(after stating the facts.) Many questions are presented in the record for our consideration, but the controlling one, for the purpose of disposing of this case here, is whether or not the plaintiff is entitled, under the circumstances shown in the case, to recover damages for mental anguish and humiliation, unaccompanied by physical injury. The evidence shows, sufficiently to warrant a finding, that the station' agent of the railway company, while the plaintiff was in the station for the purpose of having his baggage checked preparatory to taking passage on the train, and while he was conferring with said agent concerning the checking of his baggage, willfully and without provocation insulted him by the use of profane, threatening and defamatory language. We do not determine whether the plaintiff should be held, under the circumstances, to be a passenger in the sense that the railwa)' company owed him the same duty of protection from willful acts of its servants that it owes to passengers on trains. We prefer to dispose of the questions of the defendant’s liability for the mental suffering and humiliation as elements of damages, disconnected from any physical injury, on the broader ground, treating the plaintiff, for the purpose of testing this question, as a passenger in the most complete sense.
The precise question involved has never been determined by this court. In St. Louis, I. M. & S. Ry. Co. v. Wilson, 70 Ark. 136, the question was mentioned but expressly reserved for decision, the court saying: “It is certain there could be no recovery for mental anguish unaccompanied by personal injury, where there was no willful, wanton or malicious wrong done. Whether there could be recovery for mental suffering alone, we reserve for decision.”
In Peay v. Western Union Telegraph Co., 64 Ark. 658, the court held, with reference to the liability of a telegraph company for negligent failure to promptly transmit and deliver a message, that there could be no recovery for mental anguish independent of and disconnected from a physical injury. And in Richardson v. Davis, 76 Ark. 348, we held that there could be no recovery of damages by a female from an individual for mental anguish on account of an indecent proposal made to her. The court said in the opinion that mental suffering and humiliation are not elements of damages, citing the Peay case.
In Texarkana & Ft. Smith Railway Co. v. Anderson, 67 Ark. 123, the court held that- in an action by a passenger to recover damages for being wrongfully carried beyond her destination, where no physical injury resulted or other loss or injury except mental anxiety and suffering, there could be no recovery for the mental suffering. In that case there were no facts or circumstances indicating malice or willfulness, and no insult offered to the plaintiff, but the mental suffering was claimed to have resulted from the anxiety on account of the delay in g-etting back tp her destination, and in being compelled, during the period of the delay, to remain in the company of a crowd of partially intoxicated, boisterous and profane passengers.
So, we see that it has been decided by the court that a corporation is not liable for mental suffering, unaccompanied by physical injury, inflicted by the negligence of its servants in the performance of a contract, there being no element of willfulness in the commission of the negligent act complained of; and that an individual is not liable for the wrongful infliction of mental suffering, unaccompanied by physical injury, even where there is the element of willfulness in the commission of the act complained of.
It only remains, therefore, to decide whether a railway corporation is liable for such mental suffering and humiliation, unaccompanied by any physical injury, inflicted upon passengers by the wrongful act of one of its servants wilfully committed. The questions already decided by this court, as above stated .are sought to be distinguished from the facts of this case on two points, viz: First, that the act complained of was committed by a servant of the railway company in violation of the contractual duty which the carrier owed to its passengers to afford them protection from either the negligent or wilfully wrongful acts of its servants; and second that the injury resulted from the willful act of the servant of the carrier. We do not think that the distinctions are sound. It is true that a carrier owes to its passengers the absolute duty of protection against either the negligence or willfulness of its servants. St. Louis, I. M. & S. Ry. Co. v. Dowgiallo, 82 Ark. 289, and authorities cited.
^But the carrier in such case can be required to respond only in such damages as the law takes heed of as proper elements of damages. If mental suffering and humiliation, unaccompanied by any physical injury, are not accounted in law as elements of damages in other cases, we see no reason why they should be made so in testing the liability of a carrier for the wrongful acts of its servants. While, as has been said, the carrier is liable to the passenger for all proper damages resulting from negligent or willful acts of its servants, yet mental suffering, independent of physical injury, is not specially made an element of.damages applicable in that kind of case. It is not because the carrier is not liable for the willful acts of its servants that it escapes responsibility for such injury, but because the character of the injury is not such as the law affords compensation for.
