ON MOTION FOR REHEARING.
Stayton, Associate Justice.This action was brought to recover damages for a breach of contract made by the parties to this action. The contract fixed upon the appellee the duty to perform certain services for the appellant, services public in their nature by reason of the nature of the employment which the appellee had voluntarily assumed, and for a violation of this duty, the appellee became liable to the appellant for whatever damages necessarily resulted, or which, from the nature of the contract and the known purpose for which the service was sought, were likely to accrue by reason of its breach.
The sole ground on which a rehearing is asked is, that damages compensatory in character are not given by the law for an injury to the feelings, directly resulting from a breach of contract or violation of duty; that damages resulting from such grounds are only recoverable when a case is made authorizing exemplary damages; that damages for injury to the feelings are punitory and never compensatory. We have no disposition to enter into a discussion of the vexed question, whether the recognition of a rule which gives to an individual damages for punitory or exemplary purposes, and not merely as compensation for an injury received, is in harmony with a rational administration of the laws pertaining to the adjustment of rights between man and man.
It may be, and is most likely true that the whole doctrine of punitory or exemplary damages has its foundation in a failure to recognize as elements upon which compensation may be given, many things which ought to be classed as injuries entitling the injured person to compensation. The elements of injury for which damages compensa*587tory may be given, vary in their eharacter. To some of these the means for ascertaining the compensation which ought to be given, is such that it may be fixed with almost mathematical certainty, while as to others, this degree of certainty cannot be reached.
At some periods the tendency was to restrict the recovery of damages compensatory, to such matters as were susceptible of having attached to them an exact pecuniary value, the dollars and cents lost as the result of a breach of contract or tort. At the present time, however, the fact that it may be found difficult to ascertain the exact amount of compensation which ought to be made for an injury resulting necessarily from the act of another, is not considered as any sufficient reason why compensation should not be given.
The question, in any case, is, has injury necessarily resulted to the person, property or reputation of one person from the act of another, violative of a right secured by contract or the general law of the land? If so, the act violative of right, being the proximate cause of the injury, the person who thus suffers injury is entitled to damages to compensate him for this, whatever may be the elements which make up the injury and form the basis for damages. If one person be unlawfully wounded by another, the damages he may recover as compensation will not be restricted to such sums of money as may be equal to the value of time lost, money necessarily expended in treatment with a view to recovery, and other like matters; but the physical pain, resulting from the wounding, enters into the estimate as a factor calling for compensation, more or less, as the pain may have been slight or severe, or of short or long duration.
If such a wounded person’s condition, resulting from the unlawful act, be such as to cause mental suffering, this is also to be taken into estimate. Why? Is it because the mental suffering is brought about by a maimed or disabled condition, for which of itself compensation must be made? Certainly not; physical pain is no more real than is mental anguish.
If one person is unlawfully so wounded by another that he loses a limb in- consequence thereof, and this is attended with physical pain, compensation must be made for the latter injury, simply because it is the necessary, natural or probable result of the unlawful act. If, in addition to the physical pain, the maimed condition of the same person, or the circumstances under which he is placed by the wounding, bear as necessary, natural or probable fruit, mental suffering, this is also matter for which compensation must be given; but the right to compensation for the one injury has not its foundation in the existence of the other.
*588Bach of these elements for damages goes back to a common source of right to compensation—the act of the violator of a right secured by contract or the general law of the land; and whatsoever necessarily results to the injured person from the act so violative of his right must give legal claim for compensation; and his right to this cannot be made dependent upon the motive with which the unlawful act is done, nor upon other circumstances which are ordinarily held to be sufficient to authorize the imposition of damages termed punitory or exemplary.
In Railway Company v. Isaac Levy, 59 Tex., 563, it was held that one who had not fixed upon a telegraph company, by contract, the duty to deliver a message, could not maintain an action for damages for the failure to promptly deliver it, upon the mere averment that such failure had caused him mental distress. In that case authorities were cited illustrating the extent to which courts and elementary writers had gone in support of the rule that mere mental suffering was not sufficient to enable one person to maintain against another an action, based on negligence, when neither by contract nor positive law was a duty fixed to do for him the act alleged to have been negligently performed.
It was necessary in that case that we approve or disapprove of all that was asserted to be the law in the authorities cited, nor were we then called upon to declare whether mental suffering resulting from the negligent performance of a duty, fixed by contract-or positive law, was an element entitling the injured party to damages compensatory. In Railway Company v. I. T. Levy, (59 Tex., 543), which was somewhat similar in its facts to the case before us, it was held that the action could be maintained, and that the injured party was entitled to recover any. damages which the proof might justify, besides such sum as was paid for sending the message, and that he might recover exemplary damages, if the negligence of the telegraph company was willful or gross.
There was, however, no intimation, in that case, that damages, such as are termed exemplary, were the only damages the plaintiff might recover other than thesumpaidforthe transmission of themessage; but itwas suggested that it would be necessary for the plaintiff to show a case entitling him to actual damages to entitle him to recover damages exemplary. The case ¿ast referredjto was before this court a second time, and there is much in the opinion then given which we deem inconsistent with the rules of law applicable to such cases. We see no reason to doubt that the case now before us was correctly disposed of by the *589original opinion, which, more fully considers all the questions involved in the case, and the motion for rehearing will be overruled.
Note.—The motion for rehearing in this case was passed on at the Austin term, and the case returned to Tyler.It is so ordered.
Motion Overruled.
[Opinion Delivered June 25, 1886.]