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But the better decisions among those which deny recovery proceed frankly upon considerations of what is practicable, that is, upon a balancing of interests.56 In another type of this case the nervous or mental shock which caused the physical injury was inflicted intentionally. Here the difficulties are less than in the first type and the better judicial view allows recovery.57 But there are courts that will not go so far and there are limits. If the defendant intended to bring about the physical harm which followed, there would seem no occasion for requiring more.58 If, however, the defendant did not intend the physical harm, but only a mild fright or mild nervous shock which would work no further harm in a person of ordinary nerves and normal sensibilities, the accepted rule seems to be that there should be no recovery.59 In cases of negligence the individual interest of the actor, – that is, his interest in the free exercise of his faculties, - must be weighed as well as the social interest against imposture and the practical difficulties of proof and reparation. Where he exercises his faculties for purposes recognized by law and, so far as he could reasonably foresee, does nothing that would work an injury, the individual interest of the unduly sensitive or abnormally nervous must give way. But the law does not secure individuals in the free exercise of their faculties for the purpose of injuring others, since obvious social interests are opposed to such a claim. Hence, if there was an intention to injure, only the social interest against imposture and the practical difficulties are to be weighed. This is the philosophical basis of the distinction made in these cases. Probably advance in our knowledge of psychology and mental pathology and progress in means of arriving at the truth in matters where expert evidence is required will determine the development of the law upon this subject. So long as the margin for imposture and the scope of pure expert conjecture remain as large as they are at present, this phase of the interest of personality must remain in some measure insufficiently secured.

by the courts subconsciously to cover a balancing of other interests against the individual interest.

66 “As has been explained repeatedly, it is an arbitrary exception, based upon a notion of what is practicable that prevents a recovery for visible illness resulting from nervous shock alone. . . . But when there has been a battery and the nervous shock results from the same wrongful management as the battery, it is at least equally impracticable to go further and to inquire whether the shock comes through the battery or along with it. Even were it otherwise, recognizing 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 that 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.” Holmes, C. J., in Homans v. Boston E. R. Co., 180 Mass. 456, 62 N. E. 737 (1902). In a prior case the same judge said: “The point is not put as a logical deduction from the general principles of liability in tort, but as a limitation of those principles on purely practical grounds.” Smith v. Postal T. Co., 174 Mass. 576, 55 N. E. 380 (1899). Cf. also Driscoll v. Gaffey, 207 Mass. 102, 92 N. E. 1010 (1910). But see Green v. Shoemaker, supra, where the court denies that these practical considerations are sufficient to preclude recovery where physical injury has resulted from fright, though it says no action will lie for mere fright which does not result in a physical injury.

57 Wilkinson v. Downton, [1897] 2 Q. B. 57; Garrison v. Sun Pub. Co., 207 N. Y. 1, 100 N. E. 430 (1912). But see Stevens v. Steadman, 140 Ga. 680, 79 S. E. 564 (1913).

58 See remarks of Holmes, C. J., in Silsbee v. Webber, 171 Mass. 378, 380, 50 N. E. 555, 556 (1898).

59 Nelson v. Crawford, 122 Mich. 466, 81 N. W. 335 (1899). See Bohlen, Right to Recover for Injury Resulting from Negligence without Impact, 41 Amer. L. Reg. 141.

Where the injury is to mental comfort only, the practical difficulties are still greater. Hence the law can recognize an “interest in the peace and comfort of one's thoughts and emotions " 60 only to a limited extent. In the first place, an objective standard is required here by the social interest with which the individual interest must be balanced. Hence the tendency of the law to secure an interest in mental comfort only to the extent of ordinary sensibilities of ordinary men, and then only when the mental suffering is caused by and involved in the infringement of some other interest.61 In other words, here again the law does not secure the whole demand which the individual may make, but it does secure the interest in case of ordinary sensibilities where there is also an objective injury. Thus, no doubt, it secures the interest in the general run of cases for the average man. No more may well be attempted with our present means of proof and in view of the inapplicability to such injuries of the means of redress known to our law.

Another phase of the same interest is the demand which the individual may make that his private personal affairs shall not be laid bare to the world and be discussed by strangers. Such an interest is the basis of the disputed legal right of privacy 62 It is a modern demand, growing out of the conditions of life in the crowded communities of to-day, and presents difficult problems. The interest is clear. Such publicity with respect to private matters of purely personal concern is an injury to personality. It impairs the mental peace and comfort of the individual and may produce suffering much more acute than that produced by a mere bodily injury. But, as the injury is mental and subjective, the difficulties already considered must, at least, confine legal securing of the interest to ordinary sensibilities. Here, as in many other cases, in a weighing of interests the over-sensitive must give way. For over and above the difficulties in mode of proof and in applying legal redress, social interests in free speech and dissemination of news have also to be considered. On such grounds, 110 doubt, a legal right of privacy which fully secures this interest has not been recognized anywhere.63 For the most part the interest has been secured incidentally, as it were, by taking account of infringement thereof as an element of damage where well-recognized legal rights have also been violated, rather than by establishing a legal right of privacy a violation whereof should constitute a cause of action. But while the law is slow in recognizing this interest as something to be sécured in and of itself, it would seem that the aggressions of a type of unscrupulous journalism, the invasions of privacy by reporters in competition for a “story," the activities of photographers, and the temptation to advertisers to sacrifice private feelings to their individual gain call upon the law to do more in the attempt to secure this interest than merely take incidental account of infringements of it. 64 A man's feelings are as much a part of his personality as his

61 Id., § 20. 60 Wigmore, Summary of the Principles of Torts, $ 19. 62 Warren and Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193.


