Howard v. Western Union Telegraph Co.

Wood, J., (after stating the facts). Damages for mental anguish ‘ ‘ over the real ills, sorrows and griefs of life and such suffering as would reasonably be contemplated to flow from the failure to acquaint the person with the tidings sought to be conveyed may be recovered under the statute.” Kirby’s Dig. § 7947. “There can be no recovery for imaginary situations or conditions of anxiety caused thereby.” Western Union Tel. Co. v. Shenep, 83 Ark. 476-481; Western Union Tel. Co. v. McKenzie, 96 Ark. 218; Western Union Tel. Co. v. McMullin, 98 Ark. 347; Western Union Tel. Co. v. Garlington, 101 Ark. 491. The ground of recovery relied on by appellant is too intangible, visionary and remote to constitute a cause of action for mental anguish under the statute. Appellant testified that she “worried almost to death and walked to town nearly every day to see if she could get a letter or hear anything. ’ ’ This shows mental anguish on account of the illness of her sister and on account of the failure to hear concerning her condition prior to her death. Appellant testifies that she would have communicated with the children had the message been delivered, but her testimony shows that after her sister was buried she had knowledge of her death, but it does not show that she attempted to give any consolation to the children, her nieces, after obtaining such knowledge of her sister’s death. The telegram would only have revealed knowledge of her sister’s death and that knowledge she had through other sources after her sister was buried. So if appellee could have been liable at all it would have been for the mental anguish occasioned during the time intervening the time when the message should have been received and the time when appellant did actually receive knowledge of the death of her sister. The appellant fails to show how long that time was. She fails to show that she would have communicated with her nieces during that time, or that she did actually communicate with them after having knowledge of the death of their, mother, her sister. The burden was on appellant and she fails to show that the failure to receive the telegram deprived her of the privilege of giving counsel and consolation to her nieces, even if this were a ground of recovery under the statute. But, as we have stated, damages on such grounds are not contemplated. In Western Union Tel. Co. v. Garlington, supra, we quoted from Western Union Tel. Co. v. Stratemeier, 32 N. E. 871, as follows: “It is not proper to consider as a substantive element of damages any mental distress arising out of sympathy with the sorrow of others.”. And from Allsop v. Allsop, 5 H. & N. 536, “We ought to be careful not to introduce a new element of damages, recalling to what a large class of actions would apply and what a dangerous use might be made of it. ’ ’ Appellant was a beneficiary of the contract between the. sender of the telegram and appellee. Appellee is entitled to recover nominal damages only for breach of the contract. The judgment will be reversed, but the case will not be remanded for new trial. Judgment will be entered here for appellant for nominal damages and for costs of this appeal. Dilly v. Thomas, 106 Ark. 274; Crutcher v. C., O. & G. Ry. Co., 74 Ark. 358; Glasscock v. Rosengrant, 55 Ark. 382; Buckner v. Ry. Co., 53 Ark. 16.