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ing five points. The first and most obvious is immunity of the body from direct or indirect injury. Second and closely related is the preservation and furtherance of bodily health. Third and hardly less important is immunity of the will from coercion, freedom of choice, and judgment as to what one will do. These three interests have long been recognized. Two more have become important with the progress of civilization, namely, immunity of the mind and the nervous system from direct or indirect injury and the preservation and furtherance of mental health, - freedom from annoyance which interferes with mental poise and comfort. Perhaps it may be objected that we have no warrant for thus distinguishing mental health and the security of the nervous system from bodily health and the security of bone and muscle. But history and certain practical considerations require that these be considered apart, whatever a stricter abstract adherence to biological science might otherwise dictate. 37

Injuries to the body are the first wrongs dealt with in the history of law. But they are not thought of at first as infringements of an individual interest. Rather they are thought of as involving infringement of an interest of a group or kindred or of a social interest in peace and good order. They are taken to involve affront to the kindred whose kinsman is assailed, or it is taken that a desire for revenge will be awakened, and hence that they involve danger of private vengeance and private war. It is not an individual interest which is regarded, but a group interest. Hence the remedy (composition) is imposed to secure the social interest in peace and order, not to vindicate an individual private right. Often in primitive law a composition is payable to the kindred as well as to the person injured. Likewise in case of killing, the wer is payable to the kindred, not to dependents; it is exacted to satisfy vengeance for an insult to the kindred, not to compensate those who are deprived of support.39 At first, then, the ideas are (1) a group interest against insult and (2) a social interest against disorder, rather than an individual interest in the physical person. Out of these evolves slowly the idea of an individual interest secured by an individual right.

37 On the other hand, for like reasons, the common law deals with nervous injuries which leave no physical signs and mental injury without much discrimination. Spade v. Railroad Co., 168 Mass. 285, 47 N. E. 88 (1897).

38 The latter idea is perhaps still behind the common law of libel as a misdemeanor. Blackstone, Commentaries, IV, 150.

ag See Amira, Grundriss des germanischen Rechts, $ 54.

Again, when the individual interest is recognized, it is regarded at first as an interest in one's honor, in one's standing among brave men regardful of their honor, rather than as an interest in the integrity of the physical person. In Greek law every infringement of the personality of another is üßpus (contumelia); the injury to honor, the insult, being the essential point, not the injury to the body.40 In Roman law, injury to the person is called iniuria, meaning originally insult, but coming to mean any willful disregard of another's personality.“ In consequence the beginnings of law measure composition not by the extent of the injury to the body, but by the extent of the injury to honor and the extent of the desire for vengeance thus aroused, since the interest secured is really the social interest in preserving the peace.

While the law secures the interest of the individual in his honor at least as soon as his interest in his physical person, when presently it distinguishes between injuries to the person and injuries to honor or reputation, it moves very slowly in protecting feelings in any respect other than against insult or dishonor. Three steps may be noted. At first only physical injury is considered. Later overcoming the will is held a legal wrong; in other words, an individual interest in free exercise of the will is recognized and secured. Finally the law begins to take account of purely subjective mental injuries to a certain extent and even to regard infringement of another's sensibilities.

With respect to the interest in free exercise of the will, the Roman law of the stage of strict law (ius civile) and the common law agreed in holding transactions entered into under duress to be legally binding.43 In each system in the stage of infusion of morals into law, equity intervened to set aside legal transactions resulting from coercion. Roman law went further. On equitable grounds it worked out a special wrong (metus) of unlawfully overcoming another's will and developed an action for reparation of

40 Hermann, Lehrbuch der griechischen Rechtsaltertümer, 4 ed., 86. 41 Gaius, III, &$ 220–222; Inst. IV, 4; Dig. XLVII, 10, 16.

