimed the right to recover for mental anguish in addition to compensatory damages, the court said:

“According to the appellant’s theory, the mother and son are supposed to live on together to an indefinite age; the one craving sympathy and support, the other rendering reverence, obedience, and protection. Such pictures of filial piety are inestimable moral examples, beautiful to contemplate; but the law has no standard by which to measure their loss.”

Loss of support or loss of services is the gist of actions last referred to and compensatory damages only are recoverable, and it is immaterial whether the act complained of was wilful and malicious, or merely the result of negligence. There may be other exceptions to the general rule mentioned, as applied to actions ex delicto, but we are not concerned with them at this time.

It is also a rule of general application that mental anguish is not a proper element of damage in actions for breach of contract, though there is a class of wrongs arising out of contractual relations in which this element is permitted to enter. Illustrations of this are found in wilful and unlawful injuries to passengers upon railroad trains. There is in such cases a contract by the railroad company to carry safely the passenger to his destination, and an implied legal obligation to protect him within certain limits while the relation of passenger and carrier exists, and the courts declare that wilful or malicious violation of that duty constitutes an independent tort, for which recovery may be had for the indignity to which the passenger is subjected. Mykleby v. Chicago, St. P. M. & O. Ry. Co., 39 Minn. 54, 38 N. W. 763; Brown v. Chicago, 54 Wis. 342, 11 N. W. 356, , 41 Am. 41; Walsh v. Chicago, 42 Wis. 23, 24 Am. 376; Craker v. Chicago, 36 Wis. 657, 17 Am. 504.

An exception is also made of actions for breach of promise to marry. But such actions in all essential respects partake of the nature of torts, and are so treated by the courts. Johnson v. Travis, 33 Minn. 231, 22 N. W. 624; Thorn v. Knapp, 42 N. Y. 474, 1 Am. 561; Smith v. Woodfine, 87 E. C. L. 660; Coil v. Wallace, 24 N. J. E. 291; 5 Cyc. 1021.

The rule that damages of this nature may be recovered in an action for a breach of contract properly to send and deliver a telegram has become the settled law in a number of the states, following the lead of Texas. But a majority of the courts do not concur in that doctrine. 63 Cent. Law J. 340; 1 Am. & Eng. Ann. Cas. 355, note. This court declined to follow it in Francis v. Western Union Tel. Co., 58 Minn. 252, 59 N. W. 1078, 25 L. R. A. 406, 49 Am. St. 507, where the rule laid down in the leading English case of Hadley v. Baxendale, 9 Exch. 341, was approved and followed. But it would be unprofitable to prolong this opinion by an extended discussion of the general subject.

Summarizing, it may be said that mental anguish is a proper element of damages in all actions sounding in tort, where the plaintiff has received some physical injury, or his legal rights have been so wilfully invaded as naturally to cause mental distress. It is an element to be considered in actions for a breach of contract in exceptional cases only; the principal exception being the telegram cases already referred to. And we pass to a consideration of the question whether this case comes within any of the exceptions.

In respect to the wrongful interference with the rights of preservation and burial of the dead, the courts are again somewhat at variance. Though the common law recognizes no property in the bodies of deceased persons (Weld v. Walker, 130 Mass. 422, 39 Am. 465; Reg. v. Sharpe, 7 Cox, C. C. 214), a right of possession and preservation for burial purposes is conceded by nearly all the authorities,, which the law will protect (Regina v. Fox, 2 Q. B. 246; Williams v. Williams, 20 Ch. Div. 659; Larson v. Chase, 47 Minn. 307, 50 N. W. 238, 14 L. R. A. 85, 28 Am. St. 370; 3 Am. & Eng. Ann. Cas. 132, note). And any wilful or wrongful interference with that. right by the intentional mutilation or secretion of the body subjects the wrongdoer to an action on the case, in the determination of which mental anguish is a proper element for consideration in assessing damages. The law on the subject, so far as it relates to actions in tort, is completely summed up by Mr. Justice Mitchell in Larson v. Chase, supra. It was said in that case:

“But this whole subject is only obscured and confused by discussing the question whether a corpse is property in the ordinary commercial sense, or whether it has any value as an article of traffic. The important fact is that the custodian of it has a legal right to its possession for the purposes of preservation and burial, and that any interference with that right by mutilating or otherwise disturbing the body is an actionable wrong.”

That has become one of the leading cases on the subject in this country, and has been cited with approval and followed and applied in other states. Burney v. Children’s Hospital, 169 Mass. 57, 58, 47 N. E. 401, 38 L. R. A. 413, 61 Am. St. 273; Koerber v. Patek, 123 Wis. 453, 102 N. W. 40, 68 L. R. A. 956; Foley v. Phelps (Sup.) 37 N. Y. Supp. 471; Hackett v. Hackett, 18 R. I. 155, 26 Atl. 42, 19 L. R. A. 558, 49 Am. St. 762; Louisville v. Wilson, 123 Ga. 62, 51 S. E. 24. The contrary doctrine is upheld by plausible argument in Long v. Chicago, 15 Okl. 512, 86 Pac. 289, 6 L. R. A. (N. S.) 883, in which the cases holding to the view that no action will lie in such cases, either in tori or for breach of contract, are cited.

