view of the general finding of the trial court, was an effective delivery of the deed in the on the facts, we deem it unnecessary to re- former case, considerable weight was attachview the law governing this class of convey- ed in the opinion to another fact in which A full discussion of the subject with the cases are precisely alike, and that was cases cited will be found in Young v. Mc- the absence of any evidence, or, as the opinWilliams, 75 Kan. 243, 89 Pac. 12. We are ion in the former case states, "convincing urged by the defendant, however, to give the evidence," showing any intention on the part most careful consideration to the case of of the grantor to retain control over the Young v. McWilliams, and it is insisted that deed. While the evidence here shows that the facts there are sufficient to distinguish the grantor exercised control over the propit from the present case. In the opinion in erty and made a subsequent deed purportthe former case Mr. Justice Mason, speaking ing to convey the title, our attention has not for the court, states the general rule as fol- been directed to any evidence tending to lows: "But where he deposits it with a show that at the time he deposited the deed third person, to be turned over upon his he retained any control or dominion over it. death to the grantee, this is a good delivery The whole controversy turned upon the inif he thereby surrenders all control over it, tent with which he deposited the deed in but not otherwise." In several particulars the hands of the custodian. This could onthe facts in that case differed from the facts ly be determined from the facts and cirin the present case. The deed executed by cumstances in evidence. We interpret the Young reserved to himself the use and in-language, "in case anything happens to me," come of the property during his life. A delivery directly to the grantee would have had the same effect so far as the grantor's rights were concerned. In the opinion in that case some weight is given to the fact that Young conveyed other property to other heirs as a circumstance shedding light on his probable intentions concerning the conveyance, and it is argued that the fact that Lamphier after the execution of the deed to Elsie Smith apparently altered his intention not only with respect to the land in controversy, but determined to dispose of all his property in his lifetime, and conveyed this land to the defendant, who took possession during the grantor's lifetime, and the further fact that he conveyed all his other property to Elsie Smith, should be considered as controlling circumstances in determining his intention at the time he executed the first conveyance. In Young v. McWilliams the fact that the grantor had conveyed other property to other heirs was not held to be controlling, but only a circumstance to be considered in connection with the further, more important fact that the deed in terms reserved to the grantor a life estate. More the same as though the grantor had said, “in case of my death," or "when I die." Under some circumstances, the use of the same language would more naturally mean something different. If, being about to go upon a journey, or about to submit to a dangerous surgical operation, he had said, "in case anything happens to me," the circumstances would naturally indicate that he had reference to the possibility of his death as something which might or might not occur, and that he intended to retain control of the instrument in case nothing did happen to him. In the absence of any testimony, therefore, showing an intention to limit his language to something which might or might not happen and, in view of his age and situation in life, we think the court was justified in finding that he meant the same as though he had said, "When my death occurs, I want the deed delivered to Elsie." The general finding of the court precludes us from granting any relief to the defendant. Every inference favorable to the plaintiff which may be drawn from the testimony must be indulged, including a finding that it was the intention of the grantor that the deed take effect at once, and that he parted with all dominion and control over it. Wuester v. Folin, 60 Kan. 334, 56 Pac. 490; Doty v. Barker, 78 Kan. 636, 97 Pac. 964. The judgment will be affirmed. All the Justices concurring. the circumstances surrounding the transaction in Young v. McWilliams were of more than usual importance for the reason that we were of the opinion that the testimony of the custodian concerning what actually occurred when the deed was left with him was without probative force because he had no recollection of what was said by the grantor. In the present case the testimony is clear and unambiguous as to what the grantor said at the time of the delivery, and, with the other circumstances in evidence, was sufficient to authorize the general find-1. ing of the court that his intention was that the deed should be retained by Mullaney and delivered to Elsie Smith in case of the grant or's death. WILLIAM SMALL & CO. v. LONERGAN. (Supreme Court of Kansas. Nov. 6, 1909.) DAMAGES (8 49*)- MENTAL SUFFERING WILLFUL WRONGS. The general rule, applied in cases of unintentional negligence, that mental suffering, unaccompanied by bodily injury, is not a ground of recovery, is not applicable in cases of willIn arriving at the conclusion that there full and wanton wrongs and those committed with malice and an intention to cause mental ciously, carelessly, and negligently tear the distress. clothing of this plaintiff." It is further al[Ed. Note. For other cases, see Damages, leged that these acts were done in the presCent. Dig. § 100; Dec. Dig. § 49.