84

An important application has been made in cases of the negligent transmission of telegrams. In So Relle v. Western Union Tel. Co., decided in 1881, the Supreme Court of Texas took the view that damages for mental suffering might be recovered when sustained through failure to deliver or delay in delivering a telegram advising the addressee of the death of a near relative, provided it appeared from the face of the telegram that mental anguish would naturally result from such failure or delay. This doctrine has been followed in a few jurisdictions with varying degrees of liberality, some applying it only to cases of illness or death, and others allowing recovery where the message related merely to social

tually accompanied by physical injury, although it may be impossible, or at least difficult, to detect the injury at the time in the living subject. I should not be surprised if the surgeon or the physiologist told us that nervous shock is or may be in itself an injurious affection of the physical organism. Let it be assumed, however, that the physical injury follows the shock, but that the jury are satisfied upon proper and sufficient medical evidence that it follows the shock as its direct and natural effect, is there any legal reason for saying that the damage is less proximate in the legal sense than damage which arises contemporaneously? 'As well might it be said' (I am quoting from the judgment of Palles, C. B., Bell v. Great Northern R. Co., L. R. 26 Ir. 432, 439) 'that a death caused by poison is not to be attributed to the person who administered it, because the mortal effect is not produced contemporaneously with its administration.' Remoteness as a legal ground for the exclusion of damage in an action of tort means, not severance in point of time, but the absence of direct and natural causal sequence the inability to trace in regard to the damage the 'propter hoc' in a necessary or natural descent from the wrongful act. As a matter of experience, I should say that the injury to health which forms the main ground of damages in actions of negligence, either in cases of railway accidents or in running-down cases, frequently is proved, not as a concomitant of the occurrence, but as one of the sequelæ." Dulieu v. White, [1901] 2 K. B. 669, 677, 70 L. J. K. B. 837, 85 L. T. Rep. N. S. 126, 50 Wkly. Rep. 76, per Kennedy, J. And see Watson v. Dilts, 116 Iowa, 249, 89 N. W. 1068, 57 L. R. A. 559, 93 Am. St. Rep. 239. Spearman v. McCrary, 4 Ala. App. 473, 58 South. 927; HICKEY v. WELCH, 91 Mo. App. 4, Chapin Cas. Torts, 39.

84 55 Tex. 308, 40 Am. Rep. 805.

85 Western Union Tel. Co. v. Westmoreland, 151 Ala. 319, 44 South. 382; Western Union Tel. Co. v. McCaul, 115 Tenn. 99, 90 S. W. 856.

matters, as an appointment to meet on the arrival of a train.36 But the Texas view has been repudiated by a majority of the courts.37

It may also be added that a distinction has been recognized by some of the courts, which generally refuse to consider mental anguish, standing by itself, as sufficient, but which make an exception in cases where the defendant has been guilty of a willful wrong as distinguished from negligence.88

INTERVENTION OF VOLUNTARY ACT OR
NEGLECT

29. Intervention of a voluntary act or neglect will break the chain of causation, unless it should have been foreseen by the wrongdoer.

Unforeseeable Intervention

It is evident that where a voluntary agent has interposed between the wrong and the damage, the law can go no further. The intervening factor must necessarily be regarded as the proximate cause. For example, I slander A. in a conversation with B., or send to B. a libelous letter concerning A. These are acts for which A. may hold me responsible. But, generally speaking, I will not be liable for any repetition by

36 Green v. Western Union Tel. Co., 136 N. C. 489, 49 S. E. 165, 67 L. R. A. 985, 103 Am. St. Rep. 955, 1 Ann. Cas. 349; Postal Tel. Cable Co. v. Terrill, 124 Ky. 822, 100 S. W. 292, 14 L. R. A. (N. S.) 927.

37 Francis v. Western Union Tel. Co., 58 Minn, 252, 59 N. W. 1078, 25 L. R. A. 406, 49 Am. St. Rep. 507; Connell v. Western Union Tel. Co., 116 Mo. 34, 22 S. W. 345, 20 L. R. A. 172, 38 Am. St. Rep. 575; Curtin v. Western Union Tel. Co., 13 App. Div. 253, 42 N. Y. Supp. 1109; Morton v. Western Union Tel. Co., 53 Ohio St. 431, 41 N. E. 689, 32 L. R. A. 735, 53 Am. St. Rep. 648; Connelly v. Western Union Tel. Co., 100 Va. 51, 40 S. E. 618, 56 L. R. A. 663, 93 Am. St. Rep. 919.