The reason that mental suffering, unaccompanied by physical injury, is not considered as an element of recoverable damages is that it is deemed to be too remote, uncertain and difficult of ascertainment; and the reason that such suffering is allowed as an element of damages, when accompanied by physical injury, is that the two are so intimately connected that both must be considered because of the difficulty in separating them. 4 Sutherland on Damages, § 1245; Fell v. Rich Hill Coal Mining Co., 23 Mo. App. 216; Chapman v. Western Union Telegraph Co., 88 Ga. 763; Johnson v. Wells, Fargo & Co., 6 Nev. 224; Wyman v. Leavitt, 71 Me. 227; Living v. Pittsburg, etc., Ry. Co., 147 Pa. 40.
“So far as mental suffering originating in physical injury is concerned,” says Judge Lumpkin in the Georgia case cited above, “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 distinguished as mental and another as physical. So, in case 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 can not be considered.”
“Mental anguish of itself, it is said, 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 or contumely.” Wood’s Mayne on Damages, p. 75. And it was said in an English case many years ago that “mental pain and anxiety the law can not value, and does not pretend to redress, when the unlawful act complained of causes that alone.” Lynch v. Knight, 9 H. L. 577. Mr. Sutherland says that “mental suffering alone,, unconnected with any other legal wrong, will not, according to the great weight of authority, support an action; it is only when some act is done which will constitute a cause of action that such suffering can be considered. This is not a cause of action, but an aggravation of damages, when it naturally ensues from the act complained of.” 4 Sutherland on Damages, § 124$.
The authorities are by no means harmonious on this question, and we confess that there are many cases holding contrary to the views we express. Most of them, however, are cases decided in States where the courts are fully committed to the doctrine of allowing recovery for mental suffering unaccompanied by physical injury. Some of the authorities, though holding to the contrary doctrine, are in States where the courts had previously refused to allow such an element of recovery in telegraph cases. These cases are found in the States of Georgia New York, and Missouri. Cole v. Atlanta & West Point Ry. Co., 102 Ga. 474; Gillespie v. Brooklyn Heights Ry. Co., 178 N. Y. 347; Smith v. Atchison, T. & S. F. Ry. Co., 97 S. W. 1007. We are unable to hamonize the doctrine of these cases with the former holdings of the same court that there could be no recovery for such an element of damages against a public service corporation- for a breach of its contracts; nor is the reasoning of the above-cited cases reconcilable with each other. We fail entirely to see how a distinction can be founded upon the mere fact that the injury results from the willful act of the servants of the corporation or from a willful breach of its contract.
If the infliction of mental suffering alone can be made the •subject of an action to recover damages in any case, we can not see why such recovery should not be allowed, even though it is inflicted by mere negligence, and not by a willful act.. (As this court has already held in the Peay case that a negligent act resulting in mental suffering only can not be made the subject of an independent action for damages, we think that the only logical result of that holding is to say that such damages can not be recovered merely because there is an element of willfulness in the commission of the act complained of.)
When this court reached the conclusion in the one case that the corporation could not be. required to respond in damages for mental anguish alone on account of the negligent act of its employees, and in the other case that an individual could not be made to respond in damages for mental suffering alone on account of a willful act, we think that it established a doctrine that necessarily precludes recovery in this case. We prefer to adhere to the rule, as a sound one, that mental suffering alone, unaccompanied by physical injury or any other element of recoverable damages, can not be made the subject of an independent action for damages, even where the act or violation of duty complained of was wilfully committed; and that such suffering does not of itself constitute a cause of action, but is merely “an aggravation of damages when it naturally ensues from the act complained of.”
There is no evidence tending to show that the plaintiff sustained any injury at all except mental anguish and sense of shame and humiliation on account of the insulting language used toward him by the station agent; but the instruction of the court permitted the jury to find a verdict in favor of the plaintiff based entirely upon those elements of damages resulting from the insulting language used as an independent grounds of action.