ening Z. with immediate bodily hurt, but not causing such hurt, produces in Z. a sudden terror or

66

nervous shock

anguish, remorse, or any other abnormal mental condition, unaccompanied by an injury to the person, cannot be estimated, and are too remote to warrant a recovery. Wilcox v. Richmond & D. R. Co., 52 Fed. Rep. 264; 3 C. C. A. 73; 8 U. S. Ap. 118; Yoakum v. Dunn, 1 Tex. Cir. Ap. 524; 21 N. W. Rep. 411; Indianapolis, etc., R. Co. v. Stables, 62 III. 313; Oliver . La Valle, 36 Wis. 598; Wyman v. Leavitt, 71 Me. 227; 36 Am. Rep. 303; Renner v. Canfield, 36 Minn. 90; 30 N. W. Rep. 435; Ewing v. Pittsburg, etc., Ry. Co., 147 Pa. St. 40; 23 At. Rep. 340; 29 W. N. C. 248; Canning v. Williamston, 1 Cush. 451; Covington Street Ry. Co. v. Packer, 9 Bush. 455; Tex. Mex. Ry. Co. v. Douglas, 69 Tex. 694; 7 S. W. Rep. 77; Keyes v. Minneapolis & St. L. Ry. Co., 36 Minn. 290; 30 N. W. Rep. 888; Quigley v. Central Pac. R. Co., 11 Nev. 350; Illinois Cent. R. Co. v. Sutton, 53 Ill. 397; Dorrah v. Railroad Co., 65 Miss. 14; 3 So. Rep. 36.

In Bovee v. Danville (53 Vt. 190), in which a woman was caused by the injury to give premature birth to twins, it was held that any injured "feelings" following the miscarriage, not part of the pain naturally attending it, are too remote to be considered an element of damage. The court said: "If like Rachel, she wept for her children, and would not be comforted, a question of continuing damage is presented too delicate to be weighed by any scales which the law has yet invented." While every well-considered decision supports this rule, the lack of uniformity of the decisions upon the subject of liability of telegraph companies for delinquency in delivering messages to addresses is so significant as to justify special notice. In a few of the States the courts have essayed to compensate in money the grief or regret of the addressee of a telegraphic message negligently delivered too late to permit him to attend on the bedside of the ill or the obsequies of the dead; although he has suffered no pecuniary loss or bodily injury. Young v. Tel. Co., 107 N. C. 370; 11 S. E. Rep. 1044; Thompson v. W. U. Tel. Co., 107 N. C. 449; 12 S. E. Rep. 427; Gulf, C. & S. F. Tel. Co. v. Richardson, 79 Tex. 649; 15 S. W. Rep. 689; W. U. Tel. Co. v. Berdue (Tex. Civ. App.), 21 S. W. Rep. 982; Reese v. Telegraph Co., 123 Ind. 294; 24 N. E. Rep. 163; W. U. Tel. Co. v. Stratemeier (Ind. App.), 32 N. E. Rep. 871; W. U. Tel. Co. v. Newhouse (Ind. App.), 33 N. E. Rep. 800; W. U. Tel. Co. v. Carter (Tex. Civ. App.) 21 S. W. Rep. 688; W. U. Tel. Co. v. Stephens (Tex. Civ. App.), 21 S. W. Rep. 148; W. U. Tel. Co. *. Beringer, 84 Tex. 38; 19 S. W. Rep. 336; Potts v. W. U. Tel. Co., 82 Tex. 545; 18 S. W. Rep. 604; Stuart v. W. U. Tel. Co., 66 Tex. 580; 18 S. W. Rep. 351; Wadsworth v. W. U. Tel. Co., 86 Tenn. 695; 6 Am. St. Rep. 864; Loper v. W. U. Tel. Co., 70 Tex. 689; Chapman v. W. U. Tel. Co. (Ky. App.), 13 S. W. Rep. 880; Reese v. W. U. Tel. Co., 123 Ind. 294; Stuart v. W. U. Tel. Co., 66

