Why should the law of torts lag behind the law of damages? Can it do so in a sound system? . . . It seems there is no public policy to be subserved by giving damages for mental suffering as a general rule, and the law does not allow it. . . There was no error in sustaining the demurrer to so much of the plaintiff's petition as sought recovery simply for pain and anguish of mind. Judgment affirmed. 44. SULLIVAN v. OLD COLONY STREET RAILWAY COMPANY SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1908 197 Mass. 512, 83 N. E. 1091 TORT by a married woman for personal injuries sustained on the evening of April 17, 1905, when the plaintiff was a passenger on a car of the defendant, from the car leaving the track and coming in collision with a post upon the edge of a sidewalk of High Street in Dedham. Writ dated May 3, 1905. At the trial in the Superior, Court before Crosby, J., the defendant admitted its liability, and the evidence related solely to the question of damages. The plaintiff's attending physician testified that the physical examination on the day following the accident showed, so far as he could recall, but a single bruise, which was over her right lower ribs and was about the size of a silver dollar, and that she was at the time of the trial and had been since the accident suffering from no organic trouble, but from a functional disturbance of the nervous system, commonly known as hysteria, and that it came on principally as a result of the excitement and fright of the accident, which would be an adequate cause of her condition, though the blows and "all those things" came in as contributing causes. It further appeared that about November 1, 1905, she became pregnant, and that on July 5, 1906, she gave birth to a child. . . . A physician, called by the defendant, testified on his cross-examination that "premature birth might result from a nervously disturbed condition of the mother if such condition affected the mother profoundly." At the close of the evidence, the defendant asked the judge to instruct the jury, among other things, as follows: 1. The jury should take great care not to allow the plaintiff any damages by reason of the death of the child. . . . 2. There is no sufficient evidence that the fact that the child did not live was in any way attributable to the accident. The presiding judge refused to give the second instruction requested. He did, however, give the first instruction requested, but also charged the jury upon this branch of the case as follows: "There is a difference in the claim made by the plaintiff and that of the defendant as to whether the birth of this child and its subsequent death was in any way or manner attributable to this injury which Mrs. Sullivan sustained, and I instruct you that if . . . you should find that . . . the child's birth, the date of its birth, the day of its birth, and its subsequent death, was affected by reason of the injuries which Mrs. Sullivan received while she was a passenger in the car of the defendant as she claims, . . . it would be your duty to take into account that mental suffering, if there was any, in connection with the damages which she has sustained. If she does not satisfy you that this child's death was attributable to the accident, or if you should find that she did not suffer mentally as the result of this child's death, then you would leave out of consideration that question in passing upon the question of damages." The jury returned a verdict for the plaintiff in the sum of $2,100; and the defendant alleged exceptions. Asa P. French (J. S. Allen, Jr., with him), for the defendant. RUGG, J. The connection between the tortious act of a person sought to be charged for the consequences of an injury, as the cause, and the injury sustained, as the effect, must be established by a fair preponderance of the evidence before a plaintiff can be permitted to recover. . . . Although careful instructions were given to exclude the death of the child as an element of damage, the jury were permitted to take into account the mental suffering of the mother on this account. She was thus permitted to recover money compensation for the sorrow and anguish endured as a result of the contemplation of the death of her child conceived nearly seven months and born fourteen months after the injury. This is extending the rule of damages beyond any limits heretofore recognized. It is an expansion which finds no support in any principle of law. Mental suffering connected with and growing out of physical injury is a legitimate element to be considered in determining damages against a person wrongfully causing an injury. Such suffering is to a greater or less extent inseparably connected with physical harm, and flows from it as a natural result. Canning v. Williamstown, 1 Cush. 541. The rule of damages is a practical