DISSENTING OPINION.
The following dissenting opinion was delivered:
Lurton, J.I am unable to assent to the opinion of the majority. I deem the law of the case, as announced, as of so dangerous a tendency as to justify an expression of the grounds of my dissent. That an action for injury to the feelings, or fright, or grief, or other mental injury cannot be sustained as an independent ground of action is conceded by the concurrent assent of authors and judges.
*717To recover for such an injury, it must be the accompaniment of actual physical injury, unless it be the exceptional action for a breach of marriage promise, or for seduction. As an accompaniment of bodily injury, or as a result of such injury, it may be the subject of consideration in the ascertainment of damages, but not otherwise.
Says an eminent writer: “ 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 or contumely. Mental anguish of the most excruciating character may, and generally does, result from charging a lady with being a prostitute, or a gentleman with being a black-leg or a cheat, yet, unless productive of special damages apart from the mental suffering occasioned thereby, no action will lie.” Woods’ Mayno on Damages, 75. ■
The Supreme Court of Texas are alone in sustaining actions of the kind now under consideration. But that Court, in an exhaustive opinion, held that the receiver of a telegram, paid for by the sender, could not sustain a.n action grounded alone upon an injury to his feelings. That case was this: A son paid for and sent a message to the plaintiff, his father, advising the latter of the death of the wife and child- of the sender. There was delay in the delivoi'y, whereby the plaintiff was prevented from attending the funeral. The Court held that there was neither allegation nor *718proof of any damage to the plaintiff, unless mental suffering alone constituted a ground of action; and they held that for mental suffering alone no suit would lie. Gulf and Santa Fe Railway Co. v. Levy, 59 Texas, 563 (S. C., 46 Am. Rep., 278).
The same Court, in a suit by the son of the plaintiff in the action just mentioned, held that the son, as the sender of the message, and as having paid for its transmission, could maintain a suit; and, said Judge Staton, in speaking for the Court, “ upon the whole case, as made by the petition and evidence, we are of opinion that the appellee was entitled to recover whatever damages the proof may justify over and above such sum as he paid for the transmission of the message, and this in the way of exemplary damages, if the negligence of the appellants, in failing to deliver the message, was willful or gross, which is a matter to he determined by the. jury.” G. C. and Santa Fe Railway Company v. Levy, 59 Texas, 542 (S. C., 46 Am. Rep., 269).
That exemplary damages cannot be recovered save in actions for a tort will, perhaps, be conceded. Compensation is the rule of damages, both in tort and contract, and only when the tort is done recklessly and wantonly may damages more than compensatory be recovered. That a contract should be breached “ recklessly,” and “ willfully,” and “wantonly” is essential to recovery of punitive damages, but such adjectives are most manifestly out of place when not applied to one *719of that class of wrongs denominated • torts. TMs Texas case is, perhaps, the first instance of the allowance of vindictive damages for the breach of a contract not producing a personal wrong. The error of such a holding soon occurred to that Court, and the exemplary damage doctrine of the Levy case was overruled; but, having begun to sustain such actions, they placed the last case upon the ingenious theory that damages for injury to the feelings could be recovered by way of compensation, and not as exemplary damages, provided the plaintiff could show that, in addition to such injury, he had such a case as would permit a recovery' of “ some damages ” upon other grounds. Stuart v. W. U. Tel. Co., 66 Texas, 580 (S. C., 59 Am. Rep., 623).
Such damages clearly cannot be recovered as exemplary damages, and the opinion of the majority does not rest upon such a basis. The rule that an action will not lie -for injury to the feelings is conceded by the majority, but the claim advanced that such rule is alone applicable to actions “ where physical injury is the sole ground of the action.” This limitation upon the applicability of the doctrine is not supported by authority, nor does it rest upon any sound deduction. That an independent action for injured feelings cannot bo maintained must be conceded. If the ground of the action be a physical injury, and such an injury be established, then, as an accompaniment of substantial physical injury, mental suffering is a sub*720ject for consideration. But if the plaintiff fail to prove a physical injury, his whole case must fail, though there he ever so much mental anguish. This is as far as any case goes. There can be no bodily .suffering without pain of mind, and the law refuses to separate the one from the other, and allows compensation for the whole injury. Johnson v. Wells, Fargo & Co., 3 Am. Rep., 245; Canning v. Williamstown, 1 Cush., 451.
