gard it in the one light or the other, it is the wrongful personal intention to injure that calls forth the penalty. To this wrongful intent knowledge is an essential prerequisite. But in legal contemplation, previous intent is presumed from ratification, and a converse proof of ratification must be made when a previous intent is not presumed. The learned judge correctly apprehended this rule when he placed the defendant's liability to punishment in damages upon the ground of his implied approval of his employee's misconduct; and had there been any proof of such approval, any testimony of general instructions of which this libel was the outgrowth- any evidence as to ratification-the jury might have been warranted in inferring a wrongful motive to -- got away with a considerable amount of clothing. Mr. Krowley is of the opinion that a young lady boarder named Mamie Schultz knows something about the theft. The girl has been a boarder at the house for about seven weeks, and according to Dick's statement Mamie had a number of admirers, and on several occasions she has stayed out late at nights; and no later than last Sunday night she climbed through the window of Mr. and Mrs. Krowley's sleeping apartments, and Dick is of the opinion that she gained an entrance through the same window last night. On entering the house Mrs. Krowley discovered a bureau drawer and clothes closet open, and to her surprise found that the house had been ransacked and a large number of pieces of her underclothing, together with rib-fit the wrongful act. But absence of proof of his bons and other articles, were missing. Dick visited the police station and notified Captain Bimson, who advised him to go before the recorder this morning and make a complaint." On the point of damages the court said: "It will be noticed that the proposition laid down by the court is not alone that the defendant may be visited with exemplary damages for language inserted in his paper, although without his knowledge or consent, but that the imposition of punishment in damages will be controlled by the same considerations which fix his liability for the publication, unless the defendant adduces proof of his disapproval of the libellous article; in other words, that the defendant may be mulcted in punitive damages upon the same proof which established his liability for compensatory damages, unless he shows it appears that he disapproved of the act of his subordinate. The liability of the defendant to respond both in compensatory and exemplary damages in a proper state of the evidence is not questioned. It is the proposal to relieve the plaintiff of the burden of proof, and to transfer it to the defendant, that invites discussion. Proprietors of newspapers are unquestionably liable in law for whatever appears in their columns. Libellous publication is a wrongful act, and when to a wrongful act we add testimony from which a wrongful motive can be inferred, punitive damages may be inflicted. But the maxim, respondeat superior, is a rule of limitation as well as of liability. If a principal must, on the one hand, answer for his agent's wrong-doing, on the other hand, his liability is circumscribed by the scope of his agent's employment, unless there be proof of a ratification by him of his agent's misconduct. No rule of law is better established than this. The same principle applies, and with equal force, to the doctrine of exemplary damages. Without stopping to review the history of this class of so-called damages, it is sufficient to say that the right to award them rests primarily upon the single ground — wrongful motive. The ingrafting of this notion on to personal suits has resulted in an anomalous rule; the doctrine of punitive damages being a sort of hybrid between a display of ethical indignation and the imposition of a criminal fine. But whether we re disapproval, absence of proof that defendant had reproached his employee, or that he had discharged him in fine, absence of all proof bearing on the essential question, to-wit, defendant's motivecannot be permitted to take the place of evidence without leading to a most dangerous extension of the doctrine respondeat superior. A plaintiff whose claim to punitive damages rests upon a wrongful motive of defendant not inherent in the offense which fixes his legal liability must present some proof from which such wrongful motive may be legally inferred. Inasmuch as the plaintiff below failed to do this, the instruction of the court upon this point was misleading." In Rosenthal v. Davenport, Minnesota Supreme Court, June 15, 1888, it was held that when papers, required to be filed in the office of the clerk of the district court, are presented to him for that purpose, it is his duty to file and deposit them in a proper place for the keeping of such papers, so that they may be found upon reasonable examination. If neglecting to do so, he misplaces such papers, he is chargeable with negligence. The court said: "It was the officer's