42 See my paper, The End of Law as Developed in Legal Rules and Doctrines, 27 HARV. L. Rev. 195, 198.

43 Id., 204.

the injury resulting therefrom.4 The common law did not recognize a tort of duress as such, not even to the extent of allowing recovery by way of reparation for what one did through coercion as an incident of recovery for the physical injury with which it was connected. But recovery by way of restitution came to be allowed on equitable principles as upon quasi-contract in order to prevent unjust enrichment. The law on this point grew slowly. In the Roman and the modern Roman law it seems to have passed through four stages. In the first three stages there is a purely objective standard. The law does not ask whether this man's will was in fact overcome by wrongful pressure brought to bear upon him in this case, but asks instead what was the character of the pressure employed. In the first stage the objective standard made use of is peril of life or limb, - actual or threatened bodily suffering. Any pressure short of that is not regarded. 46 In the second stage there is still an objective test, but it is more liberal. The law asks whether the will of a reasonable or standard man would have been overcome by the pressure employed." In the third stage there is a further liberalizing of the objective standard. The law asks whether the evil threatened was a serious one or, as some civilians put it, whether the complainant yielded to fear of "a not-inconsiderable evil.” 48 Finally the new German code adopts a purely subjective standard, asking only, Did the unlawful pressure employed in this case actually overcome the will? 49 It is required that the pressure be unlawful because if, to secure some other interest, the law recognizes the pressure as legal, then, in a weighing of interests the individual interest in freedom of will may have to give way. As to the main point, it would seem that the subjective standard is the one that ought to be adopted. So far as the objective standard subserves a useful purpose in preventing fraud and so maintaining the social interest in security of transactions, the end may be attained by requiring a proper quantum of proof in such cases and by treating considerations of what a reasonable man would do as of evidentiary value. The objective standard is a survival from the extreme individualism of the strict law and its reluctance to set aside acts done in due legal form.

44 Dig. IV, 2, 1; IV, 2, 14, $$ 3, 5; IV, 2, 16, $ 2. 45 Astley v. Reynolds, 2 Stra. 915 (1782).

46 Dig. IV, 2, 2; IV, 2, 3; Code, II, 4, 13. By way of comparison it may be noted that Blackstone so defines duress in our law, laying down that there must be threat of immediate harm to life or limb or else imprisonment. Commentaries, I, 130-14I.

47 Dig. IV. 2, 6.

48 Dig. IV, 2, 5; Windscheid, Pandekten, I, § 80, n. 6; Dernburg, Pandekten, I, $ 91, par. 2; Regelsberger, Pandekten, I, § 144, n. 8.

49 Civil Code, $ 123; Crome, System des deutschen bürgerlichen Rechts, I, 432. It should be noted that Anglo-American law is going through a similar course of development. Blackstone's formula, which is that of the first stage of the Roman law, has been cited supra. In the nineteenth century the cases commonly apply the objective test of what is “sufficient to overcome the mind and will of a person of ordinary firmness.” Brown v. Pierce, 7 Wall. (U. S.) 205 (1868); James v. Dalbey, 107 Ia. 463, 78 N. W. 51 (1899); Railroad Co. v. Pattison, 41 Ind. 312, 320 (1872); Fellows v. School District, 39 Me. 559 (1855); Tapley v. Tapley, 10 Minn. 448 (1865); Davis v. Railroad Co., 46 Miss. 552, 568 (1872); Edwards v. Bowden, 107 N. C. 58, 12 S. E. 58 (1890). But courts frequently define duress in terms of the subjective criterion. Cribbs v. Sowle, 87 Mich. 340, 49 N. W. 587 (1891); Phillips v. Henry, 160 Pa. St. 24, 28 Atl. 477 (1894); Galusha v. Sherman, 105 Wis. 263, 81 N. W. 495 (1900). In actual application the tendency seems to be toward the subjective criterion.