instrumentality for the administration of justice. The principle on which it is founded is compensation. Its object is to afford the equivalent in money for the actual loss caused by the wrong of another. Recurrence to this fundamental conception tests the soundness of claims for the inclusion of new elements of damage. The landowner, whose home, rendered dear by ties of ancestry and personal attachment, is seized under the power of eminent domain, has a right to receive no larger sum, on account of the suffering of mind he endures in leaving it, than a mere stranger, holding it purely for speculative purposes. The parent, who sues for the loss of services of his minor child, cannot recover for his own sympathetic sorrow in witnessing the sufferings, which cause his loss of service. In an action for deprivation of consortium, the anguish of mind of the husband, in observing the bodily pain of a sensitive wife, forms no element in the damages he may recover. These considerations apply peculiarly to a case like the present. Wealth brings no consolation to those who mourn. The grief occasioned by the death of loved ones touches chords in the human soul which lie outside the compass of pecuniary relief. The solace, which stills the voice of lamentation, comes from sources which cannot be found through the medium of money. The mental suffering, for which damages can be recovered, therefore, are limited to those, which result to the person injured, as the necessary or natural consequence of the physical injury. But sentiments of grief, sorrow, and mourning, which are aroused by extraneous causes, thoughts, or reflections, are excluded. The contemplation of the suffering and death of a child, begotten long after the event complained of, is too remote from the original physical injury to the parent and too intangible and ethereal to be connected with the original wrong of the defendant as a result to be reasonably apprehended from such a cause. The law cannot enter the realm of pure sentiment in this class of case, and award pecuniary compensation for those injured feelings, which spring from sympathy and the severance of ties of love and affection. It follows that there can be no recovery for the mental suffering which ensues from the contemplation of the pain, deformity, imperfections, or characteristics of any other person or thing. See McDermott v. Severe, 202 U. S. 600, 26 Sup. Ct. 709, 50 L. Ed. 1162. The extent to which recovery may be had for mental suffering has been the subject of somewhat conflicting decisions in various jurisdictions. But so far as we have been able to discover, there is unanimity of decision that, for mental suffering of a class like that under discussion (except by express provision of statute, see Kelley v. Ohio R. Co., 58 W. Va. 216, 52 S. E. 520, 2 L. R. A. N. s. 898), there can be no recovery (Maynard v. Oregon R. Co., 46 Or. 15, 78 Pac. 983, 68 L. R. A. 477; Bovee v. Danville, 53 Vt. 183; Western Union Tel. Co. v. Cooper, 71 Tex. 507, 9 S. W. 598, 1 L. R. A. 728, 10 Am. St. Rep. 772; Railway Co. v. Douglass, 69 Tex. 694, 7 S. W. 77; Railway Co. v. Chance, 57 Kan. 40, 45 Pac. 60; Butler v. Manhattan St. Ry. Co., 143 N. Y. 417, 38 N. E. 454, 26 L. R. A. 46, 42 Am. St. Rep. 738; Lennox v. Interurban St. Ry. Co., 104 App. Div. 110, 93 N. Y. Supp. 230). Exceptions sustained.1 1 [For mental suffering caused by a seduction of a daughter, see Nos. 7274, post. PROBLEMS: The plaintiff's declaration averred that she worked in a paper-box factory, receiving nine dollars a week; that she bought a ticket at the defendant's dancehall and entered; that while dancing with a gentleman she was seized by the defendant, addressed in rude language, and evicted from the hall; and that she suffered great mental distress and anguish. Was the last allegation demurrable? (1898, Maisenbacker v. Society Concordia, 71 Conn. 369, 42 Atl. 67.) The defendant takes part in an unlawful post-mortem dissection of a corpse, Topic 2. Fear 45. CANNING v. WILLIAMSTOWN SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1848 1 Cush. 451 THIS was an action on the case, to recover damages for an injury sustained by the plaintiff, in consequence of a defect in a bridge in the town of Williamstown. The trial was before Forbes, J., in the Court of Common Pleas. It was in evidence, that the plaintiff was riding over the bridge, in which is wantonly mutilated. May the relatives recover for mental anguish? (1895, Young v. College, 81 Md. 358, 32 Atl. 177.) The plaintiff was corporally disabled by the fault of the defendant. May he recover for his anguish in meditating on the helpless condition of his family consequential upon his inability to support them? (1904, Maynard v. Oregon R. & N. Co., 46 Or. 15, 78 Pac. 983; 1896, Atchison, T. & S. F. R. Co. v. Chance, 57 Kan. 40, 45 Pac. 62.) The