duty to file each one of the several papers thus delivered to him for that purpose, and to deposit them in a proper place for the keeping of such papers so that they might be found, and the fact of their having been filed discovered upon such examination as one interested in the subject, or the officer himself, might be expected to make. If he failed in this duty he was negligent. But it is urged that the plaintiff's attorneys were themselves negligent in presenting the several papers in one package, for filing without informing the clerk that they related to different matters. In view of the facts that the several papers were indorsed in the matter above stated, and that the clerk was required to and did file each one of them, it certainly cannot be stated as a legal proposition that he was under no duty to examine and to see what each paper was, and to dispose of it accordingly. Neither does the case justify a legal conclusion of negligence on the part of the plaintiff's attorney in not having discovered the misplacement of the release by the clerk." In Sherry v. Perkins, Massachusetts Supreme Judicial Court, June 19, 1888, defendants entered into a scheme, by threats and intimidation, to prevent persons in plaintiff's employ from continuing in such employ, and in like manner to prevent other persons from entering plaintiff's employ; and in pursuance of such scheme caused a threatening banner to be carried in front of plaintiff's shop, the effect of which was to deter persons from continuing to work for or engaging with plaintiff, and the latter's business was thereby injured. Held, that plaintiff was entitled to an injunction restraining the carrying or displaying of the banner. The court said: "The acts and the injury were continuous. The banners were used more than three months before the filing of the plaintiff's bill, aud continued to be used at the time of the hearing. The injury was to the plaintiff's business, and adequate remedy could not be given by damages in a suit at law. The wrong is not, as argued by the defendant's counsel, a libel upon the plaintiff's business. It is not found that the inscriptions upon the banners were false, nor do they appear to have been in disparagement of the plaintiff's business. The scheme, in pursuance of which the banners were displayed and maintained, was to injure the plaintiff's business, not by defaming it to the public but by intimidating workmen, so as to deter them from keeping or making engagements with the plaintiff. The banner was a standing menace to all who were or wished to be in the employment of the plaintiff, to deter them from entering plaintiff's premises. Maintaining it was a continuous, unlawful act, injurious to the plaintiff's business and property, and was a nuisance, such as a court of equity will grant relief against. Gilbert v. Mickle, 4 Sandf. Ch. 357; Spinning Co. v. Riley, L. R., 6 Eq. 551. Diatite Co. v. Manufacturing Co., 114 Mass. 69, was a case of defamation only. Some of the language in Spinninq Co v. Riley has been criticised, but the decision has not been overruled. See Diatite Co. v. Manufacturing Co., ubi supra; Assurance Co. v. Knott, L. R., 10 Ch. 142; Saxby v. Easterbrook, 3 C. P. Div. 339; Loog v. Bean, 26 Ch. Div. 306; Food Co. v. Massam, 14 id. 763; Thomas v. Williams, id. 864; Hill v. Davies, 21 id. 778; Day v. Brownrigg, 10 id. 294; Gaskin v. Balls, 13 id. 324." In Adreveno v. Mutual Reserve Fund Life Ass'n, 34 Fed. Rep. 870, it was held that the provisions of the Revised Statutes of Missouri, section 4017, prohibiting a physician from testifying as to any information he may have acquired from any patient while visiting him professionally, may be waived by the patient in an application for life insurance. The court said: "It has been held in this State in three cases, viz., the case of Groll v. Tower, 85 Mo. 253; Carrington v. City of St. Louis, 89 id. 208; and Squires v. City of Chillicothe, id. 226, that section 4017, which I have just read, renders a physician incompetent to testify as to the physical condition of a patient in those cases only where the patient or his legal representatives insist that he shall not testify. In other words, the statute is construed in this State as conferring a privilege merely that may be waived; it is not declaratory of any public policy. The public is not concerned in excluding the testimony of a physician as to the condition of a patient if the patient himself does not object to such disclosures. In this respect the courts of this State follow the rulings in New York and Michigan under a similar statute, as appears by the cases of Cahen v. Insurance Co., 41 N. Y. Super. Ct. 296; Railroad Co. v. Martin, 41 Mich. 667. As the patient is at liberty to waive the privilege which the law affords him, it appears to me it is immaterial whether the patient waives the privilege by calling the physician to testify in his behalf, or whether he waives it, as in this case, by a clause contained in the contract