The necessity or expediency of statutory regulations to effectuate an inherent or granted governmental power is determined by the law-making body in the enactments, and the courts interfere only when the regulations are patently arbitrary and have no fair relation to any legislative power.

The necessary result is that by whatever name it may be called, the power to conserve the general welfare of its people to the end that the government may accomplish its primary purposes, is inherently vested in every sovereign government, and that its exercise may be regulated by paramount organic law, but may not, by implication at least, be wholly prohibited, since that would inevitably. tend to permit a partial or perhaps a total destruction of the government as an efficient agency to sustain sovereignty under which human society may exist in comparative safety with opportunities to advancement in civilized development, which is the chief object of all govern

ments.

So there may exist in the paramount sovereign government of the United States of America under the Federal Constitution a National Police Power, or a power similar thereto, that can be exerted in the states of the Union by virtue of appropriate Acts of Congress designed to effectuate its granted powers, or the inherent sovereign powers of the Nation, "in order to form a more perfect Union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare and secure the blessings of liberty to" "the people of the United States," that being the purpose of the Federal Constitution as appears from the first statement in that preeminent chart of human government. J. B. WHITFIELD.

Tallahassee, Fla.

Probably the rule of non-assessment of damages for mental suffering in the case of the breach of an ordinary business contract, is the cause of the frequent and unfounded belief that mental suffering is never a compensable element of damage in

contract.

It has long been well settled that mental suffering is not such a result as the parties to such a contract must have contemplated as a natural and probable result of the breach. If two parties make a common business contract, it is obvious that, although its nonfulfillment may cause worry, anxiety and mental suffering, such results are not contemplated or expected by the parties. A business contract contemplates only business elements.

Owing to the fact that breach of promise to marry is, as to measure of damages, treated practically as if it were a tort, there is no practical reason why we should give it extended consideration here. It is sufficient merely to call attention to the wellknown rule that mental suffering is a compensable element of damage in actions

*This article, by the author of the recent work of Bauer on Damages, will be read with interest by the profession, as it treats of a subject that has given lawyers and judges much trouble.Editor.

(1) See Bauer on Damages, § 79. (2) Hamlin v. Great Northern Ry. Co., 1 Hurl. & N. 408, 156 Eng. Repr. 1261.

rought for breach of contract to marry.3 we wish to account for this on ordinary Contract grounds, we may easily do so, as to result of any breach of contract could possibly be more natural and probable than this.

There are, however, several instances of breach of contract in which the elements

damage include mental suffering, withut any such similarity to tort cases as as been mentioned as occurring in breach i promise.

Contracts for acts that are solely or prinpally for social purposes naturally would give rise to practically no valid claim for amages, if compensation for mental sufering were not allowed. In an Alabama case it was held that defendant, a liveryman who had broken his contract to furnish a carriage and team for the special purpose of carrying the plaintiff, his friends, and relatives from his home to a church three miles away, where plaintiff was to be married, and thus delayed the wedding, it was proper to assess damages for mental suffering. In this case, the Court said: "In this particular case, considering the subject-matter of the contract, the special purpose and exceptional use to which plaintiff intended to put the carriage, which was communicated and well known to the defendants, and with reference to which they contracted, it would seem that it was within the reasonable contemplation of the parties when the contract was entered into under the special known circumstances, that the immediate effect and proxmate result ensuing from a breach of the contract by the defendants would cause the plaintiff inconvenience, annoyance, mental harassment, or distress, and make him to suffer physical delay with the attendant discomfort, as well as mental pain in consequence thereof. Certainly it is but common knowledge that some distress of mind.

(3) Wells v. Padgett, 8 Barb. (N. Y.) 323.

(4) Browning v. Fies, 4 Ala. App. 580, 58 So. 931.

5

must be the natural and proximate consequence of being delayed and not having proper conveyance to meet an appointment of such delicate nature." The same court had already held that, for a breach of contract of transportation, a woman might recover for mental distress and worry due to being prevented and delayed in securing stateroom accommodations while on her bridal trip. It had also been held by the same court that, where defendant contracted to carry plaintiff by automobile and delayed two hours in doing so, plaintiff could recover for his mental suffering brought about by the delay. This latter decision may be sound, but not enough facts are reported to indicate appreciable mental suffering or a previous contemplation of the likelihood of such suffering.

In Louisiana it has been held that a dressmaker, upon breach of a contract to make wedding dresses, must compensate for mental suffering. "The bride, it seems, was counting absolutely upon having the dresses, and found herself entirely unprovided for the entertainments incident to her wedding tour and to her arrival at the home of her husband in Louisville, Ky. For want of suitable dresses, she had to forego these entertainments, and to decline all invitations in the several cities she visited, and, in fact, to cut short her bridal tour; all to her great chagrin and mortification and humiliation." This case was decided under a provision of the Louisiana Civil Code, Art. 1934, as follows: "When the debtor has been guilty of no fraud or bad faith, he is liable only for such damages as were contemplated, or may reasonably be supposed to have entered into the contemplation of the parties at the time of the contract." The fact that this provision of the code states substantially the common-law rule as to damages in contracts, effectively disposes of any possible objec

tion to this case as being not pertinent to the common-law rule.