plaintiff is corporally injured by the fault of the defendant. May he recover for the "humiliation of going through life in a crippled condition? (1899, Chicago City R. Co. v. Anderson, 182 Ill. 298, 55 N. E. 366.) The plaintiff had bought in one store something which she carried in a box, and then entered the defendant's store to make another purchase. The defendant approached her, rudely snatched the box from her, and examined it, and ordered her to leave the store. He mistook her for a shop-lifter. May the plaintiff recover for the humiliation and mental anguish? (1909, Small v. Lonergan, Kan., 105 Pac. 27.)] A mob took the plaintiff into the woods, put a rope around his neck, threatened and made a demonstration of hanging. May he recover for mental anguish ? (1904, Warner v. Talbot, 112 La. 817, 36 So. 743.) NOTES: "Recovery for mental suffering." (C. L. R., I, 327, 404, 483, 489.) "Mental anguish in telegraph cases: conflict of laws." (C. L. R., VII, 273.) "Mental anguish in negligence cases: must be result of physical injury, not in contemplation thereof." (C. L. R., VIII, 658.) "Mental suffering, without physical injury, due to negligent transmission of telegram." (H. L. R., XVII, 572.) "Recovery by parent for mental suffering due to negligent mistreatment of child." (H. L. R., XX, 149.) "Damages for mental suffering." (M. L. R.. II, 150, 226, 411, 485, 641, 642.) "Damages for mental anguish unaccompanied by physical injury." (M. L. R., IV, 244, 308.) "Damages for mental suffering." "Damages for mental suffering." "Damages for mental anguish." (M. L. R., III, 74.) (M. L. R., V, 126, 382, 474.) CHAPTERS ON THE JURAL NATURE AND ETHICAL BASIS OF THIS RIGHT: Henry Sidgwick, “Elements of Politics," c. IV, § 4, par. V. Henry T. Terry, "Some Leading Principles of Anglo-American Law," c. XI, § 340, p. 336. A. J. Willard, "Principles of the Law: Personal Rights," c. XXVI, p. 244.] company with two other persons, in a light carriage drawn by two horses; that when the horses had arrived near the centre of the bridge, it gave way, and the plaintiff was precipitated about fifteen feet down upon the rocks and stones in the stream below, by which he was injured in the cheek or side of the face, and became sore and lame; and that the plaintiff, though the injury was not very severe, was, by the accident, put in considerable peril. It was contended, for the defendants, that they were not liable in damages for the risk and peril sustained by the plaintiff, but only for the actual damage to his person. It was contended, on the part of the plaintiff, that the life of the plaintiff was put in great jeopardy; that the accident could not have happened in the manner proved, without great terror and mental suffering; and that the jury, in estimating the damages, had a right to consider not only the injury to the person of the plaintiff, but also his mental anguish, and the risk and peril attending the accident. The presiding judge, after calling the attention of the jury to the provisions of the Rev. Sts. c. 25, § 22, instructed them, that towns are liable, in cases like the present, only so far as they are made liable by the express provision of law; and, that for mere risk and peril, no action. can be sustained against them; but, that where an injury to the person is sustained, the damages are to be commensurate with the injury; and, that if the injury to the person is of such a character, as to be necessarily attended with mental suffering, such suffering is, within the meaning of the statute, a part of the injury to the person, and may be considered in the estimate of damages. The jury thereupon returned a verdict for the plaintiff, and the defendants filed exceptions. D. N. Dewey, for the defendants. H. Byington, for the plaintiff. METCALF, J. The Rev. Sts. c. 25, § 22, provide, that if any person "shall receive any injury in his person," by reason of any defect or want of repair in a road, he may recover, of the party that is by law obliged to repair the road, the amount of damage sustained by such injury. - The argument for the defendants assumes that the plaintiff sustained no injury in his person, within the meaning of the statute, but merely incurred risk and peril, which caused fright and mental suffering. If such were the fact, the verdict would be contrary to law. But we must suppose that the jury, under the instructions given to them, found that the plaintiff received an injury in his person a bodily injury and that they did not return their verdict for damages sustained by mere mental suffering caused by the risk and peril which he incurred. And though that bodily injury may have been very small, yet if it was a ground of action, within the statute, and caused mental suffering to the plaintiff, that suffering was a part of the injury for which he was entitled to damages. |