on which the suit is brought; and if the patient himself waives the privilege by a clause contained in the contract, that waiver, in my judgment, is binding on any one who claims under the contract, whether it be the patient himself or his representative." RIGHT OF INNOCENT PURCHASER OF LAND TO APPARENT BUT NOT REAL FIXTURES. II. IT is not the chattel mortgage that preserves the original character of the property. It is the intention of the parties. Such mortgage is very cogent evi dence of such intention, for no one would mortgage as personalty what was not intended should remain personalty. If the intention then dates back of the annexation, the fact that the mortgage upon the chattel was not executed till afterward cannot affect the question. But if the chattel has once become a fixture, and as such a part of the realty, then no subsequent agreement or intention can affect its character. It is on this ground that the decision in Trull v. Fuller, 28 Me.545, can be reconciled with the majority of the cases. The chattel mortgage in this case was upon property already attached to the realty. Of course such a mortgage could not convert into personal property what had once been real estate. A purchaser without notice at an execution sale of the real property was held to be the owner of the property sought to be affected by the chattel mortgage in a suit brought by the chattel mortgagee to recover the value of such property in trover. The best considered cases hold that a purchase of the realty for value without notice, either actual or constructive, takes title to whatever appears to be a fixture, provided of course it was attached to the realty with the knowledge of the person claiming it, or to have a lien upon it. All the decisions heretofore cited, except those from New York and Maine, recognize this rule as sound. In addition the following cases cited are to the same effect: Ridgeway Stove Co. v. Way, 141 Mass. 557; S. C., 6 N. E. Rep. 714; Davenport v. Shants, 43 Vt. 546; Southbridge Sav. Bank v. Exeter Machine Works, 127 Mass. 542; Hunt v. Bay State Iron Co., 97 id. 279; Thompson v. Vinton, 121 id. 139; Pierce v. George, 108 id. 78: Rowand v. Anderson (Kans.), 6 Pac. Rep. 255; Pierce v. Emery, 32 N. H. 484; Haven v. Emery, 33 id. 66. See Strickland v. Parker, 54 Me. 263. These cases all recognize that notice would preclude the purchaser or mortgagee from claiming the chattel as a fixture. tion that there must be no material injury to the fixture or the freehold involved in the removal. How illogical, to attack a rule restricted in its operation by In Pierce v. George the court practically decided that the recording of the chattel mortgage was not notice. The question was not discussed, but the plaintiffs, who sought to recover for the conversion of the prop-citing the consequence of its operation beyond its reerty affixed to the realty, claimed under a chattel mortgage thereon duly recorded with the records of personal property. Defendant claimed under a real estate mortgage, and he had judgment as to all of the property attached to the realty. The question of notice, either actual or constructive, is not referred to in the opinion, and the case is far from being satisfac tory. strictions. This is the reasoning of the court. There is a strong dissent in the case, the judges standing three to two. Powers v. Dennison, 30 Vt. 752, is an important decision on the question of notice. A building was erected by one upon the land of another. It was so attached to the land that it would have become a fixture had it not been for the implied understanding that the erector of it should have the right to remove it. The court held that a subsequent mortgagee of the real estate took a lien upon the building, and could hold it as against the owner, and that the possession of the building by the owner of it was not notice to the mortgagee of his rights. This case, so far as the question of constructive notice by possession is concerned, cannot by regarded as sound. The decision in Fryatt v. Sullivan Co., 5 Hill, 116, affirmed by Court of Errors, 7 Hill, 529, is placed on the ground that the annexation was of such a nature that the chattel could not be removed without material injury, and it is on this ground that this case is distinguished in Ford v. Cobb, 20 N. H. 351. The annexation of the chattel to the land must be with the knowledge of the owner of it or the one holding a lien on it. The act of the owner of the chattel in attaching it to realty cannot prejudice the lienor unless he knows of it or impliedly consents to it. This demonstrates the absurdity of the reasoning of the court in the case of Voorhes v. McGinnis, just cited, for in the case put by the court the chattel mortgagee could have insisted upon his lien, even after the brick and timber had become part of the house, if he did not consent to their being used in the construction of the house, or known of it. It is true he could not tear down the house or replevy the