may be had must be the necessary and direct result of the injury complained of 25 and are limited to the pain of which the mind is conscious.26 These damages are properly allowed an infant in an action for personal injuries, as his parents are not entitled thereto.27 Nervous shocks are properly regarded as physical injuries rather than mental injuries,28 and there may be a recovery for nervousness caused by the physical injury.20 Evidence of an injury to the nerves has been held admissible under an averment that the plaintiff was "otherwise dangerously and permanently injured." Where the evidence is uncontradicted that the plaintiff suffered a most severe shock as the result of her injuries, it has been held proper to allow testimony of her jumping and trembling at slight sounds and of her complaining of her eyes dancing in her head when there was in fact nothing the matter with them.31 § 7320. Mental Anguish.-By the decided weight of authority, mental pain is regarded as a proper element of damages only when it arises directly out of or is a part of the physical suffering endured as a result of the injury, and such damages when authorized are re 25 Chicago City R. Co. v. Mead, 107 Ill. App. 649; s. c. aff'd, 206 Ill. 174; 69 N. E. Rep. 19; Pittsburg &c. R. Co. v. Montgomery, 152 Ind. 1; s. c. 49 N. E. Rep. 582; 9 Am. & Eng. R. Cas. (N. S.) 792. aff'g s. c. 89 Ill. App. 318; Chicago City R. Co. v. Anderson, 80 Ill. App. 71; Chicago City R. Co. v. Canevin, 72 Ill. App. 81; s. c. 2 Chic. L. J. Wkly. 600; Indianapolis &c. R. Co. v. Stables, 62 Ill. 313; North Chicago v. Gilfoil, 99 Ill. App. Chicago R. Co. v. Duebner, 85 Ill. Texas &c. R. Co. v. Malone, 15 Tex. Civ. App. 56; s. c. 38 S. W. Rep. 538. 28 Watson v. Dilts, 116 Iowa 249; s. c. 57 L. R. A. 559; 89 N. W. Rep. 1068; Gulf &c. R. Co. v. Hayter (Tex. Civ. App.), 55 S. W. Rep. 128. Chicago &c. R. Co. v. McDonnell, 194 Ill. 82; s. c. 62 N. E. Rep. 308; aff'g s. c. 91 Ill. App. 488. "Kappus v. Metropolitan St. R. Co., 82 App. Div. (N. Y.) 13; s. c. 81 N. Y. Supp. 442. 11 Missouri &c. R. Co. v. Oslin, 26 Tex. Civ. App. 370; s. c. 63 S. W. Rep. 1039. "Fairchild v. California Stage Co., 13 Cal. 599; Chicago &c. R. Co. V. Caulfield, 63 Fed. Rep. 396; s. c. 27 U. S. App. 358; Morse v. Duncan, 14 Fed. Rep. 396; Haile v. Texas &c. R. Co., 60 Fed. Rep. 557; s. c. 23 U. S. App. 80; 23 L. R. A. 774; Cicero &c. R. Co. v. Brown, 193 111. 274; s. c. 61 N. E. Rep. 1093; App. 602; North Chicago St. R. Co. v. Lehman, 82 Ill. App. 238; West Chicago St. R. Co. v. Lups, 74 III. App. 420; Kalen v. Terre Haute &c. R. Co., 18 Ind. App. 202; s. c. 47 N. E. Rep. 694; Muldowney v. Illinois &c. R. Co., 36 Iowa 462; Atchison &c. R. Co. v. McGinnis, 46 Kan. 109; Salina v. Trosper, 27 Kan. 544; Wyman v. Leavitt, 71 Me. 227; s. c. 36 Am. Rep. 303; Pittsburg &c. R. Co. v. Andrews, 39 Md. 329; Canning v. Williamstown, 1 Cush. (Mass.) 451; Purcell v. St. Paul City R. Co., 48 Minn. 134; s. c. 16 L. R. A. 281; Memphis &c. R. Co. v. Whitfield, 44 Miss. 466; Johnson v. Wells &c. Co., 6 Nev. 224; Walker v. Boston &c. R. Co., 71 N. H. 271; s. c. 51 Atl. Rep. 918; Consolidated Traction Co. v. Lambertson, 60 N. J. L. 457; s. c. 10 Am. & Eng. R. Cas. 753; 38 Atl. Rep. 684; aff'g s. c. 59 N. J. L. 297; 36 Atl. Rep. 100: Ewing v. Pittsburgh &c. R. Co., 147 Pa. St. 40; s. c. 14 L. R. A. 666; North German