No

rule is a wise one it is needless to say, so long as it is a well recognized rule of law, supported by authoritative decisions. matter, then, how great our aversion to damages for injuries of so unsubstantial and shadowy a character, we must recognize the fact, that the principle of their allowance intertwines the entire fabric of the law of damages. To be consistent at least we should be willing to extend the rule to all cases, where it has application. If not, we are confronted with the other alternative, to favor the aboli. tion of compensatory damages for mental suffering in all cases, and who would not say at once that "returning were far more difficult than going over."

A Cause of Action Necessary.-Have we then a cause of action in the present case? To constitute a cause of action there must be a wrong and an injury,—a violation of a right, whether created by contract or given by positive law, and a resulting damage either actual or presumed. Besides, whenever a legal right is infringed, the law presumes some injury and gives nominal damages to protect the right; for it is a familiar maxim, that whenever the law gives a right,

Tel. Co., 39 Kan. 93; Aiken v. Tel. Co., 5 S. C. 358; Elwood v. Tel. Co., 45 N. Y. 549; Tel. Co. v. Dryburg, 35 Pa. St. 298; Tel. Co. v. Adams, 75 Tex. 531; Harkness v. Tel. Co., 73 Iowa, 190; Tel. Co. v. Carew, 15 Mich. 525.

5 Cases other than against telegraph companies where mental anguish is an element of damage: 3 Suth. Dam. 259, § 260; Abduction: Stowe v. Heywood, 7 Allen, 113; Magee v. Holland, 27 N. J. L. 86; Seduction: Weaver v. Bachert, 44 Am. Dec. 159, 178; Cooley, Torts § 231; Assault and Battery: Welch v. Ware, 32 Mich. 77; Craker v. C. & N. W. Ry. Co., 36 Wis. 657; Libel and Slander: Terwilliger v. Wands, 17 N. Y. 54; Scripps v. Reilly, 38 Mich. 10; Rep. Pub. Co. v. Mosman, 15 Colo. 399; Eaves Dropping: Cooley, Torts (2d ed.), 69, 70; Ejection of Passenger: Wilson v. Mo. Pac. R. Co., 5 Wash. 621; Mo. Pac. R. Co. v. Martino, 2 Tex. Civ. App. 634; Bass v. C. & N. W. Ry. Co., 36 Wis. 450; Breach of Promise: Wells v. Padgett, 8 Barb. 323; Tobin v. Shaw, 45 Me. 331; Bird v. Thompson, 96 Mo. 424; Burnham v. Cornwell, 63 Am. Dec. 545; Illegal Attachment: Byrne & Co. v. Gardner & Co., 33 La. Ann. 6; Mutilation of Corpse: Larson v. Chase, 47 Minn. 307; Meagher v. Driscoll, 99 Mass. 281; Shipping of Corpse: Hale v. Bonner, 82 Tex. 33; Renihan v. Wright, 125 Ind. 536; Future Suffering: Feeney v. Long Island K. Co., 116 N. Y. 375; Kissing of Female: Craker v. C. & N. W. R. Co., 36 Wis. 657; Spitting in Face: Draper v. Baker, 61 Wis. 460; Bite of Dog: Robinson v. Marino, 3 Wash. 434; Malicious Prosecution: Willard Holmes, 21 N. Y. S. 998; Fisher v. Hamilton, 49 Ind. 341; False Imprisonment: Hewlett v. George, 68 Miss. 682; Stewart v. Maddox, 63 Ind. 51; Ball v. Horrigan, 19 N. Y. S. 913; Personal Injury: Johnson

V.

6

it always gives a remedy for the violation of that right. When a legal right has been violated a man is not thrown out of court, even if at the trial it appears that actual advantage instead of loss has resulted to the plaintiff. The defendant cannot take advantage of his own wrong in that way. If a man is assaulted by another, even though no injury whatever be shown, the law says he is entitled to nominal damages, because the legal right of security of person has been violated. A message containing a direction to buy wheat, deliverable at a future time stated, through negligence was not delivered. The market price of wheat, however, turned out to be less on the day specified in the message than on the day when it should have been delivered. Thus there was not only no damage, but the sender was actually saved from the loss which would have accrued, if the message had been delivered and acted upon. But the telegraph company could not take advantage of this fact. Why? Because a legal right had been infringedthe right of the sender to have care and diligence used in the transmission and delivery of his message, and for that he was entitled to nominal damages. It is well to remember that the negligence of a telegraph company in such a case differs essentially from a case of ordinary negligence between individuals, as where A through reckless driving injures B. In the former case no injury need be shown-it is presumed; while in the latter special damage must be alleged and proven in order to show a cause of action. In the latter case, neither by contract nor by positive law, was a duty fixed upon the defendant to do for the plaintiff's sole protection any specific act. In other words, the defendant in such cases does not render himself liable by negligence alone, as does the telegraph company in the case supposed. In telegraph