materials, but he could sue for conversion, and recover their value as against the owner of the house. The decision of the court in Voorhes v. McGinnis, 48 N. Y. 278, is, so far as the reasoning of the court is concerned, indefensible. A chattel mortgage was executed upon boilers and an engine, which were subseWhether the filing of a chattel mortgage is sufficient quently placed in a mill. But they were so attached to give notice to a purchaser of the realty that apparto the building that they could be removed without ent fixtures are personalty, is as we have seen a quesmaterial injury either to the building or to the engine tion about which there is a decided difference of opinand boilers. The court held the lien of a subsequent ion. There is certainly less authority against the docreal estate mortgage prior. The decision was not trine that such filing is notice than there is in favor of placed upon the ground that the real estate mortgagee it. But the spirit of the registry laws of this country had no actual notice of the chattel mortgage, and that are in harmony with it, and would even seem to reit not being filed, there was no constructive notice. quire such a rule. On the other hand, there are more The chattel mortgage may have been filed, but the case decisions in support of the contrary rule. Moreover does not disclose that fact. The court rested its judg- it cannot be said that the letter of the various recordment upon the following reasoning: "I am of opin- ing acts comprehends the case of a chattel, which in ion upon general principles-that is, unless there be spite of its annexation to the land, remains personsome specific agreement to the contrary, or some cir- alty, for this would involve the assumption of what is cumstances controlling the general rule, that the the exact reverse of the fact, i. e., that the chattel has boilers and engines, shafting and gearing, became a become a fixture. The recording acts do not atpart of the realty, and passed to the plaintiff upon his tempt to affect any property which is not in fact real purchase. It is said that the execution by Kimmey estate, and when it is admitted as it is by all the deof a chattel mortgage upon it before it was placed in cisions, that in certain cases the chattel does not bethe mill would be sufficient to preserve its personal come a fixture, then the letter of the recording act character. Although unknown to the plaintiff, this does not touch the case at all. In answer to the argufact existed in the case. It comes to this: A man em- ment founded upon the spirit of such acts, may it not ploys a carpenter and mason to build a brick house for be said that notice is given in just the manner that the him upon his lot, and pays them in full the price spirit of such acts requires. It is true that the notice agreed upon. The mason puts his brick in the walls. is in a different record, and may be in a different ofThe carpenter places his joists and timbers in the fice; but it is a public record, and can the purchaser proper places in the house. The house is finished and of the land claim that he was not bound to look to is occupied by the owner. It then appears that the such a record, for the reason that he had a right to asmaker of the brick held a chattel mortgage upon them, sume that the property alleged to be personalty was a exeuted by the mason, and that the sawyer of the tim- fixture? In view of the well-settled rule that such ber held a chattel mortgage upon it, executed by the property may or may not be a fixture according to carpenter. Are these articles, now a part of the the intention of the parties interested in it, has the house, still held upon the chattel mortgages so that the purchaser an absolute right to regard it as a fixture creditors can despoil the house to obtain their posseswithout examining a public record where the record sion or compel the owner to pay their value?" With of a lien upon it as personalty would disclose the fact all deference to the judge who wrote this opinion, this that it is not a fixture? The moment it is admitted is not what the case came to. The same judge had that personal property affixed to the realty in a certain just before stated in his opinion that the engine and manner is not necessarily a fixture, it becomes the boilers could be removed without material injury. duty of the purchaser to ascertain whether it has been Would that have despoiled the building? The case incumbered as personal property by an examination before the court and the case put by the court as illus of the records where such an incumbrance would be trating to what an injustice the rule holding the enfound. Is there any hardship in this? There would gine and boilers chattels would lead were widely dis- certainly be none whatever after the rule had been similar. No one has ever doubted that in the case settled, as purchasers could then conform to it. On the court mentioned the property would be real estate. the other hand, the