63 See Wigmore, Summary of the Principles of Torts, 149.

64 “ John S. Geraghty, father of John Edward Paul Geraghty, who on Tuesday eloped with Miss Julia French, to-day asked the police to save him from camera

Geraghty told the police that he was followed everywhere by men with cameras who were trying to take the picture of himself and his cab. He said he had been driven about crazy by them and that his wife and children were being hounded in a similar way. Mr. Geraghty was very angry this afternoon and he loaded up the front seat of his cab with several large stones which, he said, the first man who tried to snap his picture would get. Mr. Geraghty is usually a peaceful, law-abiding citizen, but there arrived here to-day a number of men to get his picture, and he seriously resents being followed.” Press dispatch of August 12, 1911, quoted in Wigmore, Cases on Torts, II, 960–961. Cf. Binns v. The Vitagraph Co., 210 N. Y. 51, 103 N. E. 1108 (1913).

limbs.65 The actions that protect the latter from injury may well be made to protect the former by the ordinary process of legal growth. The problems are rather to devise suitable redress and to limit the right in view of other interests involved.

The interest in body and life is not only the first to receive the protection of law, but it is on the whole the interest with respect to which individual demands are most insistent and the social interest in securing them is strongest. Yet the law, as has been seen, does not cover the whole field of this interest. It does not secure all the demands with respect to physical and mental integrity which the individual may make. The reasons are of two kinds. On the one hand they are historical, growing out of the mode in which the law upon this subject has developed, and in particular out of the procedure and the remedies worked out to give effect thereto. For example, a large part of the backwardness of the common law as to immunity of the mind and of the nervous system from injury is due to the exigencies of our mode of trial by jury and to our remedy of damages. Such a remely a's that afforded by the action for honorable amends 66 in the civil law and resort to specific relief where possible, as is done in continental Europe, 67 would enable the legal system to extend the scope of its protection of this interest. But the most effective r('medy in this connection is prevention. The backwardness of preventive justice in American law is a grave defect.68 In connection with interests of personality, where redress by way of damages is often obviously inadequate if not inapplicable, the hesitation of our law to apply preventive remedies is unfortunate and without just excuse.


65 Some think of the right of privacy as a “property right," that is, they consider that an interest of substance is involved. Munden v. Harris, 153 Mo. App. 652, 134 S. W. 1076 (1911). But see Riddle v. MacFadden, 201 N. Y. 215, 94 N. E. 644 (1911).

66 See De Villiers, The Roman and Roman Dutch Law of Injuries, 177 ff. 67 Garraud, Droit pénal français, II, 88 459-461; IV, 88 1324 ff. 68 See my paper, A Practical Program of Procedural Reform, 22 Green Bag 455.

69 “There is no reason in the nature of things why equity should not interfere to prevent injury to feelings. Pecuniary damages cannot be proved, and the temptation to purely speculative litigation is therefore absent. Such being the case, if a plaintiff feels himself so much aggrieved by threatened or continued acts of the defendant as to lead him to incur the expense and annoyance of an actual litigation, we may be certain that he regards the injury as substantial. If under these circumstances he

A second type of reasons for the failure of the law to secure fully individual interests of personality are practical, growing out of the practical limitations involved in the administration of justice according to law. Next to property in corporeal things, the interest in body and life is on the whole the interest most completely capable of legal protection. But the practical limitations are considerable. In the first place, with respect to merely mental injuries, the danger of imposture, the difficulty, if not impossibility, of satisfactory proof, and the difficulty of devising adequate redress stand in the way of complete securing by law of an interest which the law is quite willing to recognize fully. Again, account must be taken of the relative triviality of injuries, looked at in gross, which may nevertheless have a real importance in the case of particular individuals. The necessity of acting with reference to the average case, involved in any system of standards or rules, compels some sacrifice of the demands of the over-sensitive. Finally, the intangible nature of many injuries to personality, the difficulty of tracing them to their source and of fitting cause to effect, must also be taken into account.

(To be concluded]

Roscoe Pound.


can, in fact, prove that continued injury to his feelings is threatened or continued, and the defendant can offer no rational excuse for continuing it, equity has no rational excuse to offer for denying the easy aid of its injunctive process.” Abbot, Justice and the Modern Law, 32.

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