not seriously contended that there was a real ball of fire, or that any actual physical injury was inflicted upon appellee by reason of any material force or substance coming in contact with her body. The window at which she was sitting was not broken, nor was there any evidence of force or violence in or about the room or upon her person. The bruises she received resulted from her fall on the floor, and were not occasioned by any material or other force prior to the fall. The electrical manifestation described as a ball of fire was not a real material substance, but a flash of light reflected upon the retina of the eye, or it may have been produced by light and other rays set in motion by the flash and explosion resulting from the violent force with which the metal brace came in contact with the trolley wire. No current of electricity passed through the air, nor was any material substance set in motion, whereby injury to the person of appellee was done or could have resulted. To hold that this is anything but a case of nervous shock, or terrible fright, our eyes must be closed to the facts, and our minds to an intelligent understanding of them. If the injuries resulted from the nervous shock, and of this there can be no doubt, there can be no recovery in this action without overruling many decided cases. As we read the testimony, neither experience nor scientific research could have foreseen what happened in this case, and the consequences which followed the occurrence were of such an extraordinary character as could not have been anticipated by appellant as the natural and probable result of the negligent act. There is much in this case to indulge sympathetic inquiry and to suggest speculative theory, but a proper regard for the wholesome administration of law by the application of settled principles requires this Court to hold that there can be no recovery under the facts presented at the trial in the Court below. Judgment reversed and is here entered for defendant.'

The plaintiff was proceeding on a road to a field, to drive the cows home. He rode a mule. On reaching the defendant's railroad crossing, the mule balked at the crossing. The plaintiff dismounted to drag the mule off. The defendant's engine came suddenly past, without warning, and killed the mule; the plaintiff jumping aside safely. His illness was caused by the fright. Has he an action? (1898, Mack v. R. Co., 52 S. C. 323, 29 S. E. 905.)

The plaintiff, riding in the defendant's car, was by the defendant's fault so shaken as to be thrown against a car-seat; a nervous shock and illness was thus caused. Has she an action? (1902, Homans v. R. Co., 180 Mass. 456, 62 N. E. 737; 1900, Denver & R. G. R. Co. v. Roller, C. C. A., 100 Fed. 738.) The defendant's blasting of rock shattered the house and furniture where the plaintiff lived, startled her, made her think that her mother was killed, and thus brought on an illness. May she recover? (1899, Mahoney v. Dankwart, 108 Iowa, 321, 79 N. W. 135.)

The plaintiff was in a train, which the defendants culpably caused to go at a great rate of speed down an incline, till it stopped violently. The plaintiff was nervously shocked and was injured in health. Has she an action? (1890, Bell v. R. Co., 26 L. R. Ire. 428.)

The defendant's agent wrongfully ordered the plaintiff's husband out of the ladies' waiting-room, where he was with her; the agent insisting that the man

SUB-TITLE (II): SENSORY HARMS (NUISANCE)

[See the cases post, under Title D, Mixed Harms, Nos. 323-330]

SUB-TITLE (III): MENTAL HARMS

Topic 1. Sundry Sorts of Mental Suffering accompanying some other Cause of Action

39. LORD WENSLEYDALE (BARON PARKE) in Lynch v. Knight (1861, 9 H. L. C. 577, 598). Mental pain or anxiety the law cannot value, and does not pretend to redress, when the unlawful act complained of causes that alone; though where a material damage occurs, and is connected with it, it is impossiwas not her husband. The plaintiff was nervously shocked and was made ill for a week. May she recover? (1899, Bucknam v. R. Co., 76 Minn. 373, 79 N. W. 98.)

Plaintiff and her husband resided on a farm about forty rods from the residence of defendant. One evening defendant, dressed in woman's clothes, navy-blue bicycle skirt, light waist, sailor hat, with flowers on it, and a thin, black face-veil, took a parasol, and went to her house. He had been a frequent visitor there, and was accustomed to play with her children. Although for many years he had been regarded insane or incompetent, his malady was of a harmless character. He went about the house this time, mumbling, and tapping on the floor with his parasol. The plaintiff, being pregnant, took fright and suffered a miscarriage. Has she an action? (1899, Melson v. Crawford, 122 Mich. 466, 81 N. W. 335.) The plaintiff was unlawfully threatened by the defendant that, if she did not sign a mortgage, he would arrest her husband and close up their store by attachment. She signed. The excitement and fear made her ill. Has she an action? (1889, Wulstein v. Mohlmann, 5 N. Y. Suppl. 569; 1898, Botkin v. Cassady, 106 Ia. 334, 76 N. W. 723.)