interests of trade would be subThe rule has invariably been stated with the limita-served by protecting the chattel mortgagee, for with out such protection the vendor of machinery and other property which can be used only by attaching it to the freehold, would be unwilling to sell on this kind of security, and in many instances the purchaser is unable to pay cash or give any other security. The vendor would not care to take a mortgage on the realty, as that would postpone his lien to a prior mortgage not only as to the land as it was before the chattel was attached to it, but also as to the chattel itself, which would then become a fixture. There is a strong dissent from this view by Judge Dillon in Bringhoeff v. Munzenmaier, 20 Iowa, 513; but what was said was obiter, as the chattel which was mortgaged as such was at the time attached to the real estate, and had prior to the giving of the mortgage been a fixture. He says: "They had no constructive notice of the plaintiff's right, because the plaintiff's mortgage was a chattel mortgage, and recorded and indexed as such. There never having been any actual severance of the articles in question, and the same being admitted to constitute as between vendor and vendee part of the realty, a subsequent purchaser would not be bound to take notice of a chattel mortgage thereon; the statute requiring those to be separately recorded and separately indexed. If the defendants at the time of their purchase had been shown to have had knowledge of the plaintiff's mortgage, the question then arising would be much more difficult of solution. But without such knowledge it appeared to us plain that the defendants had the title to the property in question. Any other rule would practically nullify the registry laws or else introduce the startling doctrine that in examining the titles to real estate the searcher must also examine the records of chattel mortgages. If the defendants, prior to their purchase from Rawson, had visited the premises, they would have seen the property in question, constituting to all appearances part of the real estate. There would be nothing on the ground, and nothing in the nature of the property, to advise them of the plaintiff's adverse right or ownership. Rawson, and not the plaintiff, it seems was in possession. If defendants should then examine the records of real estate transfers, they would there discover nothing advising them of the plaintiff's claim. They are therefore entitled to and do stand free from it." Sowden v. Craig, 26 Iowa, 162, appears, as we have seen, to hold the contrary. In Sisson v. Hibbard, 75 N. Y. 542, the court ruled that a purchaser at an execution sale was not a bona fide purchaser, and could not claim chattels as part of the realty which were annexed to the realty with the understanding that they were to remain person alty. Nothing can be constructively severed from the freehold and made personalty as against an innocent purchaser of the land, even if the contract be recorded, unless of course it is recorded among conveyances of real estate. If it is found there the recording act makes it constructive notice. But if it is a chattel mortgage of what was part of the real estate, the filing and recording of it among chattel mortgages is no notice whatever. Nothing short of an actual severance of the thing will suffice. Lacustrine Fer. Co. v. L. G. & Fer. Co., 82 N. Y. 476, where the court say: "We think it must be a general rule that the owner of land cannot by agreement between himself and another make that which in its nature is land, personal property as against a subsequent purchaser for value without notice, there having been no actual severance of the subject of the agreement, when the subsequent grant was made, and we are also of opinion that in the case supposed the doctrine of constructive severance cannot be applied to defeat the rights of subsequent purchasers." Fryatt v. Sullivan Co., 5 Hill, 116, is considered as holding that where one converts to his own use the chattels of another by annexing them to the real estate in such a manner that they cannot be removed without serious injury to the freehold and the real estate, with such chattels attached, is afterward sold to an innocent purchaser, the former owner of the chattels cannot maintain trover against such purchaser of the real estate. This case was affirmed by the Court of Errors. 