*] ence of others, and that when Cobb exam2. ASSAULT AND BATTERY (§§ 2, 38*)-"As-ined the box, and learned that the contents SAULT-DAMAGES-MENTAL SUFFERING. An assault upon another is an intentional did not belong to his firm, he did not so aninfringement upon the absolute right of personal nounce to the bystanders, nor did he apolosecurity, for which the law gives a right of ac-gize to the plaintiff, but insolently ordered tion against the wrongdoer in which damages for mental suffering, which is the proximate and natural result of such wrong, may be awarded, although there is no battery or bodily injury inflicted. [Ed. Note.-For other cases, see Assault and Battery, Cent. Dig. §§ 1, 53; Dec. Dig. §§ 2, 38.* For other definitions, see Words and Phrases, vol. 1, pp. 532-538; vol. 8, p. 7582.] 3. ASSAULT AND BATTERY (§ 40*)-EXCESSIVENESS-ASSAULT. The damages herein allowed held to be excessive, and an option to remit the excess is given to appellee. [Ed. Note.-For other cases, see Assault and Battery, Cent. Dig. § 55; Dec. Dig. § 40.*] (Syllabus by the Court.) Error from District Court, Leavenworth County; J. H. Gillpatrick, Judge. Action by Agnes Lonergan against William Small & Co. Judgment for plaintiff, and defendant brings error. Affirmed on condition of reduction in damages. John H. Atwood, W. W. Hooper, and J. K. Codding, for plaintiff in error. Benjamin F. Endres, for defendant in error. her to leave the store, and that he maliciously treated and held her out to those in the store as a shoplifter and thief, to the great injury to her feelings and bodily health. In the trial of the case, which resulted in a verdict for the plaintiff, there was testimony tending to sustain the principal averments of the petition. Much of that given in behalf of the defendants was contradictory to the plaintiff's testimony; but there is no difficulty in saying that there was sufficient evidence to support a recovery. In answer to special questions, the jury found that the plaintiff did not suffer any bodily injury from the assault, and that any mental suffering she may have endured was not occasioned by physical injury. The jury also answered that no damages were allowed for slander or words spoken, nor for any battery; but they did allow $2,500 as damages for the assault. It is argued by appellants, who are complaining of the verdict, that as there was no bodily injury inflicted there can be no recovery for insult, indignity, humiliation, and mental distress resulting from the assault committed upon the plaintiff. AppelJOHNSTON, C. J. In this action, brought lants insist that this case falls within a class by Agnes Lonergan against the firm of Wil- of cases wherein it was held that mental liam Small & Co., she alleged that she en- suffering, apart from physical injury, cannot tered their store on September 12, 1905, car- be made a basis for the recovery of damages. rying with her a box containing articles pur- In the early case of City of Salina v. Trosper, chased in another store, and, while engaged 27 Kan. 544, brought to recover for injuries in purchasing an article in defendants' store, from a defective street, it was ruled that that W. F. Cobb, a member of the firm en- nothing could be recovered for mental sufgaged "in looking after customers and car- fering except when it is an element and necing for the goods, wares, and merchandise in essary consequence of physical pain and is said store for the purpose of protecting the the proximate result of physical injury. In same and preventing any person from taking that case mention was made of the fact that away, purloining, or carrying away any of the plaintiff made no claim of injury to charthe stock in said store, wrongfully and un-acter or reputation, nor for any insult or inlawfully approached this plaintiff in a rude dignity. The same view is expressed in other and insolent and angry manner, and did then and there negligently, carelessly, willfully, and intentionally make an assault upon her, the said plaintiff, and did then and there, under the pretense that the box so carried under the arm of this plaintiff had been wrongfully taken from the stock of goods belonging to these defendants, violently lay hold of said box so held under the arm of this plaintiff, and of the person and clothing of There are well-recognized exceptions to the this plaintiff, and did then and there wrong- general rule making a contemporaneous bodfully, willfully, maliciously, carelessly, neg- ily injury essential to a recovery of damages, ligently, and intentionally jerk, snatch, and and among them may be mentioned assault, tear said box from the possession of said illegal arrest, malicious prosecution, false implaintiff, and did wrongfully, maliciously, prisonment, and seduction. While there is intentionally, and violently assault this plain- some diversity of judicial opinion on some tiff, and did willfully, intentionally, mali- of the exceptions to the rule and the grounds cases involving the mere negligence of the defendant. West v. Telegraph Co., 39 Kan. 93, 17 Pac. 807, 7 Am. St. Rep. 530; A., T. & S. F. R. Co. v. McGinnis, 46 Kan. 109, 26 Pac. 453; Railroad Co. v. Dalton, 65 Kan. 661, 70 Pac. 645; Manser v. Collins, 69 Kan. 290, 76 Pac. 851; Cole v. Gray, 70 Kan. 705, 79 Pac. 654; Shelton v. Bornt, 77 Kan. 1, 93 Pac. 341. on which they rest, there is general concurrence in the view that the rule has no application