defendant entered upon plaintiff's land, and dug up and removed the dead body of his child, it was held that plaintiff might recover compensation for the mental anguish caused thereby. It is true that in that case the Court takes occasion to repeat the old saying that a dead body is not property, and makes the gist of the action the trespass upon plaintiff's land; but it would be a reproach to the law if a plaintiff's right to recover for mental anguish resulting from the mutilation or other disturbance of the remains of his dead should be made to depend upon whether in committing the act the defendant also committed a technical trespass upon plaintiff's premises, while everybody's common sense would tell him that the real and substantial wrong was not the trespass on the land, but the indignity to the dead. Order affirmed. 43. CHAPMAN v. WESTERN UNION TELEGRAPH COMPANY SUPREME COURT OF GEORGIA. 1892 88 Ga. 763, 15 S. E. 901 ERROR from City Court of Macon. JOHN P. Ross, Judge. Action by Carleton B. Chapman against the Western Union Telegraph Company for failure to deliver a message promptly. fendant. Plaintiff brings error. Affirmed. Hardeman, Davis & Turner, for plaintiff in error. Judgment for de LUMPKIN, J. The exact question, briefly stated, is whether a person to whom a telegraphic message announcing the dying condition of a brother was sent, but by gross negligence of the company was not delivered with due promptness, so that he was unable to reach the brother's bedside before death transpired, can recover substantial damages for the mental suffering caused by the company's failure of duty. The plaintiff does not claim to have sustained any pecuniary loss, but seeks recompense for the mental anguish due to losing the opportunity of being with his brother in his last hours. The question has not been ruled on by this Court. The expressions used in Cooper v. Mullins, 30 Ga. 152, do not cover it, because that was a case of physical injury. But there is no lack of authority in other jurisdictions. The trouble lies in the directly opposite views of the several learned courts which have passed upon the question.... These rulings involve various perplexing questions on which they do not all agree. Whether the person to whom the message is sent, as well as the sender, can recover; whether the action is grounded in contract or in tort; whether the violation of a contract involving feeling is a proper basis for awarding substantial damages for injury to feelings alone; to what extent the message must show on its face the family relationship; whether the damages to be given are in their nature punitive or com pensatory, these are the chief problems encountered, and solved in variant ways. Some of the cases rest on breach of contract; of which some hold that the sendee also, being the beneficiary of the contract, can maintain the action for its violation. Cases of Henderson, Richardson, Levy, Chapman, and others. This view grapples with the big question, How can one, in an action for breach of contract, recover for mere disappointment or anguish of mind resulting from the breach? See Walsh v. Railroad Co., 42 Wis. 23. The answer given is that the subject-matter of the contract is feeling, and the damage to feeling by non-compliance was plainly in contemplation of the parties making the contract. The breach of many a contract, which the injured party desires performed, brings disappointment and blasted hopes. Yet these mental consequences, if unattended with other loss, have not usually been regarded ground of recovery. The stronger view is that the recovery, whether by sender or sendee, is had for the tort, or breach of common law or statutory duty, the contract serving merely to create the relation of duty between the parties. Cases of Young, Reese, Stuart, Wadsworth, and others. The difficulty arising here is whether, as there is no tort independently of the contract, the contract can rightly be treated as not precluding recovery in tort, and the telegraph company be dealt with, in this respect, like a common carrier. A tendency is observed to escape this difficulty by applying Code provisions which abolish the distinction between contract and tort, and allow the plaintiff to recover on a simple statement of the facts of his case. Stuart and Wadsworth cases. this State no such abolition has been effected. Regarding the nature of the damages, the majority opinion in this class of decisions is that they are strictly compensatory, and taken on the vindictive or exemplary feature only in cases where the injury is wilful, wanton, or malicious. In As against the above authorities, there are strong decisions denying the right of substantial recovery altogether. . . . This seems to us the sounder view of the law. It is remarkable that the opinions declaring in favor of recovery can point to no positive authority older than the first Texas decision, in 1881. They do refer to certain classes of cases where mental suffering is admitted as an element to be considered by the jury in making their estimate of the damages, namely, actions for slander or libel, for seduction, for assault without physical injury, for breach of promise of