Lloyd S. S. Co. 34 coverable as actual and not punitive damages.33 But injury or annoyance which may arise in the mind from the accident resulting in the injury, not being a part of the pain naturally attending it, cannot be recovered. Thus, mental pain from the contemplation of a maimed body and the humiliation of going through life in a crippled condition,35 anxiety of mind about the safety of others who may be in danger of injury from the same cause, humiliation because of wrong v. Wood, 18 Pa. Sup. Ct. 488; Hirshfield v. Fort Worth Nat. Bank, 83 Tex. 452; s. c. 15 L. R. A. 639; 6 Bkg. L. J. 345; 18 S. W. Rep. 743; Missouri &c. R. Co. v. Warren (Tex. Civ. App.), 2 Am. Neg. Rep. 246; s. c. 39 S. W. Rep. 652; s. c. aff'd, 90 Tex. 566; 40 S. W. Rep. 6; Bovee v. Danville, 53 Vt. 183; Davis v. Western Union Tel. Co., 46 W. Va. 48; s. c. 32 S. E. Rep. 1026; Henderson v. Canada Atlantic R. Co., 25 Ont. App. 437. In an action for personal injuries by a married woman, plaintiff claimed that she had suffered a miscarriage as a result thereof. Defendant contended that the miscarriag was not the result of the injuries, but of a prior attempt by plaintiff to produce an abortion. The complaint claimed no damages for degradation and humiliation. The court charged that, if the jury found for plaintiff, they might, in fixing damages, compensate plaintiff for the degradation and humiliation she suffered in consequence of the accident. It was held that, as the shame and degradation, if any, must have resulted from the defendant's charge of having produced an abortion, and as defendant had a right to urge this defense in good faith, the charge was erroneous: Loomis v. Hollister, 75 Conn. 275; s. c. 53 Atl. Rep. 579. In an action for personal injuries, where there was evidence tending to show a permanent disability, it was not error, after having charged generally on the subject of physical and mental suffering, to add: "You have the right to give damages for that mental suffering which a man may have from the consciousness that his earning capacity is injured for life. That is one element of damage": Brush Electric Light &c. Co. v. Simonsohn, 107 Ga. 70; s. c. 32 S. E. Rep. 902. But in a suit by parents for an injury to their child by defendant's negligence, their mental 36 suffering is not an element of damage: Galveston v. Barbour, 62 Tex. 172. 33 Young v. Gormley, 120 Iowa 372; s. c. 94 N. W. Rep. 922. 34 Chicago City R. Co. v. Mauger, 105 Ill. App. 579; Chicago City R. Co. v. Taylor, 170 Ill. 49; s. c. 48 N. E. Rep. 831; 9 Am. & Eng. R. Cas. (N. S.) 513; aff'g s. c. 69 Ill. App. 613. Mere apprehension of personal injuries, resulting in physical suffering, will not support an action for negligence, where such injuries are not in fact received: Ward v. West Jersey &c. R. Co., 65 N. J. L. 383; s. c. 47 Atl. Rep. 561. Evidence that plaintiff in an action for personal injuries, during the time he was suffering from the accident was troubled by the sickness and confinement of his wife and the fear that he would leave her and the child in a dependent and helpless condition, is inadmissible: Atchison &c. R. Co. v. Chance, 57 Kan. 40; s. c. 45 Pac. Rep. 60; 4 Am. & Eng. R. Cas. (N. S.) 328. 