for mental pain and anguish when there has been no physi cal injury.

In Shearman and Redfield on Negligence, section 605, it is said: "In case of delay or total failure of delivery of messages relating to matters not connected with business, such as personal or domestic matters, we do not think that the company in fault ought to escape with mere nominal damages on account of the want of strict commercial value in such messages. Delay in the announcement of a death, an arrival, the straying or recovery of a child, and the like, may often be productive of an injury to the feelings which cannot easily be estimated in money, but for which a jury should be at liberty to award fair damages. Yet, in such cases, the damages ought not to be enhanced by evidence of any circumstances which could not reasonably have been anticipated as probable from the language of the written message."

This paragraph was cited and approved by the court of appeals of Kentucky in an opinion filed on June 14, 1890 (Chapman v. Western Union Tel. Co., 13 S. W. Rep. 880), in which the court says: "This seems to be the true rule, one which is in accord with reason, and necessary to a proper protection of individual right and the interests of the public."

In this case, the court held that the plaintiff could recover damages for delay in the delivery of a message announcing the illness and death of the plaintiff's father, and says: "Many of the text-writers say that a person cannot recover damages for mental anguish alone, and that he can recover such damages only where he is entitled to recover some damages upon some other ground. It will generally be found, however, that they are speaking of cases of personal injury. If a telegraph company undertakes to send a message, and it fails to use ordinary diligence in doing so, it is certainly liable for some damage. It has violated its contract; and whenever a party does so, he is liable, at least to some extent. Every infraction of a legal right causes injury in contemplation of law. The party being entitled, in such a case, to recover something, why should not an injury to the feelings, which is often more injurious than a physical one, enter into the estimate? Why, being entitled to some damage by reason of the other party's wrongful act, should not the complaining party recover all the damage arising from it? It seems to us that no sound reason can be given to the contrary. The business of telegraphing, while yet in its infancy, is already of wonder

ful extent and importance to the public. It is growing, and the end cannot yet be seen. A telegraph company is a quasi public agent, and, as such, it should exercise the extraordinary privileges accorded to it with diligence to the public. If in matters of mere trade it negligently fails to do its duty it is responsible for all the natural and proximate damage, is it to be said or held that, as to matters of far greater interest to a person, it shall not be, because feelings or affections only are involved? If it negligently fails to deliver a message which closes a trade for one hundred dollars, or even less, it is responsible for the damage. It is said, however, that if it is guilty of like fault as to a message to the husband that the wife is dying, or the father that his son is dead and will be buried at a certain time, there is no responsibility save that which is nominal. Such rule, at first blush, merits disapproval. It would sanction the company in wrong-doing. It would hold it responsible in matters of the least importance, and suffer it to violate its contracts with impunity as to the greater. It seems to us that both reason and public policy require that it should answer for all injury resulting from its negligence, whether it be to the feelings or the purse, subject only to the rule that it must be the direct and proximate consequence of the act. The injury to the feelings should be regarded as a part of the actual damage, and the jury be allowed to consider it. If it be said that it does not admit of accurate pecuniary measurement, equally so may it be said of any case where mental anguish enters into the estimate of injury for a wrong, and it furnishes no sufficient reason why an injured party should not be allowed to look to the wrong-doer for reparation. If injury to the feelings be an element to the actual damages in slander, libel, and breach of promise cases, it seems to us it should equally be so considered in cases of this character. If not, then most grievous wrongs may often be inflicted with impunity; legal insult added to outrage by the party, by offering one cent, or the cost of the telegram, as compensation to the injured party. Whether the injury be to the feelings, or pecuniary, the act of the violator of a right secured by contract has caused it. The source is the same, and the violator should answer for all the proximate damages."

In Indiana and Texas, opinions to the same effect have also been filed during the present year. In the Indiana case (Reese v. Western Union Tel. Co., 123 Ind. 294), Berkshire, J., says:

"Although the telegram had no relation to any business trans action which would have involved dollars and cents merely, this did not justify the appellee in neglecting its duty. It had undertaken, for a valuable consideration, to deliver the message promptly, and its failure so to do, or to make reasonable effort in that direction, was negligence and a violation of its undertaking. The diligence which a telegraph company is required to use in the delivery of a message will be determined, to some extent, from the character and importance of the message. Upon humane grounds, messages like the cne here involved should be promptly delivered, and should be regarded as of more importance to the parties concerned than mere business messages, and, in promptness of delivery, should have preference over messages of the latter class. From the information it had before it when it entered into the undertaking, the appellee was bound to know that mental anguish might, and most probably would, come to some person in case it failed to act promptly in transmitting and delivering the dispatch, and therefore such a result was contemplated when the message was delivered by the appellant to the appellee's agent at Jamestown, and is within the undertaking. . . . . The appellant having suffered great mental anguish, because, as he alleges, of the failure to promptly deliver the message, it would be a harsh rule which would deny to him all redress except the mere pittance which he paid to have the telegram transmitted and delivered. Some of the authorities seek to draw a distinction, as to the right to recover damages for mental suffering, between cases where there may be a recovery for pecuniary loss, and cases where there is, or can be, no pecuniary loss, to which class the present action belongs. With this distinction we have no sympathy, and confess we can see no good reason for it to rest upon. If a telegraph company undertakes to transmit and deliver promptly a message wherein dollars and cents are alone involved, and its negligence occasions loss, it is conceded by all the authorities that it may be compelled to respond in damages. Why? Because it has negligently broken its agreement, or as is sometimes said, failed to perform a duty which it owed to the sender of the message or the person to whom it is addressed, as the case may be. For the same pecuniary consideration it undertakes to transmit and deliver a message informing a husband of the dangerous illness of his wife, the wife of her husband, the parent of the child, the child of the

