ing, as we must, the logic in favor of the plaintiff when a remedy is denied because the only immediate wrong was a shock to the nerves, we think when the reality of the cause is guaranteed by proof of a substantial battery of the person, there is no occasion to press further the exception to general rules." Logically, then, damages might be given, even where there is no impact.

45. Negligence and willfulness.-Courts make a distinction between those cases where fright resulting in bodily injury arises only from negligence, and those where the same results follow a willful act. So in Prieser v. Wielandt, defendant was held for damages in wrongfully tearing down a tenant's dwelling, resulting in fright to the wife, causing a miscarriage from which she died.14 In Williams v. Underhill defendant was held for damages in causing fright by an assault which resulted in illness and insanity, although there was no physical impact.15

In Spade v. Lynn & B. R. Co., it was held in denying recovery that damages could have been allowed if defendant's act had been willful. The court said: "The logical vindication of this rule is, that it is unreasonable to hold persons who are merely negligent, bound to anticipate and guard against fright and the consequences of fright. * 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

*

*

14 48 App. Div. 569, 62 N. Y. Supp. 890. 15 63 App. Div. 223, 71 N. Y. Supp. 291.

seduction, slander, malicious prosecution, or arrest, and some others.

9916

In Brownback v. Fraily, where plaintiff was assaulted by defendant flourishing a whip, and addressing abusive language to her, recovery was permitted. So where defendant pointed a pistol at plaintiff, threatening to shoot her,18 and so where one stealthily entered the house in the night time, and took property belonging to the husband, thus frightening the wife, damages for mental suffering were allowed.19 In Huston v. Freemansburg, no recovery was allowed for fright alone caused by a negligent act.20 But in Ewing v. P. C. C. & St. L. Ry., throwing cars against plaintiff's dwelling, inducing permanent disability by fright only, was held to be sufficient cause for the recovery of damages.21

In Mitchell v. Rochester R. Co., the court said: "Assuming that fright cannot form the basis of an action, it is obvious that no recovery can be had for injuries resulting therefrom. That the result may be nervous disease, blindness, insanity or even miscarriage in no way changes the principle. These results merely show the degree of fright or the extent of the damages. The right of action must still depend upon the question whether a recovery may be had for fright. If it can, then an action may be maintained, however slight the injury; if not, then there

16 168 Mass. 285, 60 Am. St. Rep. 393-397.

17 78 Ill. App. 262.

18 Hickey v. Welch, 91 Mo. App. 4.

19 Watson v. Dilts, 116 Ia. 249, 57 L. R. A. 559, 93 Am. St. Rep. 239.

20 212 Pa. St. 548, 3 L. R. A. (N. S.) 49.

21 147 Pa. St. 40, 30 Am. St. Rep. 709.

can be no recovery, no matter how grave or serious the consequences." 22

It is doubtful whether a distinction relating to recovery for mental suffering should be made between willful acts and merely negligent acts, as in either case plaintiff's injuries are the same, and it would seem that recovery should not be made to depend upon defendant's motive or mental attitude.

Below are given cases where damages are allowed for failure to deliver a telegram because defendant thereby broke the contract to deliver promptly. In such cases it is held that evidence of mental suffering may be introduced for the purpose of enhancing the damages.23

46. Physical injury resulting from fright.-The objections to recovery when fright or mental suffering results in physical injury, such as apoplexy, nervous prostration, paralysis, or miscarriage, seem to be illogical and unsound. But though the weight of

22 See the criticism on this opinion in Dulieu v. White & Sons (1901) 2 K. B. 669. The doctrine is sustained in St. Louis I. M. & S. R. Co. v. Bragg, 69 Ark. 402, 86 Am. St. Rep. 206; Strange v. Mo. Pac. R. Co., 61 Mo. App. 586; Spade v. Lynn & B. R. R. Co., 168 Mass. 285, 38 L. R. A. 512, 60 Am. Rep. 393; Trigg v. St. Louis, K. C. & N. R. Co., 74 Mo. 147, 41 Am. St. Rep. 305.