35 Railroad Co. v. Caulfield, 63 Fed. Rep. 396; s. c. 11 C. C. A. 552; Giffen v. Lewiston, 6 Idaho 231; s. c. 55 Pac. Rep. 545; Lake St. Elevated R. Co. v. Gormley, 108 Ill. App. 59; Chicago City R. Co. v. Anderson, 80 Ill. App. 71; s. c. 4 Chic. L. J. Wkly. 41; Decatur v. Hamilton, 89 Ill. App. 561; Railroad Co. v. Hines, 45 Ill. App. 299; Railroad Co. v. James, 69 Ill. App. 609; Railroad Co. v. Spurney, 69 Ill. App. 549; Missouri &c. R. Co. v. Miller, 25 Tex. Civ. App. 460; s. c. 61 S. W. Rep. 978. But see contra, Rockwell v. Eldred, 7 Pa. Super. Ct. 95; Gray v. Washington Water Power Co., 30 Wash. 665; s. c. 71 Pac. Rep. 206; Heddles v. Chicago &c. R. Co., 77 Wis. 228; s. c. 46 N. W. Rep. 115; Central R. &c. Co. v. Lanier, 83 Ga. 587; s. c. 10 S. E. Rep. 279. 36 Keyes v. Minneapolis &c. R. Co., 36 Minn. 290; s. c. 30 N. W. Rep. 888. ful exclusion from a room assigned to a guest,37 regret because of inability to perform services formerly rendered in the household,3 the fact that an intended marriage had to be postponed on account of the injury, such a result not being a necessary consequence of the injury, have been held too remote to justify allowance. But an apprehension of insanity caused by mental disability owing to injuries has been held a proper element of damages. *° 39 40 § 7321. Further of Mental Anguish.-There seems to be no good reason on principle why the plaintiff should not be compensated in damages for mental injuries alone, since all mental injuries are in their nature physical. It certainly cannot have escaped notice that the courts holding most strictly to the doctrine that there can be no allowance for pain and anguish unless resulting from the physical injury, uniformly sustain without protest or difficulty awards for humiliation wantonly or maliciously inflicted in cases where no physical injury is suffered, as a species of punitive damages,12 notably in cases where the rights of passengers have been invaded either by wrongful ejection or otherwise. 43 § 7322. Knowledge of Susceptibility to Mental Anguish not Essential to Charge Wrong-Doer.-Mental injury and anguish, intensi Linn v. Duquesne, 204 Pa. St. 551; s. c. 54 Atl. Rep. 341. "Beath v. Rapid R. Co., 119 Mich. 512; s. c. 78 N. W. Rep. 537. Walker v. Boston &c. R. Co., 71 N. H. 271; s. c. 51 Atl. Rep. 918. "See Vol. III, § 3288. 42 Lake Erie &c. R. Co. v. Christison, 39 Ill. App. 495; Rawlings v. Wabash R. Co., 97 Mo. App. 515; s. c. 71 S. W. Rep. 535; Snyder v. Wabash R. Co., 85 Mo. App. 495; Williams v. Underhill, 63 App. Div. (N. Y.) 223; s. c. 71 N. Y. Supp. 291. See Vol. III, § 3285, et seq. See also, Paddock v. Atchison &c. R. Co., 37 Fed. Rep. 841; s. c. 4 L. R. A. 231; Mabry v. City Elec. R. Co., 116 Ga. 624; s. c. 42 S. E. Rep. 1025; 59 L. R. A. 590; Cleveland &c. R. Co. v. Kinsley, 27 Ind. App. 135; S. c. 60 N. E. Rep. 169 (passenger wrongfully denied admission to train); Pennsylvania Co. v. Bray, 125 Ind. 229; s. c. 25 N. E. Rep. 439; Shepard v. Chicago &c. R. Co., 77 Iowa 54; s. c. 41 N. W. Rep. 564; Southern Kansas R. Co. v. Hinsdale, 38 Kan. 507; s. c. 16 Pac. Rep. 937; Southern Kansas R. Co. v. Rice, 38 Kan. 398; s. c. 16 Pac. Rep. 817; Breen v. St. Louis Transit Co., 102 Mo. App. 479; s. c. 77 S. W. Rep. 78; Conlon v. Metropolitan St. R. Co., 34 Misc. (N. Y.) 394; s. c. 69 N. Y. Supp. 653; Gulf &c. R. Co. v. Copeland, 17 Tex. Civ. App. 55; S. C. 42 S. W. Rep. 239; Missouri &c. R. Co. v. Nall, 25 Tex. Civ. App. 500; s. c. 61 S. W. Rep. 327 (white woman compelled to ride in negro coach); Texas &c. R. Co. v. James, 82 Tex. 306; s. c. 15 L. R. A. 347; 18 S. W. Rep. 589. A railroad company selling the wrong ticket to a woman unaccustomed to travelling is liable for mental anguish suffered by her while waiting in a city in which she was a stranger, and where she was compelled to ask a hotel,man to keep her until she could get money to pay her bill: Texas &c. R. Co. v. Armstrong. 