from which bodily illness afterwards ensues, is this damage too remote to enter into the measure of damages if A.'s act was an absolute wrong, or to give Z. a cause of action if actual damage is the gist of the action? The Judicial Committee decided in 1888 (u) that such consequences are too remote; but it is submitted that the decision is not satisfactory. A husband and wife were driving in a buggy across a level railway crossing, and, through the obvious and admitted negligence of the gatekeeper, the buggy was nearly but not quite run down by a train; the husband "got the buggy across the line, so that the train, which was going at a rapid speed, passed close to the back of it and did not touch it." The wife then and there fainted, and it was proved to the satisfaction of the Court below "that she received a severe nervous shock from the fright, and that the illness from which she afterwards suffered was the consequence of the fright." It may be conceded that the passion of fear, or any other emotion of the mind, however painful and distressing it be, and however reasonable the apprehension which causes it, cannot in itself be regarded as measurable temporal damage; and that the judgment appealed from, if and so far as it purported to allow any distinct damages for "mental injuries" (x), was

(u) Victorian Railway Commissioners v. Coultas, 13 App. Ca. 222, 57 L. J. P. C. 69.

(x) It is by no means clear that such

was the intention or effect. See the report, 12 V. L. R. 895. The physical injuries were substantial enough, for they included a miscarriage (ibid.). Whether

Tex. 580; 59 Am. Rep. 623; 13 Am. & Eng. Corp. Cas. 590; W. U. Tel. Co. v. Rosentreter, 80 Tex. 406.

The contrary is the sounder doctrine. In the opinion of the court in Chapman v. Western Union Telegraph Co. (88 Ga. 763; 15 S. W. Rep. 901) and in Telegraph Co. v. Rogers (C8 Miss. 748; 9 So. Rep. 823), the authorities on both sides of the question are reviewed and the right of recovery denied. See Judge Thompson's article on this subject in 33 Cent. Law Jl. 5, and Chase v. W. U. Tel. Co., 44 Fed. Rep. 554; W. U. Tel. Co. v. Carter, 85 Tex. 580; 22 S. W. Rep. 961; Kster v. W. U. Tel. Co., 55 Fed. Rep. 603; Connell v. W. U. Tel. Co., 22 S. W. Rep. 345; Tyler v. W. U. Tel. Co., 54 Fed Rep. 634; Crawson v. W. U. Tel. Co., 47 Fed. Rep. 544.

erroneous. But their Lordships seem to have treated this as obviously involving the further proposition that physical illness caused by reasonable fear is on the same footing. This does not follow. The true question would seem to be whether the fear in which the plaintiff was put by the defendant's wrongful or negligent conduct was such as, in the circumstances, would naturally be suffered by a person of ordinary courage and temper, and such as might thereupon naturally and probably lead, in the plaintiff's case (y) to the physical effects complained of. Fear taken alone falls short of being actual damage, not because it is a remote or unlikely consequence, but because it can be proved and measured only by physical effects. The opinion of the Judicial Committee, outside the colony of Victoria, is as extra-judicial as the contrary and (it is submitted) better opinion expressed in two places (2) by Sir James Stephen as to the possible commission of murder or manslaughter by the wilful or reckless infliction of "nervous shock." And if the reasoning of the Judicial Committee be correct, it becomes rather difficult to see on what principle assault without battery is an actionable wrong (a).

that was really due to the fright was eminently a question of fact, and this was not disputed or discussed.

(y) This must be so unless we go back to the old Germanic method of a fixed scale of compensation. So, as regards the measure of damages when liability is not denied, the defendant has to take his chance of the person disabled being a workman, or a tradesman in a small way, or a physician with a large practice.

(z) Dig. Cr. Law, note to art. 221; Hist. Cr. Law, ill. 5.

(a) Cp. Mr. Beven's criticism of this case, Principles of the Law of Negligence, 66-71. As he justly points out, it has never been questioned that an action may lie for damage done by an animal which has been frightened by the defendant's negligent act: Manchester South Jn. R. Co. v. Fullerton (1863), 14 C. B. N. S. 54; Simkin v. L. & N. W. R. Co. (1888), 21 Q. B. Div. 453; 59 L. T. 797; Brown v. Eastern and Midlands R. Co. (1889), 22 Q. B. Div. 391; 58 L. J. Q. B. 212.

