MENTAL SUFFERING

mental suffering is the natural and prox- imate result of a tort or of a breach of con- tract it is a proper subject of compensa- tion, but standing alone it will not support an action of which actual damages is the basis; Hale, Dam. SS 39, 40. It was the common-law rule that mental suffering unconnected with physical injury or other element of damage to person or property, is not a cause of action for which damages may be recovered; 68 Miss. 748; L. R. 10 Q. B. 122; 9 H. L. Cas. 577; 13 App. Div. N. Y. 253; 116 Mo. 34; 61 Mo. App. 586; 48 La. Ann. 1431; 85 III. 331 ; 27 Kan. 544; 6 Nev. 224; 18 R. I. 791; 3 Dak. 315; 32 Fla. 434. This continues to be the prevailing rule with respect to all actions upon contracts of which the consideration is something having a specific value in money. In such cases mental suffering is treated as not being within the limitations of the doctrine of proximate cause and natural conse- quence as settled in Hadley v. Baxendale, 9 Excheq. 341; 6 Tex. Civ. App. 755; 2 id. 322; 107 Ν. C. 449. A line of cases contra is based upon a decision in 55 Tex. 308.

which has been followed in several states; 99 Ala. 510; 111 id. 135; 86 Tenn. 695; 128 Ind. 294; 97 Tenn. 638; 77 Ia. 54; 71 Mo. 66; 11 Tex. Civ. App. 699; but the doctrine of these cases has been the subject of severe criticism. In 68 Miss. 748, Cooper, J., said: "The rapid multiplication of cases of this char- acter in the state of Texas, since the case of So Relle, indicates to some extent the field of speculative litigation opened up by that decision .. Ken- tucky, Tennessee, Indiana, and Alabama have but recently established the rule, the dangers and dif- ficulties of which are becoming apparent in Texas, the intolerable litigation invited and appearing in Texas has not yet fairly commenced in those states. It will, however, appear in due time, and the courts will be forced to resort to refined limitations, as Texas has done, to restrict it We prefer the safety afforded by the conservatism of the old law, as we understand it to be, and are of the opinion that no recovery for mental suffering can be had in this case." The federal courts uniformly deny the right to recover damages in such cases: 44 Fed. Rep. 554; 54 id. 634; 55 id. 603; 59 id. 433: 57 id. 471. In the case last cited Pardee, J., after discussing the authorities, said: "The general rule that mental anguish and suf- ferings, unattended by any injury to the person, resulting from simple actionable negligence, can- not be sufficient basis for an action for the recovery of damages, is maintained and supported by an un- broken line of English authorities, by the conceded state of the general law prior to the So Relle Case, 55 Texas, 308 (1881), and by the uniform decisions of the federal courts and decisions of the supreme courts of Nevada, Dakota, Kansas, Maine, Missis- sippi, Georgía, Massachusetts, and by the opinions of several text writers of unquestioned standing as expounders of the law." In the latest federal case the mental suf- fering complained of was held on demurrer not to be the proximate cause of the injury, and this was said to render it unnecessary to pass upon the question whether it " is in California under any circumstances, a proper element of damages; " 73 Fed. Rep. 273. It was early settled that substantial dam- ages might be recovered in a class of actions of tort where the only injury suffered is mental, such as cases of assault without physical contact; 3 C. & P. 373; 57 Me. 202; 5 Md. 450; 45 Vt. 476; for false im- prisonment, where the plaintiff has not been touched by the defendant; 6 C. & P. 774; 4 Bing. N. C. 212; 33 III. 473; for the mutilation of a husband's body by dissec- tion; 47 Minn. 307; for wrongful or wanton removal of a child's body from a burial lot; 99 Mass. 281; for wrongful ejection from a train; 77 Ia. 543; for slander and libel; 17 N. Y. 54; for malicious prosecu- tion; 49 Ind. 341; where a conductor kissed a woman passenger against her will; 36 Wis. 657. So also in cases upon contracts, of which the consideration is not pecuniary in its nature, mental suffering has been treated as a proper basis for damages. Ex- ceptions to the general rule upon this foot- ing are, breach of promise of marriage; 102 Mass. 395; 96 Mo. 424; 47 Cal. 194; 33 Md. 288; breach of an undertaker's contract to keep safely the body of a child; 125 Ind. 536; and so also in case of an action by a wife against a railroad company for neg- ligence in transporting her husband's body; 82 Tex. 33; and by one arrested for failure to appear as a witness by reason of neglig- ence of a policeman in signing in blank a warrant of arrest containing a false recital of service of subpoena on the witness; 68 Conn. 392. Mental suffering accompanying physical pain is a subject of compensation; 4 Q. B. Div. 406; 20 How. 34; 1 Sawy. 539; 39 Fed. Rep. 315; 63 Ala. 266; 76 Ga. 311; 86 Ky. 565; 73 Ia. 241; 99 Mass. 552; 62 Barb. 364; the two cannot be disassociated; 131 U.S. 22; 92 Ala. 210. So is fright caused by apprehension of physical harm; 79 Ala. 328; or nervous shock produced by a false report of a husband's injury; [1897] 2 Q. B. 57; 73 Ia. 241; but see 47 N. E. Rep. (Mass.) 88; so loss of peace of mind and happiness; 21 Ind. 164; sense of insult or indignity, mortification or wounded pride; 5 Sawy. 107:9 id. 386: 48 Ark. 396;79 Ala. 328; 79 Ga. 358; 112 Ill. 295; sense of shame and humiliation; 32 Fed. Rep. 66; 131 Mass. 574; 119 Ind. 13; 72 Mo. 407; 36 Wis. 657. Fright alone is not, in the absence of personal injury, a ground of recovery; 147 Pa. 40; 6 Nev. 224; 60 Fed. Rep. 557; 88 Tex. 402; 31 S. W. Rep. (Тех.) 1084; though it produced a miscarriage: 47 Hun 355; 151 N. Y. 107; contra, 60 Miss. 906; 36 Wis. 596; 76 Tex. 210. See, as to fright, 14 L. R. A. 666, n. A nervous shock resulting in bodily ill- ness, and caused by another's negligence, is too remote to enter into the measure of damages; 13 App. Cas. 222; but this point is said to be generally disapproved in Eng- land; Poll. Torts 49. Even in cases where mental suffering properly