“Mental pain and anxiety the law cannot value, .and does not pretend to redress when the unlawful act complained of causes that alone.” Lynch v. Knight, 9 H. L., 577, as quoted by opinion in Wyman v. Leavett, 71 Maine, 227. The last case [Wyman v. Leavett) was an action for injury to property by negligent blasting; and as an additional element of damage it was sought to recover for mental pain resulting from fright and anxiety caused by the blasting. The Court held no recovery could be had for such injury. 71 Maine, 227 (S. C., 36 Am. Rep., 303).
Upon the assumption that mental suffering is not ground of action when the basis of suit is' physical pain, it seems to be agreed that therefore such damages may be recovered where the ground of suit is not physical pain, but pecuniary loss. Non constat. If excluded in the first class of cases, or as an independent ground of action, a fortiori, it ought to be ignored when the cause of action is pecuniary loss.
The rule may only have been announced in *721actions sounding in tort, suoli as actions for injury to the person, or in cases of wanton injury to property, but this is most obviously due to the fact that no claim for such damages was ever before made where the basis of the suit was a breach of contract. The reason why an independent action for such damages cannot, and ought, not to bo sustained is found in the remoteness of such damages and in the metaphysical character of such an injury considered apart- from physical pain. Such injuries- are generally more sentimental than, substantial. Depending largelj upon physical and nervous condition, the suffering of one under precisely the same circumstances would be no test of the suffering of another. Mague and shadowy, there is no possible standard by which such an injury can be justly compensated, or even approximately measured. 'Easily simulated and impossible to disprove, it falls within all of the objections to speculative damages, which are universally excluded because of their uncertain character. That damages so imaginary, so metaphysical, so sentimental, shall be ascertained and assessed by a jury with justness, not by way of punishment to the defendant, but as mere compensation to the plaintiff', is not to be expected. That the grief natural to the death of a loved relative shall be separated from the added grief and anguish resulting from delayed information of such mortal illness or death, and compensation given for the latter only, is the task imposed by the law as determined by the majority.
*722But the rule in question has not been limited, as claimed, to actions based upon physical pain. It has, as we have already seen, upon the authority of Mr. Wood, been applied to actions of slander and libel. No matter how grave the insult or how harrassing to the feelings, there can be no recovery if the slander did not imply a crime or result in some special damage. The same rule applies in actions brought for the death of another. The plaintiff must have a pecuniary interest in such life, and in such cases there can be no recovery for the injured feelings, the grief or anguish suffered by the plaintiff’ in consequence of the death for which the suit lies. This is the rule, regardless of the relation the deceased bore to the plaintiff. Whether husband or wife or parent or child, the rule is the same; the damages are for the pecuniary loss sustained. Railroad v. Stevens, 9 Heis., 12; Cooley on Torts, 271, 272.
The true basis of recovery, says Judge Cooley, seems to be stated by Pollock, C. B.: “It has been held,” he says, “that these damages are not to be given as a solatium. That was so decided for the first time in banc in Blake v. Midland Railway Company. That case was tried before Park, B., who told the jury that the Lord Chief . Baron had frequently ruled at nisi prius, and witliout objection, that the claim for damages must be founded on pecuniary loss, actual or expected, and that mere injury to feelings could not be considered.” Cooley on Torts, 272.
*723It is legitimate to consider the evils to which such a precedent logically leads. Upon what sound legal considerations can this Court refuse to award damages for injury to the feelings, mental distress, and humiliation, where such injury results from the breach of any contract? Take the case of a debtor who agrees to return the money borrowed on a day certain, who breaches his agreement willfully, with knowledge that such breach on his part will probably result in the financial ruin and dishonor of his disappointed creditor. Why shall not such a debtor, in addition to the debt and the interest, also compensate his creditor for this ruin, or, at least, for his mental suft'orings? How can that case, or many others which may be imagined, be distinguished in principle from the one now decided? Upon what principle can we longer refuse to entertain an action for injured feelings consequent upon the use of abusive and defamatory language, not charging a crime or resulting in special pecuniary damages? Mental distress is, or may bo in some cases, as real as bodily pain, and it as certainly results from language not amounting to an imputation of crime, yet such actions have always been dismissed as not authorized by the law as it has come down to us, and as it has been for all time administered.
