In a recent case (1888), decided in the supreme court of Tennessee (Wadsworth v. Western Union Tel. Co., 86 Tenn. 695; 6 Am. St. Rep. 864), that court affirms the same doctrine; and Caldwell, J., after quoting the authorities to the effect that damages for mental anguish cannot usually be given in an action for breach of contract, says: "These are but illustrations and applications of the general rule, which we have already stated, for the estimation of damages in actions for breach of contract. They serve the purpose of showing that in the ordinary contract only pecuniary benefits are contemplated by the contracting parties, and that therefore the damages resulting from the breach of such a contract must be measured by pecuniary standards; and that where other than pecuniary benefits are contracted for, other than pecuniary standards will be applied in the ascertainment of the damages flowing from the breach. The case before us (so far as it is an action for breach of contract) is subject to the same general rule, and the defendant is answerable in damages for the breach, according to the nature of the contract, and the character and extent of the injury suffered by reason of its non-performance. The messages were sent for a particular purpose, which was disclosed upon their face, and of which the defendant had full notice. That purpose was not of a pecuniary nature. There was no offer or instruction to buy or sell anything,—no proposition or promise with respect to any business transaction. The messages were of far greater importance to the receiver than any of these. Her brother was lying at the point of death, in easy reach of her. It was information of this fact that the defendant first undertook to convey to her for a stipulated sum, and which, if conveyed promptly, would have enabled her to be with him in his last moments, and would have saved her the injury of which she complains. Then her brother died away from her; his body needed her attention, and would have received it, as averred, if the defendant had done its duty. It was intelligence of the death which the defendant agreed, in the second place, to communicate to her. The messages were proper in language, and lawful in purpose. She was entitled to the information they contained, and to whatever benefits that information would have conferred upon her, even though such benefits be mainly or altogether to the feelings and affections. The defendant contracted that she should have those benefits, and that she should be spared whatever pain and anguish such in

formation, promptly conveyed, would prevent. By all the authorities, including our code, it was the duty of the defendant to transmit and deliver these messages 'correctly and without unreasonable delay,' and in failing to do so it became responsible for all loss or injury occasioned thereby: Code (Mill. & V.), secs. 1541, 1542; Marr v. Western Union Tel. Co., 85 Tenn. 529; Gray on Telegraphs, secs. 81, 82, et seq.; Cooley on Torts, 646, 647; Wharton on Negligence, sec. 767; 3 Sutherland on Damages, 298-300; Shearman and Redfield on Negligence, sec. 605. This rule of damages is enforced by the supreme courts of Georgia, Virginia, and other states, even where the message is in cipher: Western Union Tel. Co. v. Fatman, 73 Ga. 285; 54 Am. Rep. 877; Western Union Tel. Co. v. Reynolds, 77 Va. 173; 46 Am. Rep. 715, and reporter's note at end of case. It is true that most of the adjudged cases in which telegraph companies have been required to respond in damages for their negligence have involved questions of pecuniary loss, but we cannot agree that for that reason the liability should attach and be enforced in such cases only. Telegraphy is of comparatively recent origin, and the law concerning the duties and liabilities of telegraph companies has hardly passed its infancy, and cannot be expected, at so early a day in its history, to be settled, even in its important parts, by a long line of concurrent decisions.

"In addition to this, it is but reasonable to presume that such a flagrant breach of plain obligation, with respect to matters so near the heart and so accustomed to the respect of all mankind as is here averred, has but seldom occurred, and therefore has but seldom been brought to the attention of the courts of the country. To hold that the defendant is not liable in this case for the wrong and injury done to the feelings and affections of Mrs. Wadsworth by its default would be to disregard the purpose of the telegrams altogether, and to violate that rule of law which authorizes a recovery of damages appropriate to the objects of the contract broken; and furthermore, such a holding would justify the conclusion that the defendant might with impunity have refused to receive and transmit such messages at all; and that it has the right in the future to do as it has done in this case, or at least, that it cannot be required to respond in damages for doing so. To such a result we think no court should subThe telegraph company is the servant rather than the master of its patrons. That the amount of damages

mit.

allowable in such a case as this is not capable of easy and accurate mathematical computation is freely conceded; but that should not be a sufficient reason for refusing or defeating the right of action altogether; for the same objection may be urged with the same force in all cases where mental and bodily suffering are treated as proper elements of damage. It is very appropriately said, however, in the conclusion of the opinion in So Relle's case, that 'great caution should be ob served in the trial of cases like this, as it will be so easy and natural to confound the corroding grief occasioned by the loss of the parent or other relative with the disappointment and regret occasioned by the fault or neglect of the company; for it is only the latter for which a recovery may be had, and the attention of juries might well be called to that fact.' Nor do we think the suggestion that the decision we are making may encourage the bringing of other suits of a similar nature is of very great moment as a matter for the consideration of the court in its endeavor to reach a just and sound conclusion. It is rather to be hoped that instances of such dereliction of plain, easy, and important duty have not been very numerous in the past, and that they will seldom transpire in the future."