It is for the jury to decide whether the failure of a telegraph company to transmit a message whereby a physician was pre- vented from early attendance, was the proximate cause of an injury resulting from a surgical operation, there being evidence to show that the operation might have been avoided had the surgeon reached the patient earlier; 83 Fed. Rep. 992. A company is bound to use reasonable efforts to ascertain where the persons are to whom a message is sent and to deliver the same; 9 Bradw. 283. The leading principle as to delivery is that the message is to be delivered to the person primarily and not to the place, and if the person cannot be found at the speci- fied place it may be negligence for the company to leave the telegram at the place without making further efforts to find the person; Crosw. Electr. § 412; 82 Tex. 561; 89 Fed. Rep. 181. And the message should not be left at the office till called for; 62 Ind. 371. Delivery at a hotel is sufficient. If the addressee is absent from his resi- dence or place of business the company must use reasonable efforts to find him; 9 Ill. App. 283. It has been held that the delivery of a message to a telegraph company for trans- mission raises an inference that it was re- ceived by the addressee; 7 Allen 556. Where a telegraph message, sent from a place outside of the state, is to be delivered in a state, the contract between the sender and the telegraph company is to be per- formed there, and will be construed in ac- cordance with the laws of the state of de- livery; 70 Ill. App. 275. Where a telegraph operator accepts a telegram for transmission, the fact that there is no office at the place to which it is to be sent does not relieve the company from its liability for failure to transmit and deliver; 69 Miss. 659. If a telegram is ad- dressed to X, " in care of Y," the company may deliver it to Y, without being guilty of any negligence even if it fails to reach X; 77 Tex. 215; 30 S. W. Rep. 70. A telegraph company has the right to choose its own agencies for the delivery of its messages, and inay refuse to deliver telegrams by telephone and to receive telephone messages to be telegraphed; 45 N. E. Rep. (Ill.) 731. But where the com- pany permits its employes to receive, by telephone, messages for transmission, it consents to send a message so received; 49 S. W. Rep. (Tex.) 138. A telegraph company was not negligent in not delivering a warning message before the person to whom it was addressed was killed by his pursuers, where it could have delivered the message only by sending out messengers to watch for his arrival; 81 Fed. Rep. 676. A contract may be made and proved in court by telegraphic despatches; 20 Mo. 254; 41 Ν. Υ. 544; 103 Mass. 327; L. R. 6 Ex. 7; and the same rules apply in de- termining whether a contract has been made by telegrams as in cases of a contract made by letter; 36 N. Y. 307; 31 U. C. Q. B. 18; 4 Dill. 431; 20 Q. B. D. 640. Real es- tate may be leased or sold by telegram if the despatch was duly signed; 4 Bush 251, Contracts by telegraph satisfy the statute of frauds in England: Chit. Contr., 13th ed. 15. Messages are instruments of evi- dence, and are governed by the same rules as other writings: Scott & J. Telegr. § 340; the original message is said to be the best evidence: if this cannot be produced, then a copy should be produced; id. §341; see 40 Wisc. 440; 127 Ill. 652. As to which is the original, is said to "depend upon which party is responsible for its trans mission across the line, or, in other words. whose agent the telegraph company is. The first communication in a transaction, if it is all negotiated across the wires, will only be effective in the form in which it reaches its destination." 29 V. 140. See 36 Ν. Υ. 807; 40 Wisc. 440. See on this subject, an article in 14 Cent. L. J. 262. See CIPHER. The signature of a clerk of a tele- graph company to a despatch was held to be sufficient, under the statute of frauds, where the original instructions had been signed by the party; Gray, Com. by Tel. 138; 54 Md. 188; 11 Col. 108; L. R. 5 С.Р. 295. See 6 U. C. C. P. 221. or Statutes in Oregon, Washington, and Nevada provide that when any notice, in- formation, or intelligence, written otherwise, is required to be given, it may be given by telegraph, and powers of at- torney or other instruments in writing duly proved or acknowledged for record may, with the proper certificate, be sent by telegraph and the telegraph copy re- corded; and so of checks, due bills, promis- sory notes, and bills of exchange. And in the same states writs and processes in legal proceedings can be transmitted by tele- graph. Notice of issue of an injunction may be transmitted by telegraph; 18 Ch. D. 110; 59 III. 58; 85 N. J. Eq. 422. By act of congress of July 24, 1866, any telegraph company organized under the laws of any state is granted the right, under certain restrictions, to construct and operate lines through and over any portion of the publi