marriage, and for physical injuries. But, in every one of these, it has been maintained that there is a necessary and inseparable ingredient of pecuniary injury. See Telegraph Co. v. Rogers, supra. In slander and libel, where the action is founded on words not actionable per se, there must be proof of special damage. And where the words are actionable per se they have a sure tendency to degrade the citizen in the estimation of his fellows, which results in damage to his social influence and business efficiency. Besides, malice (express or implied) is an essential element in such cases. In seduction, it has been necessary from ancient times for the plaintiff to prove a loss of services, or a relation from which such loss might occur, else the action could not be maintained. Thus a brother, not standing in loco parentis, however great his anguish, and however keenly he may have felt the disgrace and mortification caused by the wrongdoer, could not recover for his mental suffering. In actions for technical assault, where no physical injury was inflicted or battery committed, damages are said by some of these authorities to be given wholly for mental suffering. Yet it may be that, the injury being essentially wilful, substantial damages are given by way of punishing or making an example of the wrongdoer. An assault is an active threat against the body, an offer of violence endangering the person, which the law redresses even in its initial stage, thus protecting the physical person more completely. . . . In actions for physical injuries, the great consideration is the loss of time and the diminution of capacity for work, of course allowing also for the pain endured. So far as mental suffering originating in phys ical injury is concerned, it is rightly treated as undistinguishable from the physical pain. On ultimate analysis, all consciousness of pain is a mental experience, and it is only by reference back to its source that one kind is distinguishable as mental and another as physical. So, in cases of physical injury, the mental suffering is taken into view. But according to good authorities, where it is distinct and separate from the physical injury, it cannot be considered. . . . In an action for false imprisonment, or for malicious arrest and prosecution, mental anguish has been held a proper subject for compensatory damages. Fisher v. Hamilton, 49 Ind. 341; Stewart v. Maddox, 63 Ind. 51; Coleman v. Allen, 79 Ga. 637, 5 S. E. Rep. 204. Of course, such injuries are essentially wilful, and besides are violations of the great right of personal security or personal liberty. Reference has been made also to cases of passengers being put off railway trains, when the mortification, insult, and wounded feelings come in to enhance the damages. From the moment the passenger is ordered to get off, he is under duress; his body is not free to remain where he chooses, and where it has the right to be. It is like an illegal arrest or an illegal imprisonment. In all these cases, where personal security or personal liberty is infringed, the mental suffering seems to be a necessary component in the injury. But conceding to the fullest extent that mental suffering enters as an item of damage, or is the gravamen of damage, in certain cases, it hardly admits of discussion to show that any deduction from them which would sanction a recovery in the present case, for mental suffering alone, would authorize a like recov ery in every case attended with mental suffering. But this would be an unwarrantable extension of them; they stand each on its own ground, in well-defined limits. In Lynch v. Knight, 9 H. L. Cas. 577, Lord Wensleydale expressed the opinion that, where the only injury is to the feelings, the law does not pretend to give redress. Though Mr. Sedgwick (Dam. § 43 et seq.) seeks to restrict this language to the case then before the Court, and disputes its accuracy as a general proposition, it may be questioned whether the learned author is able to cite a single case sustaining his contention. He does refer to a number of cases, but in all of them the mental pain may be viewed as an accompaniment or part only of some substantial injury entitling the party to compensation. But, even in cases where a recovery must be had on other grounds, it is frequently held incompetent to give damages for the accompanying mental injury. Thus, where a father sues for a grievous physical injury to his minor child, he cannot recover for the laceration of his parental feelings, even in conjunction with damages for the loss of service, though his mental sufferings be necessarily severe and heartrending. Flemington v. Smithers, 2 Car. & P. 292; Black v. Railroad Co., 10 La. Ann. 33; Railroad Co. v. Kelly, 31 Pa. St. 372; Railroad Co. v. Fielding, 48 Pa. St. 320. Statutes have been passed giving recovery for homicide against the slayer, but the policy has invariably been to confine the right of action to a party sustaining pecuniary loss. And in actions on such statutes, even by the widow of the deceased, grief and anguish cannot come in for compensation. 