The rule laid down in the Larson case expresses the modern view of the question, and extends a remedy where otherwise none would exist. There being no property in dead bodies, and the wrong complained of being only the invasion of an intangible legal right, no actual damages for the wrongful mutilation of the body can be recovered, and the courts award solatium for the bereavement of the next of kin as the only appropriate relief. Without the element of mental distress, the action would be impotent of results and of no significance or value as a remedy for the tortious violation of the legal right of possession and preservation. 7 Current Law, 954. But that rule can on principle have no application to actions for breach of contract. A breach of contract involves only such consequences as directly result therefrom and were within the contemplation of the parties when the contract was made, and which may be measured and determined by some definite rule or standard of compensation.

While the rule of compensation to the injured party controls the measure of damages both in actions ex contractu and ex delicto, the elements proper to be considered are in some respects widely different in the two classes of cases. In actions sounding in tort, exemplary or punitive damages are as a general rule awarded, in the discretion of the jury. McCarthy v. Niskern, 22 Minn. 90; Peck v. Small, 35 Minn. 465, 29 N. W. 69; 12 Am. & Eng. Enc. (2d Ed.) 13. But they are compensatory in theory only. Such damages are not- recoverable in actions for breach of contract, except, perhaps, in those exceptional cases where the breach amounts to an independent wilful tort, in which event they may be recovered under proper allegations of malice, wantonness, or oppression. 12 Am. & Eng. Enc. (2d Ed.) 20; North v. Johnson, 58 Minn. 242, 59 N. W. 1012. They cannot be recovered in actions involving ordinary negligence, where no physical injury results. Louisville v. Shanks, 94 Ind. 598; Chicago v. Scurr, 59 Miss. 456, 42 Am. 373; Gibney v. Lewis, 68 Conn. 392, 36 Atl. 799; Milwaukee & St. P. Ry. Co. v. Arms, 91 U. S. 489, 23 L. Ed. 374; City of Chicago v. Martin, 49 Ill. 241, 95 Am. Dec. 590. Exemplary damages are incapable of definite ascertainment; and, though classed theoretically as compensatory, they are, in fact, imposed in the nature of punishment for the wrong complained of, and the amount rests in the sound judgment of the jury. Mental grief from a pecuniary standpoint is just as incapable of definite calculation as exemplary damages. The law furnishes no standard by which it may be valued, the amount awarded in any particular case must necessarily rest in the discretion of the jury, and recovery therefor should on principle be confined to those cases where punitive damages are allowed. In Texas, Kentucky, North Carolina, and perhaps other states, where the so-called “Texas doctrine” in the telegraph cases has met with approval, it is held that in an action for breach of contract concerning the burial of the dead mental anguish may properly be considered by the jury in the assessment of damages to the aggrieved party. Louisville v. Hull, 113 Ky. 561, 68 S. W. 433, 57 L. R. A. 771; Hale v. Bonner, 82 Tex. 33, 17 S. W. 605, 14 L. R. A. 336, 27 Am. St. 850; Renihan v. Wright, 125 Ind. , 25 N. E. 822, 9. L. R. A. 514, 21 Am. St. 170. Those cases follow logically the Texas rule in the telegraph cases. But, wherever the Texas rule has been repudiated as an innovation upon elementary principles of the common law, the courts have, in our view, consistently reached the opposite conclusion. The cases are collected and the subject discussed in 5 Columbia Law Rev. 179, and in 1 Am. & Eng. Ann. Cas. 355.

The extreme to which this rule leads is illustrated in two North Carolina cases. A father sent a telegram to a friend at a distant point stating that his daughter, sixteen years of age, was on her way to visit at his home, and requesting the friend to meet her at the train, which arrived about twelve o’clock at night. Through the negligence of the company’s agent, the message was not delivered, and no one met the daughter upon her arrival at the station. The conductor of the train placed her in charge of an employee of the railroad company, who procured a carriage, and she was taken to the friend’s house, safe and sound, except for her mental anguish and worry. She brought an action for damages against the telegraph company, alleging as ground of recovery her mental distress. The father also sued for mental anguish which he suffered when told the next day of the failure to deliver the telegram. The court sustained the right of action in each case. Green v. Telegraph Co., 136 N. C. 489, 49 S. E. 165, 6 L. R. A. 985, 103 Am. St. 955; Green v. Telegraph Co., 136 N. C. 506, 49 S. E. 171, These cases are not open to criticism, except to the extent the doctrine upon which they are founded is subject to adverse comment. They follow logically and consistently the “Texas doctrine” and emphasize, in our opinion, the reductio ad absurdum of that rule.

