(after stating the facts.) Pretermitting discussion of other questions in this case, we proceed to consider the main and more important question involved. In considering this question, the labor of the court has been minimized in the investigation of cases by the full and excellent briefs of counsel on both sides of the question.
The question we propose to consider is, whether or not injury to the feelings,—anguish and pain of mind,—unattended by physical injury, occasioned by the breach of duty on the part of the telegraph company, in failing to deliver the telegram promptly, can be regarded as an element of damages, under the law? Are damages recoverable at law for mental anguish, caused by the negligent omission of duty upon the part of the telegraph company, when such mental anguish is independent of and unaccompanied by physical injury of any kind? Upon this question, the decisions of the courts of last resort are not harmonious.
While there is considerable conflict in the adjudged cases upon this question, we are of the opinion that the better considered eases are against the right of recovery for mental pain and anguish, unaccompanied by physical injury. The best cases we have read which so hold are Chapman v. W. U. Telegraph Co., 88 Ga. 763; S. C. 15 S. E. 901; W. U. Telegraph Co. v. Rogers, 68 Miss. 748; S. C. 9 South. 823; Francis v. Western Union Telegraph Co. 59 N. W. 1078; Connell v. W. U. Telegraph Co., 116 Mo. 34; S. C. 22 S. W. 345. See also West v. W. U. Tel. Co., 39 Kas. 93; S. C. 17 Pac. 807; Russell v. W. U. Tel. Co., 3 Dak. 315; Butner v. W. U. Tel. Co. (Oklahoma), 37 Pac. 1087; Summerfield v. W. U. Tel. Co., 57 N. W. 973; Curtin v. W. U. Tel. Co., 42 N. Y. Supp. 1109.
The first case in this country of which we have any knowledge that held damages recoverable for mental anguish, independent of physical injury, is the ease of So Relle v. W. U. Tel. Co., 55 Tex. 308; 40 Am. Rep. 805, decided in 1881. Judge Lumpkin, in his able discussion of this question in Chapman v. Western Union Telegraph Go., says that the court in the So Relie case “adopts as law a bare suggestion made by the text writers, Shearman and Redfield, in their work on Negligence, vol. 2, sec. 756;” and that the cases referred to in the opinion were actions for physical injuries, of which the mental agony forms an inseparable component. The decision in the So Relie case is followed in Texas in quite a number of other cases, and the doctrine seems to have involved that court in some inconsistencies commented upon in W. U. Tel. Co. v. Rogers, 68 Miss. 748; S. C. 9 So. Rep. 823. This doctrine, which seems to have had its origin in this country in Texas, has been followed in Beasley v. W. U. Tel. Co., 39 Fed. Rep. 181 (U. S. circuit court for Tex.); Chapman v. W. U. Tel. Co. (Ky.), 13 S. W. 880; Young v. W. U. Tel. Co., 107 N. C. 370; S. C. 11 S. E. 1044; Wadsworth v. W. U. Tel Co., 86 Tenn, 695; S. C. 6 Am. St. Rep. 864; Western U. Tel. Co., v. Henderson, 89 Ala. 810; S. C. 18 Am. St. Rep. 348; Reese v. W. U. Tel. Co., 123 Ind. 294; S. C. 24 N. E. Rep. 163; Thompson on Electricity, § 378, et seq.-, and in Iowa, in Mentzer v. W. U. Tel. Co., 62 N. W. 1.
In case of Wadsworth v. W. U. Tel. Co., 86 Tenn. 695; 6 Am. St. Rep. 864, Judge Caldwell delivered the opinion of the court, and maintained his position with much ability; but we .are of the opinion that the very able dissenting opinion in that case by Judge Lurton announces the correct doctrine. We adhere to the doctrine announced in the eases which hold that for mental pain and anguish alone, unaccompanied by physical injury, damages are not recoverable at law. We could not hope to add anything in support of this view to the able, full and elaborate discussion of this question in the cases we have referred to.
It is not to be controverted that in cases of torts that produce physical injury, attended with mental suffering, the mental suffering is an element of damages recoverable in an action at law, because they are so intimately connected as to make separation impracticable. So, also, damages may be recovered for torts that are willful, and calculated to injure the feelings, but only in aggravation of damages, on account of the wanton and willful character of the wrong done; but no action lies for injury to the feelings merely, or for mental anguish alone.