In the United States circuit court, in the case of Beasley v. Western Union Tel. Co., 39 Fed. Rep. 181 (decided 1889), the court held that if by cause of the unreasonable delay of a telegram the husband was prevented from reaching his wife's bed before her death, he could recover a proper compensation for his disappointment and mental anguish. The judge (Maxey) very properly adds that caution should be observed by the jury to distinguish between the pain caused the plaintiff by the wife's death, for which the defendant was not responsible, and that caused by being deprived, by defendant's negligence, of the consolation of seeing his wife before her death.

This subject is one of the first impression in this state.

It is a matter of importance to the public that it should be settled what legal obligation, if any, rests upon the telegraph companies to deliver promptly messages of a social nature, not concerning pecuniary transactions. To many, and in many instances, they are far more important. If no pecuniary damages can be recovered for a breach of the duty to deliver such messages, beyond the recovery of the petty sum paid for transmission, the usefulness and value to the public of such corporations will be materially diminished. We have

therefore cited quite fully from the most recent cases on the subject. There are older cases sustaining the same doctrine.

In So Relle v. Western Union Tel. Co., 55 Tex. 308, 40 Am. Rep. 805, it was held that a telegraph company is liable for injury to the feelings of a son from delay in delivering to him a message announcing the death of his mother, whereby he was prevented from attending her funeral.

In Stuart v. Western Union Tel. Co., 66 Tex. 580, 59 Am. Rep. 623, it is held that where, by gross negligence in delivering a telegram, plaintiff was prevented from seeing his brother in his last illness and attending his funeral, compensation for injury to feelings may be recovered. The same principle is intimated in Logan v. Western Union Tel. Cc., 84 Ill. 468, and there are other authorities. There are some authorities to be found of a contrary tenor: West v. Western Union Tel. Co., 39 Kan. 93; 7 Am. St. Rep. 530; Russell v. Western Union Tel. Co., 3 Dak. 315; and some others; but they fail to satisfy us that they are consonant to justice and the "reason of the thing."

Damages for injury to the feelings, such as mental anguish or humiliation, are given, though there may be no physical injury, in many cases. They are allowed where a party is wrongfully put off a train: 3 Sutherland on Damages, 259; in actions for breach of promise of marriage; in actions for slander and libel: Terwilliger v. Wends, 17 N. Y. 54; 72 Am. Dec. 420; in actions for malicious arrest and prosecution; Fisher v. Hamilton, 49 Ind. 341; in actions for false imprisonment: Stewart v. Maddox, 63 Ind. 51; for ille gally suing out an attachment: Byrne v. Gardner, 33 La. Ann. 6; for crim. con. and for seduction; and in other cases. Damages for injured feelings were also allowed where a conductor kissed a female passenger against her will: Craker v. Chicago etc. R'y Co., 36 Wis. 657; 17 Am. Rep. 504. In actions by a father for seduction of a daughter, by a fiction of law the damage is laid per quod servitium amisit, but the recovery is generally out of all proportion to any possible valuation of the services; and it is well understood that in fact compensation is not given for them, but for the wounded and outraged feelings of the parent. We see, therefore, no reason why the doctrine of compensation for injury to feelings should not embrace a case like the one before us.

When a passenger, while traveling on the cars, is injured by a collision or other negligence, though there is a breach of

the contract of safe carriage, yet the plaintiff can elect to hold the carrier liable in tort for the negligence which caused the injury: Wood v. Milwaukee etc. R'y Co., 32 Wis. 398; Craker v. Chicago etc. R'y Co., 36 Wis. 657-675; 17 Am. Rep. 504,

and cases cited.

By analogy, when there is an injury caused by negligence and delay in the delivery of a telegram, the party injured is entitled to sue in tort for the wrong done him. In Stuart v. Western Union Tel. Co., 66 Tex. 580, 59 Am. Rep. 623, it is said: "We have no forms of action or technical rules which can prevent a plaintiff, upon a statement of the facts of his case, from recovering all the damages shown to be sustained. If the facts stated show a breach of contract, and also that the breach is of such a character as to authorize an action of tort, all the damages for the thing done or omitted, either ex contractu or ex delicto, may be recovered in the one action." To the same effect, Galveston etc. R'y Co. v. Levy, 59 Tex. 547; 46 Am. Rep. 269; and Wadsworth v. Western Union Tel. Co., 86 Tenn. 695; 6 Am. St. Rep. 864.

It seems to us that this action is in reality in the nature of tort for the negligence, and that, as is usually the case in such actions, the plaintiff is entitled to recover, in addition to nominal damages, compensation for the actual damages done him, and that mental anguish is actual damage.

It is very truthfully and appropriately remarked by a learned author that "the mind is no less a part of the person than the body, and the sufferings of the former are sometimes more acute and lasting than those of the latter. Indeed, the suffer. ings of each frequently, if not usually, act reciprocally on the other": 3 Sutherland on Damages, 260. And Cicero (who certainly may be quoted as an authority among lawyers) says, in his Eleventh Philippic against Anthony, "Nam quo major vis est animi quam corporis, hoc sunt graviora ea quæ concipiuntur animo quam illa quæ corpore." "For as the power of the mind is greater than that of the body, in the same way the sufferings of the mind are more severe than the pains of the body."

The difficulty of measuring damages to the feelings is very great, but the admeasurement is submitted to the jury in many other instances, as above stated; and it is better it should be left to them, under the wise supervision of the presiding judge, with his power to set aside excessive verdicts, than, on account of such difficulty, to require parties injured in their feelings