23 This seems to be the law in: Alabama-Western U. Tel. Co. v. Crocker, 135 Ala. 492, 33 So. 45; Arkansas-Western U. Tel. Co. v. Hollingsworth, 83 Ark. 39, 119 Am. St. Rep. 105; Iowa-Cowan v. Western U. Tel. Co., 122 Ia. 379, 101 Am. St. Rep. 268; Kentucky—W. U. Tel. Co. v. Van Cleave, 107 Ky. 464, 92 Am. St. Rep. 366; Mississippi-Magouirk v. West. U. Tel. Co., 79 Miss. 632, 89 Am. St. Rep. 663; Nevada-Barnes v. W. U. Tel. Co., 27 Nev. 438, 103 Am. St. Rep. 776; N. Carolina-Battle v. W. U. Tel. Co., 151 N. C. 629, 66 S. E. 661; S. Carolina-Brown v. W. U. Tel Co., 85 S. C. 495; Tennessee-Wadsworth v. W. U. Tel. Co., 86 Tenn. 695, 6 Am. St. Rep. 86; Texas-W. U. Tel. Co. v. Cooper, 71 Tex. 507, 10 Am. St. Rep. 772. In the other states where the question has been litigated the decisions are the other way, holding that mental suffering is not ground for damages.

authority in the past is against recovery in such cases the present tendency of the courts is toward giving just compensation for such results.

Basing their argument on the rule that there can be no recovery for fright or mental suffering alone, courts have decided therefore that no liability follows from any of their results, however serious they may be. But while it may well be held that no recovery can be had for mental suffering alone because of the speculative character of the injury, the uncertainty of the proof, and the fact that it may too readily be simulated, and fraud thereby be imposed, it does not logically follow that when all these elements are removed by a physical injury, obvious to everyone, including court and jury, the same rule should be applied.

On the other hand, it would appear that when the physical injury can be as certainly traced to defendant's wrong in these cases, as in many others, wherein the courts uniformly allow damages, there should be no difference in the law relating to them.24 The same rules of evidence apply and the same conditions precedent to recovery should be imposed; that is, that there must be proof of defendant's negligent wrong resulting in physical injury to plaintiff. When this is done, however difficult it may have been to do it, there seems only flimsy excuse in withholding just compensation for the established cause of action.

47. Evasion of the rule.-To obviate this apparent injustice some courts have sought, while re

24 Sloane v. Southern Cal. R. R. Co., 111 Cal. 668, 32 L. R. A. 193.

25

maining within the doctrine of former rulings, to find a way to hold defendant liable. It was held in Consolidated Traction Co. v. Lamberson that plaintiff could recover, on evidence showing that the wagon in which he was driving was struck by a car, on the theory that striking the wagon was to him a personal injury, although there was no physical impact or bodily injury proven except from fright. In Buchanan v. West Jersey R. Co. the plaintiff was permitted to recover because in dodging a timber projecting from a passing train she threw herself on the platform and was greatly frightened, which fright caused her bodily injury.26 So in Warren v. Boston & M. R. Co. where one by reason of fright jumped out of a wagon.27

In Berurd v. Boston & A. R. Co., the evidence showed that plaintiff was driving across a railroad when one of his horses was struck by a rapidly moving train which frightened him, causing him to jump to the ground. He was permitted to recover for the nervous shock, although he sustained no other physical injury, and there was no physical impact.28

Dulien v. White & Sons is the leading case in England bearing upon this subject. Plaintiff there was frightened and received a nervous shock which produced a premature birth of a child, resulting in physical injury to plaintiff, all caused by defendant's servant driving a team of horses into plaintiff's house. There was no physical impact with plaintiff

25 59 N. J. L. 297.

26 52 N. J. L. 265.

27 163 Mass. 484.

28 177 Mass. 179.