It will be borne in mind that the damages claimed in this ease are alleged to have been caused by a breach of contract. In a majority of instances the breach of a contract merely causes disappointment, annoyance and more or less mental trouble or distress. But it would be an unwarranted stretch of the law, in our opinion, to hold that, for mental anguish caused by violation of a contract merely, damages could be recovered in an action at law. We do not think that damages for mental pain and suffering alone can be measured by any practical or just rule. It is asked, what difference' can there be between allowing damages for mental pain and anguish unattended with physical injury, and allowing damages for pain and anguish resulting from physical injury? There is this difference with us,—that damages for mental pain and anguish caused by physical injury have always been allowed by law, while damages for- mental pain and anguish, unattended with physical injury, have been allowed by law only since the decision of the So Relie case in 1881, when the Texas court departed from the doctrine of the common law, which we think sound, and announced a new doctrine, unsupported by the authority, as we believe, of any well-considered case before it. While we do not want to be understood as clinging to ideas and doctrines that are ancient, because they are ancient merely, if they are contrary to reason and right, yet we have great respect for the conservatism of the law, and will, not depart from its long and well-settled doctrines, supported by eminent authority, and founded in reason and justice.
Even if the difference in principle between allowing damages for mental pain and anguish, the result of physical injury, and disallowing damages for such pain and anguish unaccompanied by physical injury, be such as not to be defined,—merely chimerical,—this is no reason why we should say that damages for mental anguish, independent of physical injury, should be allowed. No statute allows them in such case; the common law does not allow them; and, in our opinion, the weight of adjudication is against the right of recovery in such cases. In determining a principle in the law which, in its application, at least, seems to be new and but recently thought of, it is highly important to consider precedents, and is legitimate, in our view, to look to consequences that will follow, as [certainly as night follows the day, from the recognition of a doctrine that will affect most seriously the welfare of the people. The intolerable and interminable litigation such a doctrine would foster is beyond the reach of an ordinary imagination.
The decisions of the state courts repudiating this doctrine find support in the decisions of the courts in England. In Lynch v. Knight, 9 H. L. Cas., 59.8, the court says: “Mental pain or anxiety the law cannot value, and does not pretend to redress, when the unlawful act causes that alone.” In Allsop v. Allsop, 5 Hurl. & N., Pollock, C. B., said: “We ought to be careful not to introduce a new element of damage, recollecting to what a large class of actions it would apply, and what a dangerous use might be made of it.” In Victorian Railway Com’rs v. Coultas, L. R. 13 App. Cases, 222, the court holds that an action cannot be maintained for mental shock unaccompanied by physical injury. This seems, to be the settled doctrine of the courts in England.
In the case of L. R. & F. S. R. Co. v. Barker, 33 Ark. 350, Judge English, in delivering the opinion, said: “There must be a loss to the claimant that is capable of being measured by a pecuniary standard, * * * and mere injury to the feelings cannot be considered.” Pp. 359 and 60. He said this is the rule in England, under Lord Campbell’s act, and, in this country, under similar statutes. However the precise question at bar has not been decided in this court before this.
The federal courts have also repudiated the doctrine that an action can be maintained for mental pain and anguish not accompanied with physical injury, in W. U. Tel. Co. v. Wood, 57 Fed. 471; Chase v. W. U. Tel. Co., 44 Fed. Rep. 554; Crawson v. W. U. Tel. Co., 47 Fed. Rep. 544; Tyler v. W. U. Tel. Co. 54 Fed. 634; Kester v. W. U. Tel. Co. 55 Fed. Rep. 603; Galum v. W. U. Tel. Co., 59 Fed. Rep. 433; Cobb v. W. U. Tel. Co. (Kas.), 84 Fed.--. Only one federal court in Texas has followed the Texas cases, as far as we know.
In Wood’s Mayne on Damages at p. 75, it is said: “ Mental anguish of itself has never been treated as an independent ground of damages, so as to enable a person to maintain an action for that injury alone; neither has insult nor contumely.” Pierce on Railroads, says, (p. 302): “Mental is not readily distinguished from physical suffering. Pain of mind, when connected with bodily injury, is the subject of damages; but it must be so connected in order to be included in the estimate, unless the injury is accompanied by circumstances of malice, insult or inhumanity.” See Pollock on Torts (Enlarged Am. Ed.), 54, 55, 56, and note by editor, p. 56; 2 Greenl.Ev.267; Field, Dam., §§ 26, 73; 26 Am. & Eng. Enc. Law, p. 862.
Several of the recent text writers have approved the doctrine of the Texas courts, notably Thompson on Electricity, and Sedgwick on Damages.
To support the opinion in the So Relie case, § 756 of Shearman & Redfield on Negligence is quoted in the opinion, which is as follows: “In case of delay or total failure of delivery of messages relating to matters not connected with business, such as personal or domestic matters, we do not think that the company in fault ought to escape with mere nominal damages.” This may be true, but, if so, it presents a question for tbe action of the legislature. The courts do not make law, but determine what it is, not what it ought to be. At farthest, this is their legitimate province, only.
After the fullest argument by the learned counsel in this cause, and the best consideration we have been able to give the question, we are all agreed that no recovery can be had at law for damages for mental suffering alleged to have been endured in this case, no physical injury having been alleged.
The judgment of the circuit court is affirmed.