THE OKLAHOMA BAR JOURNAL 26 | SEPTEMBER 2025 Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. law typically requires that emotional distress be accompanied by physical injury or that the plaintiff was directly involved in the incident leading to the distress. Mere bystanders or those without a physical manifestation generally cannot recover. EARLY JURISPRUDENCE W. Union Tel. Co. v. Choteau One of the earliest Oklahoma cases to deal with an emotional distress claim was Choteau, supra, in 1911. There, the plaintiff claimed emotional distress from the defendant’s negligent delivery of a telegram. Defendant Western Union was charged with getting to Mr. Choteau a “prepaid telegram, announcing the serious illness of [his] father. It read ‘William very low: notify Ed and Julia.’”7 But the telegram was late, and Mr. Choteau missed the opportunity to say his goodbyes to his dying father. The court stated its task: “May a party ... recover substantial damages solely for the mental distress occasioned by the negligence on the part of the delivery company ... where such negligence results in denying him an opportunity of attending upon his father in his last illness, and seeing him prior to his death.”8 In order to answer this question, the court roamed through the already prolific national case law on emotional distress claims. Ultimately, it concluded that purely mental injury claims (as opposed to physical claims involving mental injury) were not found at common law; therefore, without statutory authority for such claims, the plaintiff could not recover on his NIED claim.9 The court reasoned it was not “wise to venture upon the far more speculative field of mental anguish” and that mental anguish alone “will not sustain an action for damages.”10 St. Louis & San Francisco Railway v. Keiffer A few years later, in 1915, in St. Louis & San Francisco Railway v. Keiffer,11 the plaintiff sued the railway for breach of contract. The plaintiff’s brother was very ill and needed to travel from Madill to Gainesville, Texas, for a lifesaving operation. The plaintiff contracted with the railway to “run a special train ... for the sole purpose of carrying his sick brother to Gainesville.”12 The dying brother, while on the train, became aware that his connection would be missed. As a result, according to the plaintiff, the brother’s condition “grew worse, and [he] abandoned all hope of life, and died shortly after.”13 The plaintiff alleged that he “endured great mental pain and suffering on account of the delay and by reason of witnessing the suffering and worry of his sick brother, which was intensified by reason of the delay.”14 The court unsympathetically declared, “No recovery can be had for mental pain and anguish, which is not produced by, connected with, or the result of, some physical suffering or injury, to the person enduring the mental anguish.”15 It made clear that only mental injury that accompanies specific physical suffering is actionable and therefore compensable. “Damages for pain suffered mentally, as the result of a physical injury, are allowed, for the reason that such mental suffering is necessarily a part of the physical suffering and injury, and is inseparable therefrom.”16 The Keiffer court stated: Whether we personally agree with the rule or not, nevertheless it is the law of Oklahoma that no recovery can be had for mental suffering, which is not produced by, connected with, or the result of physical suffering or injury, to the person enduring the mental anguish. There is no question ... the plaintiff suffered mental pain and anguish by reason of the fact that the train was delayed – his brother was suffering, and he had hoped for relief to his brother on reaching Gainesville – but that mental pain and anguish was disconnected with, and not the result of, any physical suffering or injury sustained by himself. In his amended petition he complains that he suffered with cold while waiting on the track and during the trip, and that he lost sleep on account of the delay; and it is manifest that the mental anguish contemplated by the instruction, under consideration, was not produced by either of these alleged injuries to himself.17 The Keiffer court further held, “Damages for mental suffering are not allowable, save as incidental to physical injury, but that: ‘In the case of a physical injury, damages for pain suffered, bodily and mentally, are allowed for the reason that such mental suffering is necessarily a part of the physical injury, and inseparable therefrom.’”18 MID-CENTURY PROGRESS Thompson v. Minnis Emotional distress litigation lulled for a bit until a particularly interesting case was decided in the 1940s, Thompson v. Minnis.19 In that case, plaintiffs claimed to have suffered mental distress arising from hunger.20 The plaintiffs
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