93 Tex. 31; s. c. 51 S. W. Rep. 835. fied and aggravated by the physical condition of a person, may be regarded in estimating the damages for a wrongful injury, although the party guilty of the wrong did not know of such physical condition, -as where a passenger afflicted with a rupture was wrongfully ejected from a moving train and was subjected to distress and apprehension because of his condtion." So, in another case, where the evidence in an action by an employé for injuries showed that the plaintiff was injured about his neck, back, and head, and there was opinion evidence that the plaintiff was rather weak-minded before the injury, and that such condition had noticeably increased since the accident, the court took the position that it could not be held, as matter of law, that the jury were not warranted in considering the impairment of the plaintiff's mind as an element of damages.*5 § 7323. Peril and Fright.-Very nearly connected with this ground of damages, but even more unsubstantial, is the fear and mental agony produced by the peril to which the plaintiff is exposed at the time of the injury complained of. It has been held that for this also the plaintiff may recover. Thus, under this principle, damages have been allowed for fright of a married woman with a three year old child who was compelled to alight from a train in the night, after passing the station, at a point where there were no lights and where the surroundings were calculated to cause fright to an unprotected woman, there being evidence that her health was impaired by reason of leaving "Fell v. Northern Pac. R. Co., therefor," was held proper: Amer44 Fed. Rep. 248. 45 Baumann v. C. Reiss Coal Co., 118 Wis. 330; s. c. 95 N. W. Rep. 139. 40 Masters v. Warren, 27 Conn. 294; Segear v. Barkhamsted, 22 Conn. 298; Cooper v. Mullins, 30 Ga. 152; Smith v. St. Paul &c. R. Co., 30 Minn. 169; Shay v. Camden &c. R. Co., 66 N. J. L. 334; s. c. 49 Atl. Rep. 547; O'Flaherty v. Nassau Electric R. Co., 165 N. Y. 624; s. c. 59 N. E. Rep. 1128; aff'g s. c. 34 App. Div. (N. Y.) 74; 54 N. Y. Supp. 96; Fort Worth &c. R. Co. v. Partin, Tex. Civ. App. ; s. c. 76 S. W. Rep. 236; Oliver v. La Valle, 36 Wis. 598. In Indiana an instruction that the jury might consider "the peril, if any, to the plaintiff's life at the time of the injury, and upon all the facts proved, ascertain the amount of his injuries, and award him such damages as would fully and fairly compensate him -- ican Tin Plate Co. v. Williams, 30 Ind. App. 46; s. c. 65 N. E. Rep. 304. In an action by a passenger against a railroad company to recover damages for injuries received in a collision, where there was evidence that plaintiff sustained serious bodily injuries, an instruction was proper, that if great fright was a reasonable and natural consequence of the circumstances in which the collision, with the ensuing wreckage, explosion, and conflagration, placed the plaintiff, and she was actually put in fright by those circumstances, and injury to her health was a reasonable and natural consequence of such fright, and was actually and proximately occasioned thereby, such injury was one for which damages were recoverable: Denver &c. R. Co. v. Roller, 100 Fed. Rep. 738; s. c. 41 C. C. A. 22; 49 L. R. A. 77. 