7 Hill, 529. But it does not lay down any such doctrine. The owners knew that the chattels (engine and boiler) were affixed to the real estate, and they being so annexed to it that they could not be removed without destroying the building in which they were placed, and the owner having knowledge of the annexation, must be deemed to have assented to it as against an innocent purchaser. The decision was based upon this ground. Bronson, J., says: "But there can be no doubt that they acquired just as good a title to the engine and boilers as they did to the rest of the real estate." There was no opinion in the Court of Errors. In a dissenting opinion in Morrison v. Berry, 42 Mich. 389; S. C., 36 Am. Rep. 446, Judge Cooley says: "It was said by Mr. Justice Ladd in Cochran v. Flint, 57 N. H. 514, 547, that If it were held that A. having in his possession the movable thing of B., annexed it it without consent of the owner to the real estate of C., it would thereupon, and by force of that act alone, become the property of Co. Such a decision, so far as his investigations had extended, would stand alone, and would be so manifestly contrary to reason and justice, as well as the fundamental principles of law relating to the acquisition and ownership of property, that he could only follow it from a reason of duty that would amount to moral compulsion. We have been as much unable as that learned judge was to find any such decision. One man cannot give away the property of another in this manner. The consent of parties that shall convert a chattel into an inseparable part of realty is the consent of the parties owning the chattel and the realty respectively." The prevailing opinion did not conflict with these views of Judge Cooley. The owners of the chattel had consented to the annexation of the same to the freehold. But Judge Cooley held that this consent was annulled by fraud, and the other judges held that it was not. Here the difference between the two opinions lay. Stillman v. Flenniken, 58 Iowa, 450; S. C., 43 Am. Rep. 120. holds nothing contrary to the above opinion. It appears from the case that the owners of the chattel knew that it was annexed to the land. This is not directly stated in the case, but the reasoning of the court leads to this conclusion. D. & Bay City R. Co. Busch, 43 Mich. 571, seems to hold that the grantor of the realty is not liable in any case where the chattel of another has been affixed to the land without his consent, and the grantee subsequently buys the real property. A railroad company was sued for the conversion of certain ties which had been placed on the roadbed by contractors before the road was turned over to the company. But the language of the court modifies the apparent scope of the decision: "Having deliberately chosen to wait until the property not only changed custody, but was also annexed still more firmly by ballasting, he cannot now treat as personalty in the hands of the railroad company converted by a mere failure to give it up on demand, what became to his knowledge a part of the realty in the hands of the contractors, against whon he had a remedy for the only conversion that ever took place." GRAND FORKs, Dakota. GUY C. H. CORLISS. TELEGRAPH – NEGLIGENCE IN DELIVERING MESSAGE, MENTAL SUFFERING OF PLAINTIFF. TENNESSEE SUPREME COURT, APRIL, 1888. WADSWORTH V. WESTERN UNION TEL. Co. In an action against a telegraph company, plaintiff alleged that W. delivered a message to defendant, directed to her informing her that her brother was in a dying condition; that through defendant's negligence the message, and also a subsequent one informing her of her brother's death, both sent at her expense, and paid for by her, were not delivered until too late to enable her to be present at his death or at his funeral-" to her damage ten thousand dollars." Held, that mental suffering caused by plaintiff's inability to reach her brother in time, on account of defendant's negligence, was a proper element of damage, and the court erred in sustaining a demurrer to the declaration. John D. Martin, for appellants. Turley & Wright, for appellee. CALDWELL, J. This suit was brought in the Circuit Court at Memphis by Mrs. Jennie H. Wadsworth and her husband, T. J. Wadsworth, against the Western Union Telegraph Company, for failing to promptly deliver to her the following telegraphic messages: "Memphis, October 2, 1887. To Mrs. T. J. Wadsworth, Byhalia, Miss.: Your brother, Billie Howell, is in a dying condition at 105 Jefferson St. R. C. Walden." And: "Memphis, October 3, 1887. To Mrs. T. J. Wadsworth, Byhalla, Miss.: Mr. Howell died this moruing. Advise us what to do. Will look for some one on morning train. R. C. Walden." It is averred in the declaration that Byhalia is about twenty-eight miles from Memphis, and that the two places are connected by direct line of telegraphic wire and railroad; that Billie Howell, a brother of Mrs. Wadsworth, one of the plaintiffs, was "seized with a mortal malady,' in the city of Memphis, on the 2d day of October, 1887, and that, at about the hour of 7 o'clock P. M. of that day, R. C. Walden, a "friend of the family," presented to the defendant the former of the messages just set out, written upon one of its day or full-rate blanks, and that it was accepted by the defendant for immediate transmission and delivery to her; that through the gross, wanton and reckless negligence of the defendant, and in palpable violation of its duty, the message was by the defendant detained and not delivered until 11:30 o'clock A. M. of the next day, and several hours after the death of