Efforts have been made to induce the courts of some jurisdictions to apply that doctrine in various forms of action for breach of contract. In Eller v. Carolina, 140 N. C. 140, 52 S. E. 305, 3 L. R. A. (N. S.) 225, damages were sought for mental anguish for the breach of a contract to furnish a wedding trousseau, by reason of which plaintiff was subjected to mortification, humiliation, and mental distress. The court rejected the claim. Damages were sought in Kansas City v. Dalton, 65 Kan. 661, 70 Pac. 645, for negligently carrying plaintiff by the station of his destination, but the court held that distress of mind was not subject of compensation for a breach of contract of that nature. See also Wilcox v. Richmond & D. Co., 52 Fed. 264, 3 C. C. A. 73, 17 L. R. A. 804; Hot Springs v. Deloney, 65 Ark. 177, 45 S. W. 351, 67 Am. St. 913.

But, without further citation of authorities or discussion of the subject from the standpoint of decisions of other courts, we. turn to our own decisions, and find that the question has been definitely settled by this court in Francis v. Western Union Tel. Co., 58 Minn. 252, 59 N. W. 1078, 25. L. R. A. 406, 49 Am. St. 507, wherein we declined to follow the Texas rule. The question was, fully considered in that case, and the conclusion reached that in actions for breach of contract to transmit and deliver a telegram mental anguish occasioned by the breach furnished no proper basis for the recovery of damages. The difference between actions in tort, and those for breach of contract is pointed out with clearness by Mr. Justice Mitchell, who wrote the opinion.. The rule therein announced and applied has the sanction o'f the elementary principles of the law of dámages, and is approved by a majority of the courts of this country. In addition to the cases heretofore referred to, we cite Chapman v. Western Union, 88 Ga. 763, 15 S. E. 901, 17 L. R. A. 430, 30 Am. St. 183; Western Union v. Rogers, 68 Miss. 748, 9 South. 823, 13 L. R. A. 859, 24 Am. St. 300; Connell v. Western Union, 116 Mo. 34, 22 S, W. 345, 20 L. R. A. 172, 38 Am. St. 575. “The law looks,” Judge Mitchell remarked, “only to the pecuniary value of a contract, -and for its breach awards only pecuniary damages.” And the court . applied the general .rule that in such actions damages', must be limited to the actual pecuniary loss naturally and necessarily flowing from the breach.

The logic of that decision applies to the case at bar. The complaint before us charges, at most, a negligent failure to perform the contract, for the breach of which damages for mental anguish are demanded, and the case is not brought within those wherein such damages are awarded for the malicious and wanton breach, to which we have adverted. 13 Cyc. 44—45. Of this class Lindh v. Great Northern Ry. Co., 99 Minn. 408, 109 N. W. 823, 7 L. R. A. (N, S.) 1018, is an example. In that case we did not intend to be understood as holding that mental anguish was a proper element of damages, in an action for tiré" failure of a common carrier safely to transport a corpse to its destination in accordance with its contract. The injuries there complained of were treated as a wilful tort distinct from the contract, and the conclusion reached is in harmony with Larson v. Chase, 47 Minn. 307, 50 N. W. 238, 14 L. R. A. 85, 28 Am. St. 370. If damages for mental anguish may not be recovered in actions wholly in tort, where the parent suffers untold grief at the disfigurement of his minor child, or because of his death by the wrongful act of another, or in actions for libeling the dead, as indicated by the authorities cited, by what course of reasoning, from the view point of legal principles uninfluenced by feelings of sentiment or resentment, can it be held that they may be recovered, in an action like that at bar, for the .mere negligence of a railroad company in carrying a corpse beyond the station of its destination, resulting in no injury to the body, save such as arises fronFits natural tendency ’to decomposition? We discover none.

It is urged that damages of this character in actions upon contract, as well as in tort, find support in the declaration of the fundamental law that there shall be a certain remedy for all wrongs, and that, if they be denied in breach of contract actions, the guaranteed remedy is denied. This is plausible, but not persuasive. The maxim, “ubi jus ibi remedium,” has, like other principles of the law, its limitations. The guaranty of a remedy for all wrongs has more particular reference to wrongs of a substantial nature, where property or character is affected, rather than to those founded wholly in sentiment. It protects property and property rights, persons, domestic relations, character, and reputation, but not necessarily grief and mental distress occasioned by some unintentional act of wrongdoing. ! As remarked by the supreme court of Indiana in Western Union v. Ferguson, 157 Ind. 64, 69, 60 N. E. 674, 1080, 54 L. R. A. 846, the maxim that for every wrong there should be a remedy, as applied to actions for • damages for breach of contract, was intended by the “fathers of the common law” to include such damages as the “courts dealing practically with the practical affairs of life, can find to be certain and measurable from evidence the source of which is open to both parties, and the nature not transcendental.” Other instances where the common law has not afforded a remedy in apparently meritorious cases are numerous, chief among which is the remedy for death by wrongful act first given in England by Lord Campbell's act, and followed by statutory enactments in this country. Without a statute providing a remedy in that class of wrongs, no action could be maintained by the relatives of the deceased for compensatory or other damages. So, in cases like that at bar, the remedy should come from legislation, and not by judicial decisions out of harmony with established principles of the law. Western Union v. Ferguson, supra.

' For these reasons, we conclude that plaintiff is not entitled to recover for her mental anguish. Her complaint, however, charges a breach of contract, and she would be entitled at least to nominal damages, and the court below properly overruled the demurrer.

Order affirmed.