The rule for the general assessment of damages stated in the opinion — that they should be such as, “considering the nature and benefits of the thing promised, will be adequate compensation” *724—is sound to the extent of being axiomatic. Yet this by no means determines, or helps to determine, the question under consideration, which is: What are legal damages ? What are the injuries for which the law undertakes to give a remedy and provide a measure of compensation ? I do not understand that the opinion gives any sanction to the idea that exemplary damages are to be given as part of the “adequate compensation” to which a plaintiff is entitled for a broken obligation. Neither do I understand any sanction to be given to the idea that “adequate compensation” may be recovered in an independent action based alone upon grief, mental anguish, fright, or other metaphysical injury. Upon the contrary, the corner-stone upon which the opinion seems to rest is the assumption that “the declaration discloses a case for the recovery of some damages.” Upon this predicate is based the right to recover additional damages for the mental injury. What damage the declaration discloses the plaintiff entitled to, other than damage for injury to her feelings, is not stated. If by some damage is meant some pecuniary damage, then this I do not concede. The telegram was received and paid for at the time by her. Iler suit is not for the price paid for an undelivered telegram, or for an error in the transmission, but is for damages for delay in the delivery. She, cannot recover the price paid for transmission and delivery, and does not sue for such price. This delay in delivering is not alleged *725to have resulted in any pecuniary loss whatever. Her case is, then, a straight action for damages for delay in delivery of a telegram, and the damages sustained are not claimed to have been other than sircli as are due for injury to her feelings.
How, if it he admitted that the receiver of such a message can maintain an • action for damages consequent upon delay, what is the measure of her damages if no pecuniary loss is shown? Clearly her recovery must be limited to nominal damages unless, of course, she may prove and recover for injured feelings a legal damage. Homi-nal damages are such damages as are recoverable where there has been a violation of legal right without actual damage. In such a case the legal implication of damage remains, and, says a learned author, “ this requires some practical expression as the compensation for a technical injury; therefore nominal damages are given, as six cents, one farthing, or one cent — a sum of money that can be spoken of, hut has no existence in point of quantity.” 1 Sutherland on Damages, 9.
Hominal damages are not, therefore, proof of actual injury, nor given as the measure of pecuniary loss, hut as a consequence of a technical injury without actual loss! Where there is a breach of contract without actual loss the damages are nominal. Seat v. Moreland, 7 Hum., 574.
Upon a judgment by default in an action for damages, the plaintiff’s right to recover some damages is established, but the amount is open, and *726defendant may show he has no legal claim to damages, and, if successful, the plaintiff is entitled only to nominal damages. Turner v. Carter, 1 Head, 520.
The argument that nominal damages are inadequate to compensate for the injury sustained is not sound, unless the injury to her feelings is to he compensated. If she can recover only for actual damages sustained, as actual damage is understood by lawyers and courts, then, having sustained no pecuniary loss, and having sustained no . bodily injury, nominal damages are adequate to the injury sustained. That our feelings or sentiments would he gratified if such dereliction of duty could he visited hy imposition of larger damages hy way of solatium to the plaintiff and punishment to the defendant, is a consideration which neither court or jury can entertain. All of us agree that exemplary damages cannot he given under the law. The controversy is limited as to whether compensatory damages are given by law. The fact that the Code gives a right of action to the party aggrieved by the failure of the defendant, to comply with- its agreement, cannot possibly throw any light on the question. The Code gives a right to sue for and recover damages. This right exists independently of the statute. It is a common law right, and the opinion of Judge Caldwell so treats it. The statute does not define what damages may be recovered: "We must look to the common law to determine what are legal damages. To say that *727because tbe right to sue for and recover damages is conferred by statute, that therefore damages for injured feelings may be recovered, is a species of legal logic which I cannot appreciate. Of course, in such case, it would be a matter of no importance whether any pecuniary loss had been sustained, and to this extent • the opinion of Chief Justice Turney clearly goes.
The statute conferring no new right of action, and being only an affirmance' of the common law, and failing to define the damages for which suit would lie, we must hold that only legal damages can be recovered. Legal damages are to be ascertained by the common law. I do not understand that Judges Caldwell and Snodgrass concur with Judge Turney in the opinion of the latter that an independent action will lie, under the statute, for injury to the feelings. On the contrary, the opinion of Judge Caldwell, in which Judge Snod-grass concurs, rests tlic right of action upon the ground that the right to "sue for and recover some pecuniary damages, even nominal damages, will carry with it the right to recover, in addition, damages for mental suffering. This doctrine is only supported by one adjudged case, that of Stuart v. W. U. Tel. Co., 66 Texas.