to willful and wanton wrongs and those committed with the intention of causing mental distress and injured feelings. The Supreme Court of Massachusetts, after holding that there could be no recovery against one who is guilty of only unintentional negligence, added: "It is hardly necessary to add that this decision does not reach those classes of actions where an intention to cause mental distress or to hurt the feelings is shown, or is reasonably to be inferred, as, for example, in cases of seduction, slander, malicious prosecution, or arrest, and some others. Nor do we include cases of acts done with gross carelessness or recklessness, showing utter indifference to such consequences, when they must have been in the actor's mind." Spade v. Lynn & Boston Railroad, 168 Mass. 285, 47 N. E. 88, 38 L. R. A. 512, 60 Am. St. Rep. 393. In Newell v. Whitcher, 53 Vt. 589, 38 Am. Rep. 703, the plaintiff went to defendånt's house to give music lessons to his daughters, and after she had retired to her room for the night he stealthily entered her room, sat down upon her bed, and leaned over her person, and repeatedly solicited sexual intimacy, which she repelled. The acts of the defendant filled her with fear, and so outraged her feelings that a spell of sickness was brought on which continued for a long time. It was held that to excite her fear and an apprehension of force in the execution of defendant's unlawful purpose was an assault for which she might recover. Cooper v. Hopkins, 70 N. H. 271, 48 Atl. 100, was a case which had some of the features of the one under consideration. The plaintiff, while standing among customers in a store, was approached by Moore, the manager, who touched her on the shoulder and asked her to go into another room, and, as she did not go with him, he accused her of larceny, seized her, and searched her shopping bag, all in the presence of customers and clerks. On the trial the plaintiff's innocence was admitted. A requested instruction that if no injury was done to plaintiff's person by the assault, and she was not put in fear of such injury, she could not recover for injuries to her mind or feelings, was refused by the trial court, and the Supreme Court held on review that the instruction was properly denied, saying that: "If Moore's acts were occasioned by malice, the plaintiff would be entitled to damages for the injury, if any, to her feelings, although no injury was done to her person. The right to damages for this cause does not depend upon the extent of the physical injuries suffered by the injured party, but upon the malice of the wrongdoer." A case in Indiana, in which damages for mental suffering was allowed for assault, was where the defendant ordered a woman and children to move out of a building. He then poured oil on the building and scratched a on fire, and then pointed a gun at the woman, telling her that if she did not leave the place he would shoot her and the children. The Supreme Court held that the acts of the defendant constituted a willful invasion of the right of personal security, that there was a touching of the mind, if not of the body, which made the defendant liable, and the court said that: "Having reached the conclusion that an actionable wrong was done appellee by appellant's willful act, we assert that, as the law imports some damage, she was entitled to recover full compensation, which includes compensation for her mental suffering, even if there was no unlawful touching of the body and no physical injury." Kline v. Kline, 158 Ind. 602, 64 N. E. 9, 58 L. R. A. 397. In Wilkinson v. Downton, L. R. (1897) 2 Q. B. 57, the defendant, by way of a practical joke, represented to plaintiff, a married woman, that her husband had met with a serious accident whereby both of his legs were broken. The statement was known to be false by the defendant, and he made it with the intention that it should be believed to be true. The plaintiff believed it to be true, and in consequence suffered a violent nervous shock which rendered her ill, for which the court held that she was entitled to a recovery. In 13 Cyc. 44, it is said that, "while the general rule obtains that a recovery for mental anguish must generally be connected with the personal physical injury, it is also true that where the wrong is accompanied by circumstances of malice, insult, or willfulness, a recovery may be had therefor." The exception to the rule is stated in 8 A. & E. Encyc. of L. 667, in this way: "It has been said that the rule requiring bodily injury, in order to warrant a recovery for mental suffering in cases of negligence, has no application to wanton or intentional wrongs where the mental distress was incident to or a natural consequence of some actionable wrong." Leach v. Leach, 11 Tex. Civ. App. 699, 33 S. W. 703; Hickey v. Welch, 91 Mo. App. 4; Barbee v. Reese, 60 Miss. 906; Caspar v. Prosdame, 46 La. Ann. 36, 14 South. 