58

CHAPTER III.

PERSONS AFFECTED BY TORTS.

1.- Limitations of Personal Capacity.

Personal status, as a rule, immaterial in law of tort: but capacity in fact may be material. In the law of contract various grounds of personal disability have to be considered with some care. Infants, married women, lunatics, are in different degrees and for different reasons incapable of the duties and rights arising out of contracts. In the law of tort it is otherwise. Generally speaking, there is no limit to personal capacity either in becoming liable for civil injuries, or in the power of obtaining redress for them. It seems on principle that where a particular intention, knowledge, or state of mind in the person charged as a wrong-doer is an element, as it sometimes is, in constituting the alleged wrong, the age and mental capacity of the person may and should be taken into account (along with other relevant circumstances) in order to ascertain as a fact whether that intention, knowledge, or state of mind was present. But in every case it would be a question of fact, and no exception to the general rule would be established or propounded (a). An idiot would scarcely be held answerable for incoherent words. of vituperation, though, if uttered by a sane man, they

(a) Ulpian, în D. 9, 2, ad leg. Aquil. 5, § 2. Quaerimus, si furiosus damnum dederit, an legis Aquiliae actio sit? Et Pegasus negavit: quae enim in eo culpa sit, cum suae mentis non sit? Et hoc

est verissimum. . . . Quod si impubes id fecerit, Labeo alt, quia furti tene. tur, teneri et Aquilia eum; et hoc puto verum, si sit iam injuriae capax.

might be slander. But this would not help a monomaniac who should write libellous post-cards to all the people who had refused or neglected, say to supply him with funds to recover the Crown of England. The amount of damages recovered might be reduced by reason of the evident insignificance of such libels; but that would be all. Again, a mere child could not be held accountable for not using the discretion of a man; but an infant is certainly liable for all wrongs of omission as well as of commission in matters where he was, in the common phrase, old enough to know better. It is a matter of common sense, just as we do not expect of a blind man the same actions or readiness to act as of a seeing man.

Partial or apparent exceptions. There exist partial exceptions, however, in the case of convicts and alien enemies, and apparent exceptions as to infants and married

women.

Partial or apparent exceptions: Convict. The doctrine of the common law, that a convict is civiliter mortuus, is not wholly accepted in the United States.

In Dade Coal Co. v. Haslett (83 Ga. 549; 10 S. E. Rep. 435), it is held, that an action for personal injuries received while a felon, in confinement, is maintainable. See Willingham v. King, 23 Fla. 478; Cannon v. Wind

sor, 1 Houst. 143. Alien enemy. Upon the right of an alien enemy to sue and be sued in the United States see McVeigh v. United States, 11 Wall. 259; McNair v. Toler, 21 Minn. 175; Burnside v. Matthews, 54 N. Y. 78.

Lunatic. "By the common law, as generally stated in the books, a lunatic is civilly liable to make compensation in person to persons injured by his acts." Morain v. Devlin, 132 Mass. 87; citing Morse v. Crawford, 17 Vt. 499; Cross v. Kent, 32 Md. 581; Bullock v. Babcock, 3 Wend. 391; Behrens v. McKenzie, 23 Ia. 333; Lancaster Bank v. Moore, 78 Pa. St. 407; Dickinson v. Barber, 9 Mass. 225; Brown v. Howe, 9 Gray, 84; Harding v. Larned, 4 Allen, 426; Harding v. Weld, 128 Mass. 587. See McIntyre v. Sholty, 24 Ill. App. 605; affirmed 121 Ill. 660; 13 N. E. Rep. 239.

But vindictive damages, in such a case, cannot be recovered. Ward v. Conatser, 4 Baxt. 64; Krom v. Schoonmaker, 3 Barb. 647; Jewell v. Colby (N. H.), 24 At. Rep. 902.

Drunkenness. Drunkenness as a defense to a tort may be properly