On Petition for Rehearing.
Mr. Justice Gabbertdelivered the opinion of the court:
The petition for rehearing is based upon the .ground that damages for mental suffering, unaccompanied by physical injury, or any other element *150of recoverable damages, cannot be made the subject of an independent action for damages. This question is the vital one in the case, and we held that the complaint stated a cause of action, upon the ground that for a willful breach of the contract of carriage, as alleged in the complaint, damages were recoverable for the mental suffering thus occasioned.
No reason is now advanced in support of the petition for rehearing that was not urged upon our attention in the briefs, and on oral argument at the original hearing. "We must concede, of course, that there are authorities sustaining the contention of counsel for the railroad company, but there are also cases sustaining our conclusion. We think the latter are the more logical. When there is a willful; tortious breach of the contract of carriage by those engaged in serving the public, it is certainly illogical to say that the person whose rights are thus- infringed is without remedy for mental suffering thus caused, unless such breach is accompanied by some other element- of damage. Such- a conclusion would permit railroad companies- to violate one of the most important elements of such contract, render it a nullity, and leave the passenger without remedy. Many cases are cited by counsel in the brief in support of the petition for rehearing, but, outside of those directly in point, they are, in the main, distinguishable from the case at bar. Take, for instance, our own decisions on the measure of damages in an action under section 1509, Mills’ Statutes. Damages for mental suffering, caused by grief, are not recoverable, but this conclusion is based upon the ground that damages.recoverable by the statute are.limited to the net pecuniary benefit which the plaintiff might reasonably have expected to- receive from the deceased.
The 'remaining cases cited, which hold that damages are not recoverable for mental suffering alone,are distinguishable from the one at bar, in that they *151relate to cases brought under a statute similar to our own, or where contractual relations did not exist between the parties, or where there was a mere passive breach of a contract; that is to say, if there had been a violation of the contract, it was not occasioned by willful, tortious conduct, or were for simple negligence, or where the mental suffering was not the direct result of a tort, but remote, or the defendant was not engaged in a business quasi public. It may be true that cases like the one at bar should be reached by some statutory action on the part of the legislature; but, until such a remedy is, supplied, we have no right to withhold the remedy which the law now affords. Should excessive damages be awarded by a jury in a given case, the trial court, or this court on review, can, and should, set aside such a verdict.
The petition for a, rehearing is denied.'
Chief Justice Campbell and Mr. Justice Hill concur.
Decided January 3, 1911; rehearing denied April 3, 1911.