2 Sedg. Dam. § 573, and cases cited; Field, Dam: § 630, and cases cited; Gillard v. Railroad Co., 12 Law T. 356; Blake v. Railroad Co., 10 Eng. Law & Eq. 437, 18 Q. B. 93, 21 Law J. Q. B. 233; Railroad v. Orr, 91 Ala. 548, 8 South. Rep. 360; Killian v. Railroad Co., 79 Ga. 234, 4 S. E. Rep. 165. Where an action was brought for injury to real estate by blasting, it was held that the plaintiff could not recover for mental anxiety for the safety of himself and family. Wyman v. Leavitt, 71 Me. 227. In forcible entry and detainer, damages for mental anguish cannot be recovered. Anderson v. Taylor, 56 Cal. 131. But in addition to these cases, where damages for mental suffering in conjunction with other damages were refused, cases may be found denying the right to recover where the whole injury is to feeling. Thus where fright caused by negligence of the defendant was so great and sudden as to immediately produce physical sickness and suffering, it is held that damages cannot be had. The principle is that for the mere mental suffering there could be no recovery, and the physical injury is too remote, being unlikely to result from the wrongful act. Commissioners v. Coultas, 13 App. Cas. 222; Fox v. Borkey, 126 Pa. St. 164, 17 Atl. Rep. 604; Ewing v. Railroad Co. (Pa. Sup.), 23 Atl. Rep. 340, 34 Cent. Law J. 236, and 45 Alb. Law J. 211; Lehman v. Railroad Co., 47 Hun, 355; Allsop v. Allsop, 5 Hurl. & N. 534. . . . ... The law protects the person and the purse. The person includes the reputation. Johnson v. Bradstreet Co., 87 Ga. 79, 13 S. E. Rep. 250. The body, reputation, and property of the citizen are not to be invaded without responsibility in damages to the sufferer. But, outside these protected spheres, the law does not yet attempt to guard the peace of mind, the feelings, or the happiness of every one by giving recovery of damages for mental anguish produced by mere negligence. There is no right, capable of enforcement by process of law, to possess or maintain without disturbance any particular condition of feeling. The law leaves feeling to be helped and vindicated by the tremendous force of sympathy. The temperaments of individuals are various and variable, and the imagination exerts a powerful and incalculable influence in injuries of this kind. There are many moral obligations too delicate and subtle to be enforced in the rude way of giving money compensation for their violation. Perhaps the feelings find as full protection as it is possible to give in moral law and a responsive public opinion. The civil law is a practical business system, dealing with what is tangible, and does not undertake to redress psychological injuries. The case of Telegraph Co. v. Rogers, supra, suggests that the doctrine it opposes would open up a new field of litigation. This is worthy of remark. Except in Texas, suits like this have been infrequent in the past. If their foundation principle be sanctioned, they are likely to multiply indefinitely. Nowhere can be found any satisfactory suggestion of a principle to restrain such suits within reasonable limits. How much mental suffering shall be necessary to constitute a cause of action? Let some of the Courts favoring recovery measure out the quantity. If they are unable to do this, then, on principle, any mental suffering would be actionable, the degree of it merely determining the quantum of damages. The cases do suggest as a restriction that the plaintiff must be entitled to damages on some other ground, or to nominal damages, at least; in other words, there must be an infraction of some legal right of the plaintiff. Then the damages may be increased for the mental suffering. If the plaintiff must be entitled to substantial damages on other grounds, then mental suffering alone is not a ground for damages, which is the very point contended for. To speak of the right to nominal damages as a condition for giving substantial damages is a palpable contradiction. To give nominal damages necessarily denies any further recovery. It is said there must be an infraction of some legal right attended with mental suffering, for this kind of damages to be given. If this be true law, why is not the mental distress always an item to be allowed for in the damages? We have seen that, though allowed in some, it is in many cases excluded. Every man knows that the violation of any material right is necessarily productive of more or less pain of mind. Then why not compensate it in every instance where a right has been violated? In no case whatever are damages recoverable unless a legal duty has been broken. By the test proposed, it is first granted that mental suffering alone is not actionable; then a case arises in which there is no actual damage, unless mental suffering be such, when it is simply assumed that it is actual damage. Throwing away the lame pretence of basing recovery for mental suffering upon an otherwise harmless transgression, and stripping it of all false form and confusing technicality, it is manifest that to allow such a recovery is, in real substance, an effort to protect feeling by legal remedy. If mental suffering be a self-sufficient element of damage, as in reason it must be to recover when no other damage is claimed, why is not the causing of mental suffering itself an infraction of a legal right? |