Dissenting Opinion.
Jordan, J.I can not concur in the majority opinion in this case, and will endeavor briefly to assign the reasons which constrain me to dissent. The real question presented in this appeal is: Are damages which are caused solely by mental anguish suffered by reason of the neglect of a telegraph company to transmit a message to- .the addressee recoverable in an action by the latter against such company for its neglect ? In my opinion this question should be answered in the affirmative. A negative answer by this court necessarily results in disturbing what has been considered and adhered to as the settled law in this State for a period of over twelve years. The rule declared and enforced in Reese v. Western Union Tel. Co., 123 Ind. 294, which was decided in 1889, in my judgment is a salutary one. It is true that the rule in question has been denied by the higher courts of several of our sister states, while, upon the other hand, it has been repeatedly affirmed by others. The following cases may be said to answer the question propounded in this appeal in the affirmative: SoRelle v. Western Union Tel. Co., 55 Tex. 308, 40 Am. Rep. 805; Stuart v. Western Union Tel. Co., 66 Tex. 580, 18 S. W. 351, 59 Am. Rep, 623; Gulf, etc., R. Co. v. Wilson, 69 Tex. 739, 7 S. W. 653; Western Union Tel. Co. v. Broesche, 72 Tex. 654, 10 S. W. 734, 13 Am. St. 843; Western Union Tel. Co. v. Simpson, 73 Tex. 422, 11 S. W. 385; Western Union Tel. Co. v. Adams, 75 Tex. 531, 12 S. W. 857, 6 L. R. A. 844, 16 Am. St. 920; Womack v. Western Union Tel. Co. (Tex. Civ. App.), 22 S. W. 417; Western Union Tel. Co. v. Carter, 2 Tex. Civ. App. 624, 21 S. W. 688; Wadsworth v. *79Western Union Tel. Co., 86 Tenn. 695, 8 S. W. 574, 6 Am. St. 864; Western Union Tel. Co. v. Robinson, 97 Tenn. 638, 37 S. W. 545; Newport News, etc., R. Co. v. Griffin, 92 Tenn. 694, 22 S. W. 737; Western Union Tel. Co. v. Henderson, 89 Ala. 510, 7 South. 419, 18 Am. St. 148; Thompson v. Western Union Tel. Co., 106 N. C. 549, 11 S. E. 269; Young v. Western Union Tel. Co., 107 N. C. 370, 11 S. E. 1044, 9 L. R. A. 669, 22 Am. St. 883; Thompson v. Western Union Tel. Co., 107 N. C. 449, 12 S. E. 427; Chapman v. Western Union Tel. Co., 90 Ky. 265, 13 S. W. 880; Western Union Tel. Co. v. Stephens, 2 Tex. Civ. App. 129, 21 S. W. 148; Logan v. Western Union Tel. Co., 84 Ill. 468; Mentzer v. Western Union Tel. Co., 93 Iowa 752, 62 N. W. 1, 28 L. R. A. 72.
The following text-writers also assert and maintain that such damages may he recovered. Shearm. & Redf. on Neg. (5th ed.), §756; Thompson Law of Electricity, §379; 3 Sutherland on Damages (2nd ed.), §§975-980, inclusive; 2 Sedgwick on Damages (8th ed.), §894.
Prior to the decision in the Reese case, the question here involved was an open one in this jurisdiction, and I am not convinced that the court, for the reasons expressed in the majority opinion, should at this late day depart from the doctrine asserted and enforced in that case. Nothing is to he gained by courts of last resort in overruling their decisions, especially when the same have stood as the settled law for a long period of time, unless it is evident that they are radically wrong or operate unjustly. The Reese case, supra, as we have shown, is well supported by the decisions of other courts and hy eminént text-writers, and a settled rule of law of this State should not be abrogated simply because there may be a conflict in the authorities. Not only does the majority opinion overrule the case in question, but it necessarily results in overthrowing the decision in Renihan v. Wright, 125 Ind. 536, 21 Am. St. 249, 9 L. R. A. 514. The defendants in the latter case were undertakers *80and funeral directors who had been employed by the plaintiffs to keep safely in a secure vault the body of their dead daughter. They violated their contract with the plaintiffs by allowing the body to be buried at some place unknown to the parents, which place the defendants refused to disclose. The trial court in that case charged the jury that in the assessment of damages they might take into consideration the mental anguish which the parents had suffered on account of the matters set out in their complaint. The charge on appeal was sustained, the court holding that “Where a person contracts, upon a sufficient consideration, to do a particular thing, the failure to' do which may result in anguish and distress of mind on the part of the other contracting party, he is presumed to have contracted with reference to the payment of damages of that character in the event such damages accrue by reason of a breach of the contract on his part.”