8

v. Wells, Fargo Co., 6 Nev. 230; Seger v. Town of Barkhamsted, 22 Conn. 298; Forcible Entry: Bonelli v. Bowen, 70 Miss. 142; Fright caused by Negligence of Common Carrier: Purcell v. St. Paul City R. Co., 48 Minn. 134; Bell v. Gt. N. Ry. Co., 26 L. R. (Ireland) 428, as contra, Ewing v. P., C. & St. L. Ry. Co., 147 Pa. St. 40, and Victoria Ry. Co. v. Caultas, 13 L. R. App. C. 222 (1888).

6 1 Suth. Dam. §§ 2, 10, pp. 2, 21; Young v. Tel. Co., 107 N. C. 370, 374; Chapman v. Tel. Co., 90 Ky. 265, 12 Ky. L. R. 265, 267; Larson v. Chase, 47 Minn. 307, 310. 7 Murphy v. Fond du Lac, 23 Wis. 365. 81 Suth. § 10, p. 20; Hibbard v. Tel. Co., 33 Wis.

558.

T

cases and in cases against common carriers for a breach of their contract of carriage, the law permits a tort action, and the breach of the obligation entered into with the individual is the gist of the action. In the ordinary negligence case, not pertaining to contract, the damage itself is the gist of the action, and no cause ensues when no actual damage aside from mental suffering can be shown. Here, then, comes in the distinction between an element of damage and a ground of action to which attention has been called, and explains why mere fright alone caused by the negligence of another, a case which our opponents delight to hurl at us, is not sufficient to sustain a cause of action, while in other cases it is let in as an element among other damages. This distinction is vital and must always be borne in mind. To repeat, then, a telegraph company, by reason of its franchises and privileges and by reason of the public nature of its employment, is under a public duty to promptly transmit and deliver a plain and decent telegram, and when it accepts the usual toll, and undertakes to send and deliver the message, a contractual relation springs up between the company and the party in interest, for a breach of which the law allows nominal damages, besides the price paid for the telegram, if plaintiff has paid the same. Therefore, the cause of action is complete when the breach of this public duty is shown, whether actual, pecuniary or other damage appears or not. You prove your contract by offering the telegram, and then show the negligence in transmission or delivery and the court entertains your suit. If no damage whatever is shown, pecuniary, mental or otherwise, the law presumes and gives nominal damages in order to preserve to the individual the legal right to have that duty performed. It matters not that the contract may be waived and the tort sued upon. The change of remedy which the law permits does not militate against the cause of action, but only affects the rule of dam

ages.

Mental Anguish as an Element of Damage in Actions of Tort.-Having a cause of action, then, let uscome to the question now of compensatory damages. We have already said that the law allows for mental injuries in a proper case. If there is still doubt of this

Logan v. Tel. Co., 84 Ill. 468.

proposition, we refer to a leading text book.10 Mr. Sedgwick specifies the kinds of mental injuries, which may be compensated; and mental anxiety and mortification are included in the list." It will also be seen that the law allows damages for mental injuries, when such injuries are the only ones proven, without evidence of the slightest, actual, pecuniary loss or physical injury, e. g., in an action for libel, where the defamation is actionable per 8e.12 In such case actual damage to reputation may not be in evidence and injury to feeling only be proven; still the law presumes the damage to reputation to sustain the cause and allows compensation in full for the mental suffering alone.18 Nor is it an answer to say that these are cases of wantonness or malice, for the damages were compensatory and not exemplary, and compensatory damages aim to amend the injury sustained and not to punish the wrongdoer. I ask, then, in the name of common sense or justice either, why should damages be allowed to compensate the injury in such cases where the only injury is purely mental and not in the telegraph case in question, where just as truly a cause of action exists as well, and the only damage is mental suffering?