One of the clearest cases of the allowance of damages for mental suffering in contract is Aaron v. Ward, a New York case, in which the mental pain of plaintiff, a woman, who was, contrary to her contract with defendant, expelled from defendant's bath-house at Coney Island. The Court said: "The action is for a breach

of the defendant's contract and not for a tortious expulsion. ** It is contended for the defendant that as the action was on contract, the plaintiff was not entitled to any damages for the indignity of her expulsion from the defendant's establishment. It may be admitted that, as a general rule. mental suffering resulting from a breach of contract is not a subject of compensation, but the rule is not universal. It is the settled law of this state that a passenger may recover damages for insulting and slanderous words uttered by the conductor of a railway car as a breach of the company's contract of carriage." The same rule obtains where the servant of an innkeeper offers insult to his guest.10 And it must be borne in mind that a recovery for indignity and wounded feelings is compensatory and does not constitute exemplary damages."11

The fact that the assessment of damages for mental suffering is often accompanied by the award of exemplary damages, and the further fact that mental suffering, being an element intangible and incapable of exact measurement by any satisfactory standard, may easily be made the basis of very heavy damages, with a real purpose in the jury to punish the defendant, induce confusion between exemplary damages and damages for mental suffering. The further

(7) Lewis v. Holmes, 109 La. 1030, 34 So. 66, 61 L. R. A. 274.

(8) 203 N. Y. 351, 96 N. E. 736. (9)

Gillespie v. Brooklyn Heights R. Co., 178 N. Y. 347, 70 N. E. 857.

fact that some courts have practically made exemplary damages a mere type of compensatory damages, adds confusion to confusion.12

The reasoning of the defense in such cases as the one just quoted, sometimes has been that damages for mental suffering are a species of exemplary damages, and are not at all compensatory; that exemplary damages are never assessed in a contract case, and that therefore damages for mental suffering cannot be assessed in such cases. This contention is not only unsound, but absurd, the first premise being without the least support in reason. Damages assessed for suffering of the mind are as strictly compensatory as any damages can be. Being an element of actual damage in some cases of contract, mental suffering should be held compensable in such cases.

In New York it was also held that, where the plaintiff, having paid the price of admission to defendant's .dance hall, was wrongfully expelled, a recovery could be had for wounded feelings.18 In this case, as in many others, the plaintiff would be without any effective remedy if he were denied the right to recover for mental suffering, as, in many if not most instances, this would be the only element of damages upon his wrongful exclusion in violation of the contract.

In most cases of breach of a telegraph company's contract to transmit a message announcing death or sickness, the only element of damage worth while is mental suffering. Those courts, including federal, which do not allow damages for this element in such cases, are simply and effectively wiping out all the benefits of any remedy for such breach. The plaintiff, in this, as in most other cases, is suing, not for the mere satisfaction of establishing some theoretical legal right; he is suing for substantial damages. To say to the plaintiff in such a case, "Yes, we find for you,

(12) Bauer on Damages. p. 120. (13)

Smith v. Leo, 92 Hun (N. Y.) 242.

but find that the limit of recovery in the case is the fifty cents paid for the message," is truly to feed the plaintiff on mere husks and to hand out "justice" of a kind that will do much to make the laity lose faith in courts and law. There is a crying need for federal legislation permitting the assessment of damages for mental suffering in all such cases in the federal courts. During the recent war, many messages were negligently delayed for days in the receiving office, to the great distress of the persons most concerned, the agents of the company probably knowing the practical relief from all responsibility for such messages, given them by the federal rule, so far as interstate messages were concerned.14

Where breach of a contract to transport, bury or care for a corpse occurs, obviously the only important damage is mental suffering. This element has often been allowed,15 but it has sometimes been refused.16

(14) See: Western Union Tel. Co. v. Hill. 163 Ala. 18, 50 So. 248; Mentzer v. Western Union Tel. Co., 93 Ia. 752. 62 N. W. 1, 28 L. R. A. 72. 57 Am. St. Rep. 294; Stuart v. Western Union Tel. Co., 66 Tex. 580, 18 S. W. 351, 59 Am. Rep. 623; Reese v. Western Union Tel. Co., 123 Ind. 294, 24 N. E. 163, 7 L. R. A. 583, all allowing recovery for mental suffering; and see: Chase V. Western Union Tel. Co., 44 Fed. 554; Western Union Tel. Co. v. Sklar. 126 Fed. 295; Connelly v. Western Union Tel. Co., 100 Va. 51, 40 S. E. 618, 93 Am. St. Rep. 919. There are many other cases on both sides of this question. All these cases should be carefully differentiated from such cases as Stansell v. Western Union Tel. Co., 107 Fed. 668, which holds that breach of a contract by a telegraph company to transmit money can give rise to no recovery of damages for mental suffering occasioned by plaintiff's consequent eviction from her home. Such a case is merely one of an ordinary business contract, and mental suffering is not contemplated by the parties as a natural and probable consequence of the breach, and besides, the eviction was not a proximate result of the breach of contract.