317; Davis v. Tacoma R. & Power Co., 35 Wash. 203, 77 Pac. 209, 66 L. R. A. 802; Craker v. Chicago & Northwestern Railway Co., 36 Wis. 657, 17 Am. Rep. 504; Williams v. Underhill, 63 App. Div. 223, 71 N. Y. Supp. 291; Alcorn v. Mitchell, 63 Ill. 553; Larson v. Chase, 47 Minn. 307, 50 N. W. .238, 14 L. R. A. 85, 28 Am. St. Rep. 370; Watson on Damages for Personal Injuries, 502; Voorhies, Measure of Damages, § 110. The testimony of the appellee, which the jury accepted, shows an assault of an aggravated character. The seizure of the appellee, the snatching of the box in an insolent manner, and the searching of the same for stolen goods, in the presence of others, was a wanton insult and indignity, which was emphasized by the fact that when Cobb discovered that the goods had not been obtained given, and when appellee complained she was ordered to leave the store. This was a direct invasion of the appellee's rights of personal security. There was inchoate violence, the insult, and the implied charge that she was a shoplifter. It has been said that: "The right to one's person may be said to be a right of complete immunity, to be let alone. An attempt to commit a battery usually involves an assault, a putting in fear, a sudden call upon the energies for prompt and effectual resistance, and the law for these reasons makes the assault a wrong even though no actual battery takes place." Cooley on Torts, 9. The assault of itself gave the appellee a right of action against the wrongdoer, and the authorities are all agreed that, whenever the attack or invasion of personal security is of such a character as to give a right of action against the wrongdoer, the injured person may recover for the mental suffering which is a consequence of the wrong. The mental suffering therefore does not stand alone, as appellants would contend, but is connected with and has a foundation in the assault which gave the appellee a right of action at common law. In this state damages of this kind were allowed where a passenger on a railway train having a good ticket and a right to ride was told by the conductor that the ticket was invalid and that he must leave the train. The passenger had no money to pay his fare, and the conductor took him by the coat collar, led him out of the car, and when they reached the platform some one else paid his fare, and he was allowed to proceed on his journey. It was held that he was entitled to recover actual compensation for the indignity and injury to which he was subjected, and, further, if there was gross negligence amounting to wantonness on the part of the conductor, that there might be a recovery of exemplary damages. S. K. Ry. Co. v. Rice, 38 Kan. 398, 16 Pac. 817, 5 Am. St. Rep. 766. See, also, Railroad Co. v. Little, 66 Kan. 378, 71 Pac. 820, 61 L. R. A. 122. In one of the instructions the trial court gave the general rule that mental suffering, unaccompanied by physical injury, was not a ground of recovery, and it is insisted that the finding of no bodily injury under this instruction necessarily defeats any recovery. The instruction, taken by itself, was too broad and is one of which appellants have no cause to complain. In another instruction the jury were told that they might allow the plaintiff compensation for the assault and for the mortification and shame suffered mitted upon the appellee. This is apparent from the fact that, when the appellants asked for judgment on the findings because no bodily injury was inflicted, the court denied the motion and instead approved a verdict awarding damages for an assault which in the nature of things was largely an allowance for mental suffering. There are other criticisms of instructions; but we find nothing substantial in them, nor is there any error in the hypothetical questions about which complaint is made. The contention that one of the findings and also the general verdict are without support cannot be sustained. The final contention is that the damages are excessive. It is not easy to fix a standard for measuring damages in cases of this character, nor to determine what is just compensation for the injury inflicted. The amount awarded should be just and reasonable, taking into consideration the character and the extent of the injury and the attending circumstances. In view of the testimony with respect to the suffering, the status of the parties, and all the circumstances brought out in the testimony, the appellee was entitled to a liberal allowance; but $2,500, the amount awarded, appears to be unreasonable and excessive. To the court it would seem that an award of $1,000 would be reasonable and just, and, if the appellee remits $1,500 of the amount given by the verdict, the judgment will be accordingly modified, and affirmed; otherwise it will be reversed. All the Justices concur. VAUGHAN v. BROWNE et al. (Supreme Court of Kansas. Nov. 6, 1909.) EXECUTORS AND ADMINISTRATORS (8 153*)— ACTIONS TO RECOVER ASSETS-JUDGMENT. The district court, upon an appeal from the probate court in proceedings under the executor's act (Gen. St. 1901, §§ 3002-3006), found the defendants guilty of wrongfully taking and conveying away and withholding personal property belonging to the estate from the administrator, and adjudged that it be restored to his pelled by attachment; but also ordered that, in possession, and that such restoration be comcase there were sufficient other personal property of the estate to pay the indebtedness and expenses of administration, the administrator should return the property (or the proceeds thereof) to the defendants. It is held that the order for the return of the property or its proceeds to the wrongdoers, who had so unlawfully conveyed it away, was inconsistent with the findings and judgment, and an unwarranted interference with the due course of administration and erroneous. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 629; Dec. Dig. § 153.