contract or perhaps as a tort, either of which in itself is not a grave matter and would ordinarily produce little more than nominal damages. But a cause of action is thus given, and if to this cause of action may be added damages for the mental suffering produced, an important verdict is likely to be returned by a jury. But the great majority of courts hold that even with the existence of a right of action for failure to deliver a telegram, there may not be added to this cause of action damages for mental suffering either by the one sending or the person to whom the telegram was directed, because of the failure to deliver it.2

41. Mental suffering connected with actionable wrong. In other matters courts have frequently held that where plaintiff could establish a cause of action with which mental suffering was connected or which arose from the act constituting the cause of action, damages for mental suffering could be recovered. Thus in Meagher v. Driscoll, plaintiff proved that defendant had wrongfully removed the remains of plaintiff's deceased child from his burial lot. The court held that the natural injury to plaintiff's feelings might be taken into consideration by the jury in estimating damages against defendant. The trespass was in itself an actionable tort and to the damages in this action, the court said, should be added the injury to plaintiff's feelings, even though

2 Wadsworth v. Western Union Tel. Co., 86 Tenn. 695, permitting recovery of damages for mental suffering because of defendant's failure to deliver a telegram, and Western Union Tel Co. v. Rogers, 68 Miss. 748, refusing such recovery, strongly present the conflicting views on this subject.

3 99 Mass. 281.

the injury done to the property was comparatively trifling. So in Merest v. Harvey, the court sustained a verdict against defendant for £500 for trespassing upon plaintiff's premises and using insulting and abusive language toward plaintiff, although no perceptible injury was done to the land.

While the rule permitting exemplary damages was applicable here and might have justified so large a verdict the court evidently sustained it also on the theory that plaintiff was entitled, in connection with his cause of action for trespass, to recover for indignity and injured feelings.5

42. May be proper in actions on contract.-The cause of action in which damages for mental suffering may be proven may arise in contract as well as in tort, although in most cases for breach of contract evidence of mental suffering will not be admitted. But in an action for breach of marriage contract, mental suffering of plaintiff may be proven and considered by the jury.

6

Referring to the principle on which the cases are based which do permit evidence of mental anguish in actions ex contractu, the court in Renihan v. Wright said: "The cases rest upon the reasonable doctrine that where a person contracts, upon a sufficient consideration, to do a particular thing, the failure to do which may result in anguish and distress. of mind on the part of the other contracting party, he is presumed to have contracted with reference to the payment of damages of that character, in the

45 Taunt. 442.

Vogel v. McAuliffe, 18 R. I. 791, 31 Atl. Rep. 1. 6125 Ind. 536.

event such damages accrue by reason of a breach of contract on his part.'

997

43. Recovery in cases of injury without personal impact.-Evidence of mental anguish has always been held admissible in cases of assault or false imprisonment, even though there was no touching of plaintiff by defendant and no physical injury resulting from the wrong, because the tort was actionable in itself. This rule applies to all actionable wrongs.

Where a willful wrong which is not in itself actionable, produces fright or mental anguish which results in physical injury to plaintiff, damages may be recovered which include those for mental anguish. Wilkinson v. Downton (1897)" is a good illustrative case. Plaintiff's husband, on the day of the injury complained of, had gone to a race-meeting. In the evening defendant went to plaintiff's house and, by way of a practical joke, informed her that her husband had met with a serious accident whereby both his legs were broken.

The statement was false, but plaintiff believed it to be true, with the result that she thereby received a severe nervous shock, from which she became seriously ill and suffered great mental anguish for many weeks. The court permitted evidence of her mental suffering to be considered by the jury and a verdict for £100 was given as compensation for plaintiff's illness and suffering. It was insisted that since

7 Parker v. Forehand, 99 Ga. 743; Robinson v. Craver, 88 Ga. 381; Kurtz v. Frank, 76 Ind. 594, LEADING ILLUSTRATIVE CASES.

8 Kline v. Kline, 158 Ind. 602; Kead v. Garrison, 13 O. C. C. Rep. 447; Gibney v. Lewis, 68 Conn. 392.

92 Q. B. 57, LEADING ILLUSTRATIVE CASES.

the practical joke was not in itself an actionable wrong there was nothing on which the claim for mental anguish could be based. But the court permitted the verdict to stand, on the ground that where fright results in physical injury such as here shown this in itself constitutes a good cause of action.

While upon this proposition there is great conflict of authority, and in point of number perhaps a majority of the courts hold a view contrary to the rule for which this case stands, yet it is difficult to discover a distinction in principle between those cases where injury is inflicted through physical agencies, or in connection with slight physical impact, and physical injury on the other hand which results from a mental shock as a result of fright or other nervous disturbance. Indeed, the better reasoning is found in the cases which hold that where a physical injury results from a fright or mental disturbance, caused by the wrongful act of another, whether done willfully or only negligently, the injured person may recover compensation for the damages thus sustained.10

44. Same subject-The public policy view.-Numerous authorities can be cited on the other side of this question. A sufficient list of them may be found in the case of Miller v. Railroad Co.,11 where the question is fully discussed, and where the court holds that no liability exists for acts of negligence

11

10 Purcell v. St. Paul City Ry. Co., 48 Minn. 134; Mack v. South Bound R. R. Co., 52 S. C. 323, 68 Am. St. Rep. 913; Sloane v. Southern Cal. Ry. Co., 111 Cal. 668; Bell v. Railway, 26 L. R. 428; Fitzpatrick v. Railway U. C. C. B. 645; Gulf, C. & S. F. Ry. Co. v. Hayter, 93 Texas 239, 77 Am. St. Rep. 856.

11 78 O. St. 309.

causing mere fright or shock unaccompanied by physical injury, even though severe illness results. The reasons given for this holding are the usual ones found in the decisions sustaining this view, namely, that to hold otherwise would be against public policy, in that it would tend to open up a flood of litigation consisting of feigned injuries and speculative damages resting on mere conjecture.12 The court does not inform us why mental suffering, pain and anguish could not as readily be feigned where in connection therewith there was a slight physical injury, or an assault without impact, a libel or slander, or even a trespass upon property, in each of which cases damages for mental anguish are always provable; nor why in such cases the damages for pain and anguish are not speculative in the same degree as in the case before the court.

In Honicins v. Boston Elevated Ry.13 it was shown that plaintiff was in one of defendant's cars when a collision occurred throwing plaintiff against a seat, she receiving only a slight blow, and no perceptible physical injury. But she had a nervous shock which was followed by suffering of a hysterical nature and the principal question was whether damages could be recovered for this mental suffering. Chief Justice Holmes, in rendering the decision sustaining such recovery, said that it is an arbitrary exception based upon a notion of what is practicable, that prevents a recovery for physical illness resulting from nervous shock alone. He further said: "Recogniz

12 Mitchell v. Rochester Ry. Co., 151 N. Y. 107.

18 180 Mass. 456.