parent, and it negligently fails to deliver the telegram, and, as a result, the sick relation dies without having the comforting presence of a husband, wife, father, mother, son, or daughter, with all the benefit, physical and mental, which would follow. Is it to be said that, under such circumstance, the most that the telegraph company is liable for is nominal damages because of greater mental anguish suffered by the sender of the telegram, who may be the father, mother, husband, wife, or child? In our judgment, no such rule can or should prevail. In failing to promptly deliver the telegram, the telegraph company negligently fails to perform a duty which it owes to the sender of a telegram, and should be held liable for whatever injury follows as the proximate result of its negligent conduct. It is not a mere breach of contract, but a failure to perform a duty which rests upon it as a servant of the public. In our opinion, the appellant is entitled to recover damages for the mental suffering which he has endured, and his meas. ure of damages is the amount paid for the transmission of the message, and, in addition, what would seem to be just as a compensation for his mental anguish."

In the other case (Western Union Tel. Co. v. Moore, 76 Tex. 66; 18 Am. St. Rep. 25), the court held that a message delivered for transmission to a telegraph company, containing the words, "Billy is very low; come at once," is sufficient to apprise the company that the message refers to a near relative of the person to whom it is addressed, and of the fact that mental suffering is likely to result from a failure to transmit the message with diligence and dispatch; and says: "In the case of Western Union Tel. Co. v. Adams, 75 Tex. 531, 16 Am. St. Rep. 920, it was held, in effect, that a recovery could be had for mental suffering resulting from a failure to deliver with diligence a telegraphic message announcing the sickness or death of a relative, provided the language employed in the message was reasonably sufficient to put the company upon inquiry as to the relationship between such person and the party addressed, and to apprise them that its object was to afford the party an opportunity to attend upon his relative in his last sickness, or to be present at the funeral in the case of death. The same principle was affirmed in the case of Western Union Tel. Co. v. Feegles, 75 Tex. 537," decided at the same term, and Western Union Tel. Co. v. Broesche, 72 Tex. 654; 13 Am. St. Rep. 843.

In Western Union Tel. Co. v. Cooper, 71 Tex. 507, 10 Am.

St. Rep. 772 (1888), Collard, J., says: "Appellant claims that its demurrers to plaintiff's petition should have been sustained, because injury to feelings, disconnected from all actual personal injury, are exemplary damages, and the facts alleged are not sufficient to recover exemplary damages. The very question raised here was before the supreme court in the case of Stuart v. Western Union Tel. Co., 66 Tex. 580; 59 Am. Rep. 623; and the court, after discussing the So Relle case (So Relle v. Western Union Tel. Co., 55 Tex. 310; 40 Am. Rep. 805), and the two Levy cases (Galveston etc. R'y Co. v. Levy, 59 Tex. 543; 46 Am. Rep. 278; Galveston etc. R'y Co. v. Levy, 59 Tex. 563), the case of Hays v. Houston etc. R. R. Co., 46 Tex. 272, and other authorities, uses the following language: 'But it is claimed that the mental is an incident to the bodily pain, and that without the latter the former cannot be considered as actual damages. In cases of bodily injury, the mental suffering is not more directly and naturally the result of the wrongful act than in this case, not more obviously the consequences of the wrong done than in this case. What difference exists to make the claimed distinction? That it is caused by and contemplated in doing the wrongful act is the principle of liability. The wrong-doer knows that he is doing this damage when he afflicts the mind by withholding the message of mortal illness as well as by a wound to the person.' The conclusion derived from the opinion in the case from which the foregoing extract is taken is, that injury to feelings, caused by a failure to deliver a message relating to domestic affairs, where the failure is the result of negligence on the part of the company or its servants, is an element of actual damage. The same principle was decided by the cominission of appeals in the case of Miller v. Gulf etc. R'y Co., erroneously styled in the reports Wilson v. Gulf etc. R'y Co., 69 Tex. 739, and it was held that the right to recover would not depend upon the degree of negligence causing the injury. If the inexcusable negligence of the defendant's servants is found to be the proximate cause of the injury, damages may be recovered, commensurate with the injury."

In Western Union Tel. Co. v. Simpson, 73 Tex. 422 (decided 1889), the court reaffirmed the same doctrine as does Loper v. Western Union Tel. Co., 70 Tex. 689, which is exactly like our case, except that the relationship was that of a mother who was prevented from being at her son's death-bed and burial by negligent delay in the delivery of the telegram.