38 Williams v. Underhill, 63 App. Div. 223, 226, 71 N. Y. Supp. 291; HICKEY v. WELCH, 91 Mo. App. 4, Chapin Cas. Torts, 39; Kline v. Kline, 158 Ind. 602, 64 N. E. 9, 58 L. R. A. 397. In Wilkinson v. Downton, [1897] 2 Q. B. 57, 66 L. J. Q. B. 493, 76 L. T. Rep. N. S. 493, 45 Wkly. Rep. 525, defendant, intending to play a practical joke,

89

B., for this is his voluntary act. So, where defendant negligently permits a pit to remain open in the highway, it is not liable to a constable thrown into it by a prisoner escaping from custody, since here "the person so intervening acts as a nonconductor, and insulates" the negligence of the defendant from the injury suffered by the plaintiff.40

41

In the foregoing cases the intervention was by a stranger; but the rule is, of course, the same where the injured party has himself interposed, as where plaintiff shot at a knothole in the wall of defendant's wooden building, containing dynamite, and thus caused an explosion, or has committed suicide in a fit of insanity caused by a wreck on defendant's road.42 The principle also holds good where there is no intervening act, but a mere omission to perform a duty recognized by law, as where plaintiff has improperly failed to exercise care to lessen the damage; for example, being aware that a fire upon adjoining property is likely to spread to his own, he omits to take reasonable precautions to prevent it from spreading,13 or, knowing of the unlawful removal of his fence, he neglects

falsely stated to plaintiff that the latter's husband had met with a serious accident, by which both of his legs were broken. Plaintiff was permitted to recover for a violent nervous shock, which rendered her ill. Contra, St. Louis, I. M. & S. Ry. Co. v. Taylor, 84 Ark. 42, 104 S. W. 551, 13 L. R. A. (N. S.) 159.

39 Elmer v. Fessenden, 151 Mass. 359, 24 N. E. 208, 5 L. R. A. 724; Hastings v. Stetson, 126 Mass. 329, 30 Am. Rep. 683; Terwilliger v. Wands, 17 N. Y. 54, 72 Am. Dec. 420; Ward v. Weeks, 7 Bing. 211, 4 M. & P. 796.

40 ALEXANDER v. TOWN OF NEW CASTLE, 115 Ind. 51, 17 N. E. 200, Chapin Cas. Torts, 44. For illustrations showing a voluntary unforseeable intervention, see Kleebauer v. Western Fuse & Explosives Co., 138 Cal. 497, 71 Pac. 617, 60 L. R. A. 377, 94 Am. St. Rep. 62; Booth v. Sanford, 52 Conn. 481; Tutein v. Hurley, 98 Mass. 211, 93 Am. Dec. 154; Leeds v. New York Tel. Co., 178 N. Y. 118, 70 N. E. 219; Vickers v. Wilcocks, 8 East, 1, 103 Eng. Repr. 244.

41 McGhee v. Norfolk & S. R. Co., 147 N. C. 142, 60 S. E. 912, 24 L. R. A. (N. S.) 119.

42 Scheffer v. Washington City, V. M. & G. S. R. Co., 105 U. S. 249, 26 L. Ed. 1070.

43 Haverly v. State Line & S. R. Co., 135 Pa. 50, 19 Atl. 1013, 20 Am. St. Rep. 848.

to repair, and cattle enter and eat the crops, or, having received personal injuries, he unreasonably fails to consult a physician or to follow the latter's advice. 45

Foreseeable Intervention

To the rule that the voluntary intervention of a responsible individual will exonerate a preceding wrongdoer we must note an exception in cases where "it was the duty of the original wrongdoer to anticipate and provide against such intervention, because such intervention was a thing likely to happen in the ordinary course of events." 40

Thus, as has been seen, while the original defamer is not ordinarily liable for the repetition of his words, he will be responsible if their first utterance was under such circumstances that the repetition was reasonably to be foreseen. So, where defendant left a horse and cart standing in the street, with no one to watch, he was held liable for the damage done by them, although occasioned by the act of a passer-by, who struck the horse; and a similar result was reached where defendant's servants negligently left a signal torpedo on its railroad track, and a boy picked it up and in playing with it caused it to explode and injure plaintiff, another boy.**