The defendant's street-car became derailed and dashed across the street towards her. She ran for safety, fell, and was bodily injured. Has she an action? (1901, Tuttle v. R. Co., 66 N. J. L. 327, 49 Atl. 450.)

The plaintiff was a pregnant woman. The defendant sent her a letter, unlawfully threatening her with imprisonment. She was terrified, and made ill. Has she an action? (1874, Grimes v. Gates, 47 Vt. 594.)

The defendant as a "practical joke" told the plaintiff that her husband had broken his legs in an accident. The shock made her ill. Has she an action? (Wilkinson v. Downton, 1897, 2 Q. B. 57.)

The plaintiff was riding in the defendant's street-car, and a collision was made imminent by the defendant's fault. In the excitement and confusion the plaintiff was frightened, went into convulsions, and became ill. Has she an action? (1892, Purcell v. R. Co., 48 Minn. 134; 1904, Mullin v. Elev. R. Co., 185 Mass. 522, 70 N. E. 1021.)

The plaintiff was on her land husking corn. The defendant was blasting on an adjacent part of the field. After two or three explosions came a terrific one which frightened the plaintiff so that she fainted and afterwards was severely ill. Has she an action? (1889, Fox v. Barkey, 126 Pa. 164.)

The plaintiff was pregnant and in bed in her house. The defendant came into the hall and began a violent quarrel with A and the plaintiff's husband, finally

ble a jury, in estimating it, should altogether overlook the feelings of the party interested. For instance, where a daughter is seduced, however deeply the feelings of the parent may be affected by the wicked act of the seducer, the law gives no redress, unless the daughter is also a servant, the loss of whose service is a material damage which a jury has to estimate; when juries estimate that, they usually cannot avoid considering the injured honour and wounded feelings of the parent.

40. CRAKER v. CHICAGO & NORTHWESTERN RAILWAY COMPANY

SUPREME COURT OF WISCONSIN. 1875

36 Wis. 657

APPEAL from the Circuit Court for Sauk County.

Action for insulting, violent and abusive acts alleged to have been done to the plaintiff by the conductor of one of defendant's trains while plaintiff was a passenger on such train. Answer, a general denial.

drawing a knife and threatening to kill the husband. The plaintiff was frightened and suffered a miscarriage. The defendant did not know that the plaintiff was in the adjoining room. Has she an action? (1877, Phillips v. Dickerson, 85 Ill. 11.)

The plaintiff was helping in her husband's public-house, standing behind the bar. The defendant negligently drove a van into the room. The plaintiff was then pregnant and sustained a severe fright and shock, and gave premature birth to a child. Would an action lie? (Dulieu v. White, 1901, 2 K. B. 669.)

The defendant's horse ran away, dashed towards the plaintiff, but was stopped by colliding with a post. The plaintiff was pregnant at the time, sustained a mental shock, and a nervous illness ensued. May she recover? (1888, Lehman v. R. Co., 47 Hun, 355.)

The plaintiff's intestate, a boy, was lawfully standing in a railway station, through which express trains passed at a high rate of speed. A moving train always drags with it, at the sides, a current of air, which moves with the train; the air close to the car goes at a speed approximate to that of the car. The defendant's train came through without warning and the air-current at its sides threw the boy down. He rolled under the train and was killed. Does an action lie? (1897, Graney v. R. Co., 140 Mo. 89, 41 S. W. 246, 157 Mo. 666, 57 S. W. 276.)

[ESSAYS:

Francis M. Burdick, "Tort Liability for Mental Disturbance and Nervous Shock" (Columbia Law Rev., 1905, V, 179).]

NOTES:

"Mental disturbance and nervous shock." (C. L. R., V, 179.)

"Mental suffering; consequent illness." (C. L. R., VI, 277.)

"Damage from nervous shock resulting from wilful act." (H. L. R., X, 252; XI, 201.)

"Nervous shock from fright caused by negligence." (H. L. R., IV, 197; VI, 260; VII, 304; X, 239, 387; XI, 202, 556; XIII, 226; XV, 304.)

"Recovery for nervous shock from tort to third person." (H. L. R., XVI,

378.)