Injury to the nervous system, mental injury, and injury to sensibilities, where there is no physical impact or no injury to substance or to any relation, is a new problem of modern law. Here also development has been slow and cautious, partly because the law on this subject has had to be made in a period of legal stability, but partly also because of practical limitations upon the enforcement of legal rules and hence upon the securing of interests thereby. A nervous derangement manifested objectively is like any bodily illness. But our law does not protect against purely subjective mental suffering except as it accompanies or is incident to some other form of injury and within certain disputed limits.51 There are obvious difficulties of proof in such cases, so that false testimony as to mental suffering may be adduced easily and is very hard to detect.52 Hence this individual interest has to be balanced carefully with a social interest against the use of the law to further imposture. For these reasons courts, thinking more of the practical problem of proof than of the logical situation, have looked to see whether there has been some bodily impact or some wrong infringing some other interest, which is objectively demonstrable, and have put nervous injuries which leave no physical record and purely mental injuries in the same category.53 In case of nervous injury or mental suffering along with other injury as a result of bodily impact, considerations of what would naturally happen to persons of normal sensibilities enable the law to meet the practical difficulties. This is true also where there has been an infringement of some other interest in itself raising a right of action. But if there is no physical impact and there is no independent right of action for a coincident injury, the practical difficulties weigh heavily. The case which best illustrates the problem is one in which fright or nervous shock results in or develops into palpable physical injury. In one type of this case the fright or nervous shock was caused by the defendant's negligence. Attempt has been made to dispose of the question by resorting solely to the principle of remoteness.55

50 E. g., a threat to sue or to levy execution where one has a right to do so in order to secure an interest of substance, although results disastrous to the debtor would follow. Emmons v. Scudder, 115 Mass. 367 (1874). Cf. Dig. IV, 2, 3.

61 “A factor which we may for the sake of convenience refer to as the parasitic element of damage. The idea which is meant to be brought out by the use of this expression is that in certain situations the law permits elements of harm to be considered in assessing the recoverable damage which cannot be taken into account in determining the primary question of liability. It is only under this head that such factors as insult, disgrace, and anguish of feeling can get legal recognition at all.” Street, Foundations of Legal Liability, I, 461. A striking instance may be seen in Floyd v. Atlantic Coast Line R. Co., 83 S. E. 12 (N. C., 1914), where a mother sued for mental anguish caused by the negligent mutilation of the dead body of her boy. As the right to possession of the body for the purposes of burial was in her husband

as next of kin, and hence there was no infringement of any interest of the mother other than that involved in the injury to feelings and sensibilities, recovery was denied.

62 Cf. the remarks of the court in Huston v. Freemansburg, 212 Pa. St. 548, 61 Atl. 1022 (1905).

63 Spade v. Railroad Co., 168 Mass. 285, 47 N. E. 88 (1897); Dulieu v. White, (1901) 2 K. B. 669. But see Yates v. South Kirkby Collieries, Ltd., (1910) 2 K. B. 538.

54 Bouillon v. Laclede Gas Light Co., 148 Mo. App. 462, 129 S. W. 401 (1910); Tennessee Cent. R. Co. v. Brasher, 97 S. W. 349 (Ky., 1906); Nordgren v. Lawrence, 74 Wash. 305, 133 Pac. 436 (1913). “The treatment of any element of damage as a parasitic factor belongs essentially to a transitory stage of legal evolution. A factor which is to-day recognized as parasitic will, forsooth, to-morrow be recognized as an independent basis of liability. It is merely a question of social, economic, and industrial needs as those needs are reflected in the organic law.” Street, Foundations of Legal Liability, I, 470.

55 Victorian Railway Com’rs v. Coultas, 13 App. Cas. 222 (1888) (no recovery); Green v. Shoemaker, 111 Md. 69, 73 Atl. 688 (1909) (recovery allowed). See Wigmore, Summary of the Principles of Torts, $ 15. “Do not some courts, in laying down the rule of legal cause, proceed upon the supposition that one problem before them is to determine when to exempt a tortfeasor from liability for effects which were in reality caused by his tort?” Smith, Legal Cause in Actions of Tor:, 25 Harv. L. Rev. 103 In other words, questions of “legal cause” or “remoteness” are often used

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