Such a case was Clark v. Chambers, 50 where defendant had unlawfully placed a barrier set with spikes across a private

44 He can, of course, recover for the original removal, though not for the value of the crops. Loker v. Damon, 17 Pick. (Mass.) 284. 45 His own negligence is the proximate cause of such consequences as are found to be the reasonable result of his failure. Schmidt v. Mitchell, 84 Ill. 195, 25 Am. Rep. 446; Sullivan v. Tioga R. Co., 112 N. Y. 643, 20 N. E. 569, 8 Am. St. Rep. 793; Sauter v. New York Cent. & H. R. R. Co., 66 N. Y. 50, 23 Am. Rep. 18. And see infra, p. 539.

46 Stone v. Boston & A. R. Co., 171 Mass. 536, 540, 51 N. E. 1, 41 L. R. A. 794, per Allen, J.

47 Zier v. Hofflin, 33 Minn. 66, 21 N. W. 862, 53 Am. Rep. 9; Allen v. Wortham, 89 Ky. 485, 13 S. W. 73; State v. Lund, 80 Kan. 240, 101 Pac. 1000. See infra, p. 299.

48 Illidge v. Goodwin, 5 C. & P. 190, 24 E. C. L. 520.

49 Harriman v. Pittsburg, C. & St. L. Ry. Co., 45 Ohio St. 11, 12 N. E. 451, 4 Am. St. Rep. 507.

50 Clark v. Chambers, 3 Q. B. D. 327, 47 L. J. Q. B. 427, 38 L. T. Rep. N. S. 454, 26 Wkly. Rep. 613.

road and a third party removed it, setting it across an adjoining footpath. On a dark night plaintiff, walking along the footpath, encountered the barrier and was injured. The injury was held the proximate result of defendant's act."1

Involuntary Intervention

Furthermore, in order that it should be regarded as the proximate cause, the intervening act either of the injured party or of some third person should be voluntary, in the sense that it was the offspring of a mind free to choose. An involuntary act, giving to the term its enlarged meaning, will be placed in the same category as a natural force and the sequence will be preserved.52

An illustration frequently found is where a reasonable apprehension of peril has been created by defendant's wrong, and injury results from an endeavor to escape. Such a situation may assume a variety of forms. For instance, danger

51 "A man who unlawfully places an obstruction across either a public or private way may anticipate the removal of the obstruction by some one entitled to use the way. as a thing likely to happen; and if this should be done the probability is that the obstruction so removed will, instead of being carried away altogether, be placed somewhere near." Clark v. Chambers, 3 Q. B. D. 327, 338, supra, per Cockburn, J. For further illustrations, see LANE v. ATLANTIC WORKS, 111 Mass. 136, Chapin Cas. Torts, 45; Cohen v. Mayor, etc., of City of New York, 113 N. Y. 532, 21 N. E. 700, 4 L. R. A. 406, 10 Am. St. Rep. 506; Weick v. Lander, 75 Ill. 93; Smith v. New York, S. & W. R. Co., 46 N. J. Law, 7; Fishburn v. Burlington & N. R. Co., 127 Iowa, 483, 103 N. W. 481. But where a railroad company negligently allows its platform to become saturated with oil, and a careless teamster drops a lighted match, the result being the destruction of plaintiff's buildings, the company was held not to be liable, since the act of the teamster was not reasonably to have been anticipated. Stone v. Boston & A. R. Co.,

171 Mass. 536, 51 N. E. 1, 41 L. R. A. 794.

52 Thus, where a passenger has been forced unlawfully to alight from a car and walk to his destination, injuries not attributable to his negligence and suffered by reason of the walk are deemed the proximate results of the expulsion. East Tennessee, V. & G. R. Co. v. Lockhart, 79 Ala. 315; Terre Haute & I. R. Co. v. Buck, 96 Ind. 346, 49 Am. Rep. 168; Cincinnati, H. & I. R. Co. v. Eaton, 94 Ind. 474, 48 Am. Rep. 179; Gulf, C. & S. F. Ry. Co. v. Green (Tex. Civ. App.) 141 S. W. 341.