(after stating the facts as above).
[1-3] Undoubtedly the relation between the passenger and carrier is contractual, both in origin and nature; yet the act that breaks the contract may be also a tort, just as a carrier’s unexcused failure to deliver goods intrusted to him is at once a breach and a conversion. Vanderbilt v. Ocean S. S. Co., 215 Fed. at 891, 132 C. C. A. 226. Yet a passenger cannot, like a cargo owner, look to his carrier as an insurer : some negligence, however slight, must be shown. New York, etc., Co. v. Baker, 98 Fed. 697, 39 C. C. A. 237, 50 L. R. A. 201, and cases cited. The carrier’s duty, however, not only extends to matters immediately concerned with the act of transportation, but includes protection from the personal misconduct of the carrier’s servants (Steamboat Co. v. Brockett, 121 U. S. 645, 7 Sup. Ct. 1039, 30 L. Ed. 1049), and such protection may fail when employés offer insulting and injurious language to a passenger; i. e. one having legal right to the care aforesaid (Gillespie v. Brooklyn, etc., Co.. 178 N. Y. 348, 70 N. E. 857, 66 L. R. A. 618, 102 Am. St. Rep. 503).
[4, 5] That within these principles Mrs. Thomas had a cause of action is, we think, certain. It is admitted that if, under the circumstances shown, she had been actually ejected from the vessel, she could have recovered, even though she had physically and forcibly resisted (Erie R. R. v. Winter, 143 U. S. 73, 12 Sup. Ct. 356, 36 L. Ed. 71); and the action would have also lain, had she left the ship when ordered, without any resistance or suggestion thereof (Georgia, etc., Co. v. Eskew, 86 Ga. 641, 12 S. E. 1061, 22 Am. St. Rep. 490). The mere leaving the vehicle of transport is nothing; it is the cause or reason for departure that displays, defines, and indeed constitutes, the cause of action. That the actual going was avoided is of itself unimportant. In this instance it was the order to go ashore, unless an unlawful demand was complied with, that constituted a breach of contract; and the demand by its nature was a tort of the same kind as that so exhaustively considered in the Gillespie Case. Except as to amount of damages, it makes no difference, that (as we assume) there was no verbal insult or language of contumely on the purser’s part. To be wrongfully accused of passing a worthless check is in and of itself an insult, and to offer that insult in the presence of others is a notorious aggravation thereof. No softness of speech or verbal politeness *234can take away or materially lessen the inherently insulting and injurious nature of the accusation.
The contention of plaintiff in error really comes to the assertion that, because Mrs. Thomas suffered no physical injury, her claim is 'injuria sine damno. We have not here to deal with the long-vexed question as to whether mere mental suffering, resulting from the non-malicious act of one owing no special duty to The sufferer, can either furnish basis for suit or justify an award of damáges. There was here an infraction of contractual obligation, which was also a tort; that mental distress and suffering would result therefrom in the case of a normal person we hold too plain for argument; tlierefore mental suffering proximately resulted from a legal wrong, and consequently is an element of damage. Sanderson v. Northern Pacific R. R., 88 Minn. 162, 92 N. W. 542, 60 L. R. A. 403, 97 Am. St. Rep. 509, and citations there made. Cf. The Willamette Valley (D. C.) 71 Fed. 712, and the rule in slander, Lombard v. Lennox, 155 Mass. 70, 28 N. E. 1125, 31 Am. St. Rep. 528, and in libel, McClure Co. v. Philipp, 170 Fed. 910, 96 C. C. A. 86.
[8] The section of the Italian Criminal Code was erroneously received in evidence. It did not furnish, nor tend to prove, the cause of action; if no such statute had existed, the suit would have been perfectly well brought. It did -tend to inflame the minds of the jury, by suggesting that plaintiff had been wronged through the commission of a crime — a word often of dread, and therefore of influence. The suggestion was illegitimate, for there could be no crime without criminal intent (that being the law of Italy for all we know from this record), and that the whole transaction was no more tiran a silly, though painful, mistake is especially clear.
[7] To render error harmless, it must appear beyond doubt that it did not and could not prejudice the rights of tire party complaining thereof (Vicksburg, etc., R. R. v. O’Brien, 119 U. S. 99, 7 Sup. Ct. 118, 30 L. Ed. 299, and cases cited); if it could have made no difference in the judgment it may be disregarded (Reed v. Stapp, 52 Fed. 641, 3 C. C. A. 244).
'' [8] If this verdict had been originally for $750, after careful instructions from the court that compensatory damages only could be awarded, we should hold, as of course, that so moderate a verdict was necessarily uninfluenced by testimony that could affect tire quantum of recovery only. No right of defendant could have been prejudiced by a fact so obviously disregarded. But it is insisted that, as the facts are, this is to approve a verdict (which alone supports the judgment) made, not by the jury, but by the court, with the assent of plaintiff alone, for which doctrine we are referred to North Chicago, etc., Co. v. Hoffart, 82 Ill. App. 539. This is too technical; our writ of error Inquires whether the judgment is right; often, but not always, that means was it reached by lawful methods ? But if the judgment, from all the facts shown, could and should beyond all doubt have been absolutely the same, had no error been committed, such judgment cannot be reversed without making fetishes of the rules of the game.
. It is further urged that this involves a holding that the court may *235fix a verdict; after verdict the trial judge may do so in result, by declaring a new trial unless the victorious party accept what the court deems a fair award. We have no power to directly review that proceeding; yet the plaintiff in error here, having been relieved of a verdict confidently asserted to have been the gift of passion, denies that by a remittitur the result of that passion can be eliminated. The point lacks binding authority, and our holding is that we may and must regard this judgment.as if based on a verdict for $750. So regarded, we deem it clear beyond doubt that the evidence erroneously admitted could not possibly have affected the matter. Therefore it was harmless error to admit the same.
[0j It was not error to permit plaintiff to testify that after the episode of insult she cried, was nervous, and had headache. The boundaries between mental and physical suffering are but ill defined. Emotional exhaustion is the natural concomitant of excitement of any kind, and we regard the words “nervousness” and “headache” a:? no more than the translation into common speech of emotional excitation. The line between a statement of feeling and a claim of disease or injury can better be illustrated than defined. The plaintiff could not properly have deposed that she had neuritis after the threat of ejection, without proper pleading and medical evidence.
The subject is one which in its minute variations must always be left to fair discretion in the trial court. That discretion was not abused in this instance.
Judgment affirmed.