*] (Syllabus by the Court.) Error to District Court, Jackson County; Marshall Gephart, Judge. and the disgrace and dishonor cast upon her. Although the general rule was given without proper qualifications, it is evident from the whole charge that the court held to the view that damages might be allowed in the absence of bodily injury if the jury Action by Daniel P. Vaughan, administrafound that a wanton assault had been com- tor, against Alexander Browne, Jr., and George Grover. Judgment for plaintiff, and were guilty of having unlawfully conveyed defendants bring error. Modified and remanded. This BENSON, J. Patrick Vaughan died intestate September 17, 1905, leaving Daniel P. Vaughan and T. B. Vaughan, his sons, his sole heirs, and leaving personal property which was inventoried by the administrator November 25, 1905. On the same day on which the inventory was filed, judgments were rendered by a justice of the peace against T. B. Vaughan, and executions were issued thereon to the defendant Alexander Browne, Jr., a constable, who thereupon levied on certain domestic animals in the possession of the administrator, which were borne upon his inventory as belonging to the estate, and which did in fact belong to the deceased at the time of his death. property was afterwards sold by Browne at a constable's sale to his codefendant, George Grover. At the time of the sale, the administrator publicly claimed the property as a part of the estate of Patrick Vaughan, deceased, and forbade the sale. The sale proceeded, however, and the property was taken away by the purchaser, Grover. The constable made the following return: "Received this writ Nov. 25, 1905. Nov. 25, 1905, levied on the goods and chattels of the within named T. B. Vaughan in the possession of Dan Vaughan and claimed by him as administrator of the estate of Patrick Vaughan, deceased, described in the annexed schedule. Nov. 25, 1905, advertised the same for sale. December 21, 1905, sold the following goods and chattels at the price set opposite the same: 4 cows, two heifers, 2 spring calves, 1.short horn bull, 1 mare mule $125.00. First offered them separately and received no bids because Dan Vaughan claimed them as administrator. I then offered them for sale in a bunch and sold them in a bunch to George Grover for $125.00. State of Kansas, Pottawatomie County-ss.: I certify the above to be the times and manner of executing the within writ. Alexander Browne, Jr., Deputy Constable." The administrator demanded the property of the purchaser, and, the demand being refused, filed his complaint in the probate court charging that the defendants had conveyed away, and still held and concealed it, and asked for a citation for the appearance and examination of the defendants under the provisions of sections 3002-3006 of the General Statutes of 1901. The proceedings under this complaint resulted in a judgment of the probate court ordering the restoration of the property to the administrator. From this order the defendants appealed, and upon a trial in the district court it was found that away the property, and of wrongfully withholding it from the possession of the administrator, and ordered that it be restored to his possession, and that such return be enforced by attachment. Having so found and adjudged in favor of the administrator, the court also ordered as follows: "It is further considered, ordered, and adjudged that in case there shall be sufficient other personal property of said estate to pay in full all indebtedness of said estate, including expenses of administration, then and in such case the said administrator shall deliver to the appellant George Grover all of the property in controversy in this proceeding, including the $12.50 herein adjudged to be paid in lieu of the aforesaid dead animal, ment of the debts of the aforesaid estate which shall not have been used in the payand expenses of administrator, after all other personal property of said estate shall have It is further considered, ordered, and adjudged that, in the event the property in question in this proceeding shall be converted into money by said administrator, the proceeds thereof shall be by said administrator paid to the appellant George Grover, excepting only so much thereof as shall have been necessarily used in the payment of the debts of the estate of the said Patrick Vaughan, deceased, and expenses of administration, after all other personal property of said estate shall have been exhausted." Abstract, p. 37. been exhausted. The statute requires an administrator o make an inventory of the personal property of the deceased, and to sell it within three months from the date of his bond. He is charged in his account with the amount of the sale bill and all property coming to his hands to be administered. Such property does not descend to the heir subject to the payment of debts; but the legal title vests in the administrator for this purpose and for the distribution of the remaining proceeds after paying expenses. He must have the possession in order that he may thus administer, and this possession is protected and the right thereto enforced by the provisions giving a summary remedy against those who embezzle, conceal, or convey away such property. The defendants challenge in this court the jurisdiction of the district court to try the title to this property on appeal from the probate court, citing Hartwig v. Flynn, 100 Pac. 642; but the complaint was clearly sufficient to give the court jurisdiction to proceed under the statute, and, as the defendants did not file a cross-petition in error, it is not perceived how they can question the sufficiency of the evidence to support the complaint. The case cited, however, is radically different from this. This is a proceeding to obtain possession of property admitted |