The Rule of Damages in Tort.-Such mental anguish then being a proper element in a proper case, whether alone or accompanied by other injury, the only remaining requirement is that such damage should conform to the rule of damages generally. This rule in tort actions is that damages must be the direct, proximate and natural result of the wrongful act.14 In other words, "the wrongdoer is answerable for all the injurious consequences of his tortious act which according to the usual course of events and general experience, were likely to ensue and which therefore when the act was committed he may reasonably be supposed to have foreseen and anticipated."15 Why then should an injury to the feelings, which is as real and often more injurious than a physical one, be ex

10 1 Sedg. Dam. § 39 (8th ed.), and § 43, and cases cited.

11 1 Sedg. on Dam. (8th ed.), § 47.

12 Republican Pub. Co. v. Mosman, 15 Colo. 399. 13 See also Craker v. C. & N. W. R. R., 36 Wis. 657, and Larson v. Chase, 47 Minn. 307.

14 Larson v. Chase, 47 Minn. 312.

15 1 Suth. Dam. § 45, p. 92; Wadsworth v. Tel. Co. 86 Tenn. 695, 700.

mitted without question. In his enumeration, however, he admits that in a proper case, mental suffering is a subject of compensation, even if unaccompanied by physical injury or pecuniary loss, as might readily happen in the third class mentioned. It is interesting to note, too, that about the only class of torts which he has omitted in his third classification are those in which special damage must be proven to sustain a cause of action. In the classes he mentioned a cause of action exists, irrespective of the mental injury. To which group then shall we add the telegraph cases? To those in which special damages must be alleged and proven to give a cause of action or do they belong in Judge Cooper's list among the torts where a cause of action exists, independent and irrespective of the mental suffering with special damage first being shown? Clearly the latter. If this be true and our reasoning correct, how is our position a departure from long-established and universal principles? To prove it an innovation they cite among others a number of dicta from personal injury cases; and to them we give our fullest approval when applied to the cases with respect to which they are made. But they are applicable peculiarly to those cases of negligence we have spoken of, where physical injury is the sole ground of the action, and without which the action will not lie at all. Our opponents here confuse as they so often have done, mental suffering as a ground of action and mental suffering as an element of compensatory damage. They state in most instances a right rule of law but give a wrong reason for the rule.19 For instance they delight to repeat the authority of Lynch v. Knight,20 and Wyman v. Leavett, so much so that these have become recognized as leading cases against recovery for mental anguish alone. And yet, while many able judges have relied upon them as maintaining the opposite proposition, we cannot regard their views as authoritative unless communis error facit jus. Their opinions apparently all rest upon a misconception of Lord Wensleydale's meaning in the English case above where he said: "Mental pain or anxiety the law cannot value and does not pretend to redress, when the unlawful act

19 Larson v. Chase, 47 Minn. 312.

*9 H. L. Cases, 598.

* 71 Me. 227.

in

ex

complained of causes that alone; though where a material damage occurs and is connected with it, it is impossible a jury, in estimating it, should altogether overlook the feelings of the party interested." This we maintain is sound, but must be read in connection with the case, when the meaning becomes clear. The case was an action of slander, brought for an imputation on the plaintiff's chastity. The decision was, that such an imputation was not actionable per se and as no special damage aside from mental injury had been shown it failed. There was no cause of action. The case can be no authority for the proposition, that, notwithstanding we have a cause of action, mental suffering alone, if the natural and proximate result of the actionable wrong, is never a proper subject of compensation. In the Maine case there again was no cause of action. The complaint alleged neglig blasting rock and no damage was sh cept the fright and mental anxiety of the plaintiff for the welfare of others. The case was properly thrown out of court. Many such cases have been cited to show that no recovery can be had for mental suffering whenever a distinct element of damage, when in reality they only showed either that mental anguish alone is not a ground of action or that the mental suffering was not the reasonable and proximate result of the actionable wrong. 22 We apprehend that the elaborate reasons assigned by Judge Lurton why such damages cannot sustain a cause of action are also true in point of fact. He has given the true reason why the law was cautious against entertaining suits, where no legal right was infringed and only mental injury resulted. But we are not discussing mental anguish as an independent cause of action. Judge Lurton may be opposed to allowing compensation for mental injury in all cases. But we must accept the law as it is, when supported by overwhelming authority. We may deplore the fact that such damages were ever allowed