This doctrine is, I respectfully submit, a departure from the principles upon which damages for mental injuries have been heretofore allowed. The right to recover such damages has been heretofore made- to depend upon some physical injury hav*728ing been sustained. .Bodily injury necessarily involves mental suffering, and the law has allowed a recovery for all the pains suffered from the injury. The law in such case refused to separate the one injury from- the other. But now it is proposed to join pecuniary loss to mental pain, and if the first is shown, even though it be nominal, the latter may be compensated.
There is no congruity between the elements of recovery. In the case of physical injury the law found that nature had inseparably blended mental injury, and, they being thus bound together, it refuses to separate the one from the other, and allows compensation for both. This recognition of the fact that physical pain and mental suffering were inseparably blended, and that the latter was by nature the accompaniment of the other, was the very ground upon which the law allowed damages for the latter. But to join pecuniary loss and injured feelings is to blend together that which nature has never blended', and for which there is no precedent save the single Texas case.
If such an action is to be maintained, I would prefer it to stand on its feet as an independent action. To suffer it only on condition that the plaintiff has likewise sustained some pecuniary loss, is standing the pyramid on its little end. If entitled to a standing in Court at all, let it .be conceded upon the substantial merits of the case, and not placed upon a forced construction of a statute which gives no action which did not exist before *729or upon so obvious a fiction ' as that the right to recover nominal damages for broach, of contract carries with it the right to recover for injury to the feelings. We have had some actions which have obtained a standing only by a fiction. The action by a parent for seduction of a daughter is one. The parent could only sue upon the fiction that the patent had sustained damage in that he had been deprived of the services of his daughter. That so meritorious an action should stand uponl a fiction has always been a reproach 'to the law,; and yet so conservative have the courts been that the necessity of proving some service by the daughter has been rigidly maintained as a prerequisite to any recovery, and this for the reason that the law had always been so held, and the Legislature alone could change it; for, says the eminent Judge Cooley, “the evil is not one to be corrected by judicial action; to uproot it would be to create new law, and this is the province of legislation.” Cooley on Torts, 235.
The conservatism of this observation is vastly more applicable here. If the hand of the Judge is so restrained by precedent that it cannot strike down the fiction and sustain a meritorious action upon its merits, how much more unsound and dangerous is the maintenance of a suit upon the fiction that the right to recover nominal damages for a breach of contract' will support a suit for injury to the feelings, otherwise not maintainable at all ?
*730Tlte argument pressed with so much force in the opinion of Judge Caldwell that to hold that such damages are not recoverable “would justify the conclusion that the defendant migl^t, with impunity, have refused to receive and transmit such messages at all,” is not sound. If it were true that responsibility for pecuniary losses only might not he such responsibility as public policy might require to compel the performance of duty, this would not justify us in imposing a responsibility not sanctioned by law. The remedy would be with the Legislature. Blit no such stretch of jurisdiction is necessary upon any idea of public policy. The Legislature has provided full and ample means to compel performance of duty by telegraph companies.
Section 1541 of the Code provides that the willful violation of duty in receiving and forwarding and delivering of messages shall be a misdemeanor, and the officer or agent at fault is subjected to fine and imprisonment. Thus the rights of the public are fully protected, and the necessity of imposing tort damages by way of holding the defendant up to the discharge of its duties is fully met. The action of the plaintiff is one which has nó public side; no public policy is to he sub-served, and we are left to face the question as to whether her action to recover damages for injury to her feelings can be sustained upon authority.
The novelty of a suit is not always a conclusive objection. But the fact that such an action *731has been sustained by the courts of Texas alone, and there only upon the fiction that ■ a right to recover nominal damages gives the right to recover for injured feelings, furnishes to my mind a most forceful argument. The principles upon which this suit is maintained seem to me so radical a departure from the. headlands of the law, and to so seriously threaten the uprooting of doctrines that I have been taught to revere as the very foundation stones of the system of our law upon the subject of contracts and damages, as to make it my duty to give expression to my views upon the questions involved. The views of the majority have been the result of great investigation and calm deliberation, and have been presented with all the force that is possible; and while I regret to differ so radically with gentlemen who have given such careful attention to my views, yet I am with regret compelled to adhere to the conclusions here advanced.
Agreeing fully with the views above expressed by my brother, Lurton, I am constrained to dissent from the opinion of the majority of the Court in this case.
Folkes, J.