"Sickness following mental suffering as element of damage." (H. L. R., XIX,

The substance of plaintiff's testimony at the trial was as follows: She was about twenty years of age, and a school teacher, when the facts occurred on which the action was founded. On a certain morning, she went to defendant's depot at Reedsburgh in Sauk County, for the purpose of taking the train to Baraboo in that county, but was a few minutes too late. The station agent informed her that there was no other passenger train until 9 o'clock P. M., but there was a freight and accommodation train in the afternoon. She waited for this train; purchased a ticket during the interval, paying the full fare charged on passenger trains; took said afternoon train under the guidance of the station agent; and delivered up her ticket to the conductor of the train, at his request, and was given a seat in the car in an office chair. There was another passenger on the car, besides the conductor and a brakeman. Near Ableman's (a station on the road) the other passenger and the brakeman left the car, plaintiff and the conductor being the only persons remaining in it. The conductor then came and sat down near the plaintiff, and asked her several questions as to where she was going, where she lived, and whether she was acquainted with certain persons. What followed is thus stated by the witness:

"He said, 'I suppose you are married like all the rest of the school marms?' I said, 'No, I am not.' Then he sat up nearer to me, and put his hand in my muff, and said, 'There is room for two hands in this muff, ain't there?' I said, 'No, sir, there is not for yours,' and jerked my muff away. He then said, 'My hand is pretty dirty, ain't it? It looks as though it needed washing.' I told him to wash it, then, water was plenty. He then said, 'It is thawing considerable, that's so.' I had the tassel of my muff in my hand, tossing it, and he said, 'If you don't stop twisting that, you will wear it all out.' I said, 'I don't care if I do.' He then said, 'What makes you look so cross?' I did n't answer him, but turned away from him. Pretty soon he got up, and I supposed he was going away. He stepped to the side of my chair, threw his arms around me, and held my arms down. He threw his left arm around my shoulder, and took hold of my arm between the shoulder and left elbow with his right arm; he pressed his elbow on my right arm, and then commenced kissing me. I said, 'Oh, let me go; you will kill me.' He said, 'I am not a-going to hurt you.' Then I said, 'Do let me go; I will jump out of the car, if you will.' I tried to get up on my feet, and he pushed me back in the chair, and said, 'I ain't a-going to hurt you.' Then I said, 'What have I ever done to you, that you should treat me in this way?' After he had kissed me five or six times, he said, 'Look me in the eye, and tell me if you are mad.' I said, 'Yes, I am mad.""

Plaintiff continued in the car until she reached her place of destination. It appeared from the cross-examination that the conductor in question was a young man; that the plaintiff had never seen him before; and that immediately after committing the acts described he left the car. It also appeared that on complaint of this plaintiff he was arrested and convicted on a criminal charge of assault and battery, for the same acts here complained of, and was fined $25, and committed until said fine and the costs of the prosecution were paid; and that he was discharged

Ᏺ

from the employment of the defendant company immediately upon its being informed of this charge against him by the plaintiff.

The Court refused a nonsuit, and instructed the jury, in substance, that if the plaintiff, whilst a passenger as above stated, was abused, insulted, or ill-treated by the conductor of the train, defendant was liable to her for such injury as might be found from the evidence to have been inflicted; that the measure of damages would be such compensation as the jury might see fit to award for the injury sustained, including injury to the feelings, "the elements of which are, such insult, indignity, contumely, and the like, as she may have suffered"; that they could not "give anything by way of example or punishment," or what is termed vindictive damages, as they might do if they had the party committing the assault before them; and that they were not to be governed by any different rules than those which would govern them if the action were against an individual, situated, in reference to the transaction, similarly to the defendant corporation; that they were not to assume that plaintiff had received any other injury, in reputation or otherwise, than was shown by the testimony; and that in reference to the point or points upon which they were to assess damages, they were to be governed by a sound discretion and good judgment, and give such damages as they thought, under the circumstances, should be given. .

Plaintiff had a verdict for $1,000 damages; a new trial was denied, and the defendant appealed from a judgment on the verdict:

Smith & Lamb, for appellant, argued . . . that in any case the rule of damages given to the jury was erroneous: first, because, in the absence of any actual bodily injury, there was no basis for damages for the injury to the feelings; and secondly, because, according to the language of the Court in Wilson v. Young, 31 Wis. 582, damages for injury to the feelings, like vindictive damages, "depend entirely on the malice of the defendant," and the malice of a servant cannot be imputed to his master, innocent in fact. . . .

RYAN, C. J. . . . It is said in Railroad Co. v. Finney, 10 Wis. 388, that the plaintiff in such a case is not entitled to exemplary damages against the principal, for the malicious act of the agent, without proof that the principal expressly authorized or confirmed it. Without now discussing what would or would not be competent or sufficient evidence of such authority or confirmation, we may say that we have, on very mature consideration, concluded that the rule in Railroad Co. v. Finney is the better and safer rule. . . .

It was also said in Railroad Co. v. Finney, that the action is in tort; but that, in cases not calling for exemplary damages, the rule of damages should be as in actions ex contractu, the actual loss sustained by reason of the misconduct of the conductor.

This was said arguendo, without attempt at close connection of exact statement; and it is not altogether easy to ascertain its preci meaning. If it mean, as it may, that in such cases the recovery agains