As a result of the holding in the case at bar it would follow that where a devoted husband or father employed an undertaker to prepare the body of his deceased wife or daughter, as the case might be, for interment, and the latter, instead of carrying out his contract, should deliver the body over to a medical college, where it was dissected, there could be no recovery by the husband or father for the great mental anguish and pain which he necessarily would suffer by reason of the brutal conduct of the undertaker, in disposing, as he did, of the remains of the beloved wife or daughter. Again, upon another view of the question, a railroad train is wrecked upon which the husband of a devoted and loving wife is a passenger; many of the passengers are killed and maimed, which is disclosed to the wife through the public press. Her husband, however, escapes from the wreck uninjured, and immediately telegraphs her that he is safe and for her not to be disturbed in respect to his safety. The telegraph company neglects to transmit the message to> the wife, although it is aware of its importance. The wife knows that *81her husband is a passenger on the ill-fated train of the wreck of which she has been apprised and fears that he has been killed or maimed, and of course suffers great anguish of mind and continues to suffer the same until she learns of her husband’s safety, all of which is due to the neglect of the telegraph company in not delivering to her the message sent by the husband. Under the harsh rule asserted in this case, she could not recover for the anguish of mind which she suffered and endured, which wo-uld be more severe to her, perhaps, under the circumstances, than any physical injury imaginable.
It is said that the common law is not sufficiently elastic to cover such cases, but the fault is not so much in the inelasticity of the law as it is in the narrow manner in which it is construed and judicially applied to a given state of facts. The judges who constructed the common law, when at a loss for a precedent, declared one, which became controlling in the future. The common law certainly can be made to adapt itself reasonably in the furtherance of justice to new conditions which have arisen in this progressive age. It was well said by Judge Deemer, in Mentzer v. Western Union Tel. Co., 93 Iowa 752, 62 N. W. 1, 28 L. R. A. 72: “One of the crowning glories of the common law has been its elasticity, and its adaptability to new conditions, and new states of fact. It has grown with civilization, and kept pace with the march of events, so that it is as virile to-day, in our advanced state of civilization, as when the race was emerging from the dark ages of the past. Should it ever fail to be adjustable to the new conditions which age and experience bring, then its usefulness is over, and a new social compact must be entered into.”
It is argued that damages for mental distress can not be recovered at common law for a mere breach of contract. This assertion may be said to be true as a general rule, but like all such rules it is in the administration of justice sub*82ject to reasonable exceptions. In fact, there is engrafted upon the rule at least one well recognized exception, namely, a man who enters into a marriage contract is presumed to know or contemplate that he is dealing with the affections and feelings of the woman whom he has agreed to marry, and, if he violates his contract, that she will be subject to humiliation, mortification, and mental anguish. In an action by her against him, the law awards, among other things, damages for her wounded feelings. In cases like the one at bar courts should regard the subject-matter of the contract. Where the neglected message relates solely to matters of property, the common law affords adequate compensation. What sound reasons then can be said to exist for construing the law so as to make it deny the liability of a telegraph company when its negligence has resulted in inflicting a great mental shock or mental suffering, which .is frequently more painful, under the circumstances, than a physical injury possibly could be. It is contended that in actions arising ex delicto accompanied by physical injury, that damages for Hie wounded or injured feelings may be awarded, but compensation for injury to the feelings is frequently allowed in actions where the matter complained of is unaccompanied by any physical injury. For instance, a passenger lawfully on a train is by the railroad company’s agent wrongfully ejected from the car, or rather compelled by the imperative orders or demands of the conductor in charge of the train to leave the car. In an action by the passenger against the railroad company his humiliation and injured feelings, under the circumstances, may be taken into consideration by the jury in the assessment of damages, although he was not touched, or in any manner sustained a physical injury. Such is also the rule in actions for slander or libel. Likewise in malicious prosecutions. Fisher v. Hamilton, 49 Ind. 341. Also in actions for false imprisonment. Stewart v. Maddox, 63 Ind. 51. The removal of the body of a deceased child from the lot where it was lawfully *83buried to a charity lot is held to entitle the parent of the child to recover against the party removing the body for injury to such parent’s feelings. Meagher v. Driscoll, 99 Mass. 281, 96 Am. Dec. 759. A widow may recover for mental anguish and nervous shock against a person who unlawfully mutilates the body of her dead husband. Larson v. Chase, 47 Minn. 307, 50 N. W. 238, 28 Am. St. 370. See also Sutherland on Damages, §979. Damages are also allowed to a father for his wounded feelings in an action by him against one for the seduction of his daughter. Erom the- above cases it is manifest that damages in actions of tort are frequently allowed for mental suffering or wounded feelings although there is no physical injury. In cases where there is some direct and proximate connection between the wrongful act and the injury to the feelings, whether the action is connected with a contract, or arises out of tort, the allowance of damages for injured feelings and anguish of mind is certainly justifiable. Rut it is said that in cases like the one at bar the damages demanded are frequently too shadowy and speculative to be properly measured. If this is true, it is equally so in cases of tort. While if true it might afford reasons for requiring courts to scrutinize closely and review the verdicts of juries returned in such cases, but it presents no reason for an entire abrogation of the rule for which I contend. In conclusion I may say that I can not sanction a rule of the law which affirms that a telegraph company, where it neglects to deliver a message to the husband that his wife is dying, or to a father that his son is dead and will be turned at a designated time, is not responsible except for mere nominal damages. Such an interpretation of the law ought not to be sustained. It will certainly result in telegraph companies neglecting their duties in sending messages of such character, as, under the decision in this case, they can virtually escape with impunity.
Without further extending this opinion by the citation of *84authorities and the assignment of other reasons in support of the rule in question, I conclude that the Reese and Renihan eases to which I have referred ought not to be overruled, and that the judgment below should be affirmed.