(15) Louisville & N. R. Co. v. Hull, 113 Ky. 561, 68 S. W. 433, 57 L. R. A. 771; Renihan v. Wright, 125 Ind. 536, 25 S. E. 822, 9 L. R. A. 514, 21 Am. St. Rep. 249; Lindh v. Great Northern Ry. Co., 99 Minn. 408, 109 N. W. 823, 7 L. R. A. (N. S.) 1018. Hale v. Bonner, 82 Tex. 33, 17 S. W. 605, 14 L. R. A. 336, 27 Am. St. Rep. 850; Dunn v. Smith (Tex. Civ. App), 74 S. W. 576. (16) Hall v. Jackson. 24 Colo. App. 225, 134 Pac. 151.

17

In all of these cases, some will say that there should be no damages for mental suffering allowed, unless other damage is proven, and such is the weight of case authority. But is there any sound legal reasoning behind such a rule? Has there not been a confusion of damage with legal injury? One must admit that, without legal injury, there can be no recovery for mental suffering. Legal injury may, however, consist of a wrong that gives rise to a right of action regardless of the presence or absence of damage, or it may be grounded in damage in a case in which damage is the gist of the action. Breach of contract is a legal injury, whether it results in damage or not. If breach of contract causes mental suffering as the sole damage proximately resulting from it and such mental suffering has been or should have been contemplated by the contracting parties as a natural and probable result of the breach, why not compel the payment of substantial damages for the wrong? Is the fear of the consequences of increasing litigation greater than the desire to do that which justice. manifestly demands? Has the arbitrary denial of the right to damages for mental suffering in such cases, on the ground that litigation may be unduly encouraged, ever been anything but judicial legislation?

The field within which damages for mental suffering are allowed in cases of breach of contract is, in general, much broader than is usually realized. Some jurisdictions allow damages in such cases where other jurisdictions do not, and some courts have allowed the assessment of damages for mental suffering in some kinds of contract cases wherein other courts, if they ever have to pass on such cases, will pretty certainly not permit such damages to be assessed.18 But the number of cases of assessment of damages for mental suffering for breach of contract is considerable, and the rule that such damages may be assessed

(17) See cases cited in 17 C. J. 837. note 86. (18) See cases cited in Rauer on Damages, § 79.

in those contract cases in which mental suffering is a natural, probable and proximate result of the breach is correct on principle and established by a considerable line of case authority.

Mental suffering in contract should not be considered as being governed by any strange and unusual rules. It must not be treated as being outside the field of contract. All of the confusion that has ever arisen in this subject has resulted from the inability or unwillingness of some of the courts to see that the only real questions involved are: 1. "Was the mental suffering such a result as the parties to the contract contemplated or should have contemplated at the time of the making of the contract as a natural and probable result of the breach thereof?" and, 2. "Did the mental suffering result proximately from the breach?" If these questions are answered in the affirmative, there is no possible reason, on principle, for denying a recovery of compensatory damages for mental suffering.

RALPH STANLEY BAUER.

possession $51, and while in company with Bouldin at night the robbery occurred. A person not identified presented a pistol, and ordered Weldon and Bouldin to deposit in a hat, which the assailant produced, their money. Bouldin pretended to put in the hat money in his possession, and Weldon deposited $51 therein.

The theory of the state was that Bouldin and appellant were acting together, and the state depended upon circumstantial evidence to identify the appellant; one of the circumstances relied upon being the declaration of appellant made to the sheriff while under arrest. The declaration was not in writing, and was not brought within the requirements of article 810, C. C. P. There was a conflict between the testimony of the sheriff and the appellant touching the circumstances under which the statement was made, and with reference to the substance of the statement. It is the contention of the appellant that the declaration was rendered inadmissible because it was a verbal statement made to the sheriff without warning while under arrest, and was induced by promises and persuasion. This is met by the claim that the statement led to the recovery of the fruits of the crime.

Weldon, the injured party, had before the offense received from the sheriff $53, consisting, according to the sheriff's testimony, of two $20 bills, and 13 $1 bills. The sheriff said that appellant told him where he would find the money, and that he, in company with appellant, went to the home of appellant's father and found under the house $48, consisting of thirteen $1 bills, a $10 bill, a $5 bill, and a $20 bill. According to the state's testimony, there were no peculiarities about the money which served to identify it. Appellant claimed that before the money was obtained the sheriff described it as having certain peculiarities which were not observable in the money secured. Appellant in his testimony said that the sheriff represented to him that certain witnesses, whom he named, were going to swear to facts which would convict the appellant of the offense, but that, if he could get the money which Weldon had lost, the matter would be hushed up and the appellant released; that he then told the sheriff, in substance, that he had not committed the offense, but that he had some money which he had earned, and which he had hid on the sill of his father's house, and that he would go with him and get the money mentioned, as he was willing to surrender it to