Howell; that he died about 6:30 o'clock A. M. on the 3d of October, 1887, and a few moments thereafter the second of said telegrams was presented and accepted for immediate transmission and delivery, as was the other one, and that through the same gross, wanton and reckless negligence of the defendant this second message was detained, and not delivered by the defendant, until about the same time the other one was delivered; that by reason of this negligence and breach of duty on the part of the defendant, Mrs. Wadsworth was prevented from attending her dying brother and administering to him in his last hours, and also from making desired preparations for his interment; that the messages were sent at her expense; and that she paid full toll therefor "to her damage ten thousand dollars." Demurrer was sustained and the suit dismissed. Plaintiffs have appealed in error. The first assignment of demurrer is that the declaration shows no cause of action, in that it avers no pecuniary damage or personal injury; that mental suffering, unaccompanied by pecuniary injury, will not sustain an action. Clearly the declaration discloses a case for some damage; and to this extent, it must be con. ceded, the action in sustaining the demurrer was erroneous. The messages in question were couched in decent language, and were lawful in their purpose. Such being true, Walden had a legal right to send them, and Mrs. Wadsworth a legal right to receive them; and it was the plain duty of the defendant to deliver them promptly. Its dereliction of duty and violation of her legal right, as averred in the declaration and confessed in the demurrer, unquestionably gave her a right of action. "Every infraction of a legal right, in contemplation of law, causes injury. This is practically and legally an incontrovertible proposition. If the infraction is established, the conclusion of damages inevitably follows." 1 Suth. Dam. 2. But the question most debated at the bar by learned counsel, and the one of most importance and interest in this case, is whether or not injury to the feelings, and pain of mind occasioned by the defendant's breach of duty to Mrs. Wadsworth, can be regarded as an element of damage under the law. In actions for personal injury, the general rule, which is too familiar to admit of citations of authority to sustain it, is that both bodily pain and mental suffering connected therewith are to be considered by the jury in estimating the amount of damage sustained, and the sum to be recovered by the plaintiff. Upon the latter element it is very truthfully and appropriately remarked by a learned author that "the mind is no less a part of the person than the body, and the sufferings of the former are sometimes more acute and lasting than those of the latter. Indeed the sufferings of each frequently, if not usually, act reciprocally on the other." 3 Suth. Dam. 260. After laying down the rule as we have stated it to be, and citing some of the very many decisions adopting it, Mr. Wood says: "But we do not apprehend that the rule has any such force as to enable a person to maintain an action where the only injury is mental suffering, as might be thought from a reading of the loose dicta and statements of the court in some of the cases. So far as I have been able to ascertain the force of the rule, the mental suffering referred to is that which grows out of the sense of peril or the mental agony at the time of the happening of the accident, and that which is incident to and blended with the bodily pain incident to the injury, and the apprehension and anxiety thereby induced." Wood's Mayne Dam. 74, note. On same subject Mr. Cooley says: "But in this country, as well as in England, the ground of recovery must be something besides an injury to the feelings and affections, or the loss of the pleasure and comfort of the society of the person killed. There must be a loss to the claimant that is capable of being measured by a pecuniary standard." Cooley Torts, 271. These are the strongest statements of the rule contended for by the defendant which we have seen, and to them we give our full approval when applied to the class of cases with respect to which they are made. But they are applicable peculiarly, not to say exclusively, to actions for injury to the person where physical injury is the sole ground of the action, and without which the action will not lie at all. This however is an action on the facts of the case, which is permissible under our Code, and may include all matters embraced in an action ex delicto, and also those proper to be considered in an action ex contractu. The plaintiff, having a clear right of action for some damage, as we have already seen, may maintain her action, and recover all the damage she may show herself to have sustained by reason of the wrongful act of the defend. ant; and in ascertaining the amount thereof, all proven elements of damage, admissible in either form of action, are for the consideration of the jury. In an |