22 Cases illustrating that mental anguish alone will not sustain a cause of action etc.: Lynch v. Knight, 9 H. L. C. 577, 598; Wyman v. Leavitt, 71 Me. 227; Clinton v. Laning, 61 Mich. 355; Bovee v. Town of Danville, 53 Vt. 183, 190; Hirshfield v. Ft. Worth Nat. Bank, 83 Tex. 452; Allsop v. Allsop, 5 Hurlst. & N. 534; Owen v. Heuman, 1 Watts & S. 548; Fox v. Borkey, 126 Pa. St. 164; Lehman v. City Ry. Co., 47 Hun, 255; Keyes v. Ry Co., 36 Minn. 290, 293; Ferguson v. Davis Co., 57 Iowa, 601.

at all or we may go to the other extreme and criticise the policy, which compels the law of torts to lag behind the law of damages and regards some elements of compensation as insufficient to ground a suit upon. But we are dealing with the existing state of the law and that is clearly this: Whenever a man has a good cause of action, the law permits all the surrounding circumstances to go to the jury to enable them to reach as just a verdict as man, with his imperfect faculties, may render. They say you can neither demonstrate the existence, nor prove the extent of, nor adequately compensate the injuries to the mind. How then is it done in breach of promise cases, where injured affections play so important part? How is it done in the other cases mentioned by Judge Cooper. Plainly the law says: "This is a matter for the jury." We cannot alter the fact.

Ces of Wantonness and Malice.-This brings us to the cases of wantonness and malice. When we call attention to the Craker Case in Wisconsin or mention the case of assault without physical contact or again the case of false imprisonment without actual restraint, we are told that here is a violation of the person, carried even to the extent of malice or wantonness. But this blank assertion assigns no reason. It only insinuates that such damages are necessary in this case to punish the wantonness. But this would imply exemplary damages. What then becomes of the rule that exemplary damages are not allowable unless they are supported by compensatery damages? The law says exemplary damages cannot rest back upon nominal damage merely. But the violation. of the person alone, without some damage either to body or mind or purse, for which compensation might be allowed, would only permit nominal damages. The fact is the entire verdict in the Craker case was compensatory. So it was in the Minnesota case. 23 Furthermore, Massachusetts, New Hampshire, Colorado and certain other States allow no exemplary damages in any case, and yet they give substantial verdicts for cases of wantonness and malice like those just mentioned. Surely here too the damages must be purely compensatory. Compensatory of what? Nothing unless it be the aggravated injury

23 Larson v. Chase, 47 Minn. 307.

to the mind. Says Judge Campbell:24 "When the law gives an action for a willful wrong, it does it on the ground that the injured person ought to receive pecuniary amends from the wrong-doer. It assumes that every such wrong brings damages upon the sufferer and that the principal damage is mental and not physical. And it assumes further that this is actual and not metaphysical damage and deserves compensation."25 But even in this class of cases, our theory that there must be a cause of action is correct. For to make it actionable the wantonness or malice must have taken effect upon the person, property or some other legal interest of the plaintiff, for malice alone without such effect does not give a cause of action, no matter how ag. gravated the injury to the feelings. The only cases in the books to our knowledge, which do not allow damages for mental suffering, when the direct and natural result of a wrong and when a cause of action otherwise exists are two in number, action for death by wrongful act and actions for dam ages resulting from the sale of intoxicating liquors. But both arise under special statutes, which have been given a certain interpretation by the courts. As they are actions that did not exist at the old common law, they only help to prove the rule. We think, then, that Judge Cooper's summary is incomplete and approve rather the summary of Judge Slayton.26 He says, "the cases in which damages have been allowed for mental distress * the mental distress was the incident to a bodily injury suffered by the distressed person, or cases of injury to reputation or property, in which pecuniary damage was shown, or the act such that the law presumes some damage however slight, from the act complained of." If this were not the right rule no damages could be recovered in the case of unlawful mutilation of a dead body. No money has been lost, no physical injury sustained, and to say the act was maliciously done, does not go far enough, for that alone will not give an action. It depends here entirely upon the nature of the act done. The absolute property right in the corpse has been violated, a legal right has

24 Welsh v. Ware, 32 Mich. 77, 84.

25 See also, Hawes v. Knowles, 114 Mass. 518. 26 59 Tex. 563, 568, cited with approval by Judge Gantt in Connell v. Tel. Co., 116 Mo. 34.