47 the train at that place. So, a woman whose health was impaired by fright occasioned by being obliged to throw herself on a railroad platform to escape being struck by projecting timber on a moving car, was held entitled to recover damages where she was lawfully on the platform.48 Likewise, a woman improperly compelled to leave the caboose of a freight train in which she had ridden, at a place several hundred feet from the depot platform, who fell in a culvert and was injured while proceeding upon a sidetrack which she was required to traverse to reach the station, has been held entitled to recover not only for the physical injuries received, but also for the fright to which she was subjected while she was trying to extricate herself from the culvert to avoid approaching cars. But for mere fright unaccompanied with physical injury there is great uniformity of holding that there can be no recovery,50 although such fright results finally in bodily ailments.1 In a Massachusetts case it was held that there could be no recovery for an exposure to peril merely.52 But the action in that case was based upon a statute which provided for damages where any person "shall receive any injury in his person," etc.,53 and the determination of the questions involved depended upon a construction of the terms of that statute. "Houston &c. R. Co. v. McKenzie (Tex. Civ. App.), 41 S. W. Rep. 831 [distinguishing Gulf &c. R. Co. v. Trott, 86 Tex. 412]. Buchanan v. West Jersey R. Co., 52 N. J. L. 265; s. c. 41 Am. & Eng. R. Cas. 59; 19 Atl. Rep. 254. 49 Stutz v. Chicago &c. R. Co., 73 Wis. 147; s. c. 40 N. W. Rep. 653. St. Louis &c. R. Co. v. Bragg, 69 Ark. 402; s. c. 64 S. W. Rep. 226; Denver &c. R. Co. v. Roller, 100 Fed. Rep. 738; s. c. 41 C. C. A. 22; 49 L. R. A. 77; The Queen, 40 Fed. Rep. 694; Atchison &c. R. Co. v. McGinnis, 46 Kan. 109; s. c. 26 Pac. Rep. 453; Morse v. Chesapeake &c. R. Co. (Ky.), 77 S. W. Rep. 361; s. c. 25 Ky. L. Rep. 1159; Spade v. Lynn &c. R. Co., 172 Mass. 488; s. c. 52 N. E. Rep. 747; 43 L. R. A. 832; 5 Am. Neg. Rep. 367; Sanderson v. Northern Pac. R. Co., 88 Minn. 162; s. c. 92 N. W. Rep. 542; 60 L. R. A. 403; Deming v. Chicago &c. R. Co., 80 Mo. App. 152; s. c. 2 Mo. App. Repr. 547; O'Flaherty v. Nassau Elec. R. Co., 34 App. Div. (N. Y.) 74; s. c. 54 N. Y. Supp. 96; s. c. aff'd, 165 N. Y. 624; 59 N. E. Rep. 1128; Huffman v. Toledo &c. R. Co., 7 Ohio N. P. 67; s. c. 9 Ohio Dec. 748; Ohliger v. Toledo Traction Co., 23 Ohio C. C. 265. 51 Mitchell v. Rochester R. Co., 151 N. Y. 107; West Chicago St. R. Co. v. Liebig, 79 Ill. App. 567; Victorian R. Com'rs v. Coultas, L. R. 13 App. 228. But see Dulieu v. White, [1901] 2 K. B. 669; s. c. 70 L. J. K. B. 837; 85 L. T. 126; 50 Wkly. Rep. 76, where it is held that damages for injuries resulting from a nervous shock caused by fright, may be recovered in an action for negligent driving, although there has been no actual physical impact upon the plaintiff's person. 52 Canning V. Williamstown, 1 Cush. (Mass.) 452. 53 Rev. Laws Mass. 1902, ch. 51, § 18. |