The authorities are clear that when a trespass to realty is committed under circumstances of insult and contumely damages for mental suffering resulting as a proximate cause may be recovered in an action for the trespass. Mattingly v. Houston,167 Ala. 167, 52 So. 78.
It is also settled law that when several plaintiffs maintain the action, the damages recoverable must be such as accrue to all of them alike, though it need not be in equal proportion. 47 Corpus Juris 55, § 111.
But where the legal interest in a cause of action is joint residing in several all those who are living must join. Harris v. Swanson, 62 Ala. 299; 47 Corpus Juris 62.
The action of trespass to realty in possession of tenants in common must be prosecuted, we think, by all those so in possession as the action is for the protection of the possession. Southern Rwy. Co. v. Hayes, 198 Ala. 601,73 So. 945; Pruitt v. Ellington, 59 Ala. 454; 63 Corpus Juris 971. But it is also said in that case: "There are causes of action, in which they must, or may sever, and when they do sever, the recovery is graduated to the interest of the tenant suing." We think this case furnishes an illustration of a cause of action in which they must sever to recover damages for mental suffering. The nature of such damages is that it is severable, as held by this court in the cases cited by Justice GARDNER.
But we think that when the action is by joint tenants of property in possession, the action of trespass must be prosecuted by all, and it is insufficient to furnish a remedy for the recovery of mental suffering to them or any of them. We know of no other common-law form of action which is adapted to such a situation. So that it is one where there has been an injury for which none of the established forms of action will lie. When so, case will lie based upon the mere justice and conscience of the situation. "Whenever he shows that he has sustained damage from the tortious act of the defendant, for which the established forms of law furnish him no remedy," he may maintain an action on the case. Kelly v. McCaw, 29 Ala. 227,231; Hussey v. Peebles, 53 Ala. 432, 435; Birmingham Water Works Co. v. Martini, 2 Ala. App. 652, 56 So. 830; 11 Corpus Juris 4, § 3.
The difference between us is in respect to the name of the action in counts 9 and 10. We think they should be treated and are only maintainable as in case. *Page 415