tions brought to recover unliquidated damages; that for a breach of contract there should be a remedy; and that, unless the carrier is held responsible for the act of the conductor in using opprobrious and insulting language to a passenger conducting himself properly, the latter is practically without a remedy.

the most intense, humiliating, and crushing character. I will not indulge a figment of the imagination or fiction of the law that will enable common carriers of passengers to violate the plain terms of their contract, and yet leave their passengers remediless." One of the early cases on the subject of damages for mental suffering caused by offensive conduct, but not involving physical injury, is Chamberlain v. Chandler, 3 Mason, 242, Fed. Cas. No. 2,575, decided by Mr. Justice Story, in 1823, then an Associate Justice of the Supreme Court of the United States. The action was by passengers against the master of a ship for what appears to have been extremely unseemly conduct on the part of the master, in the way of obscenity, harsh threats, and immodest demeanor towards the passengers, although no physical violence was committed. In speaking of the duties of the master, the learned judge said: "In respect to passengers, the case of the master is one of peculiar responsibility and delicacy. Their contract with him is not for mere shiproom and personal existence on board, but for reasonable food, comforts, necessaries, and kindness. It is a stipulation, not for toleration merely, but for respectful treatment." Then, after reciting the facts upon which the cause of action was based, being, as we have said, unseemly conduct only, he proceeded to consider the proposition as to whether an action would lie in the absence of physical violence, regarding which he said: "It is intimated that all these acts, though wrong in morals, are yet acts which the law does not punish; that if the person is untouched, if the acts do not amount to an assault and battery, they are not to be redressed. The law looks on them as unworthy of its cognizance. The master is at liberty to inflict the most severe mental sufferings in the most tyrannical manner, and yet, if he withholds a blow, the victim may be crushed by his unkindness. He commits nothing within the reach of civil jurisprudence. My opinion is that the law involves no such absurdity. It is rational and just. It gives compensation for mental sufferings accompanied by acts of wanton injustice, equally, whether they operate by way of direct or of consequential injuries. In each case the contract of the passengers for the voyage is, in substance, violated, and the wrong is to be redressed as a cause of damage."

For a breach of the contract of carriage as the result of a conductor assaulting a passenger without provocation, the authorities are practically unanimous in holding that for insulting language, used in connection with the assault, damages for mental suffering caused thereby may be recovered. If damages are recoverable for a breach of the contract in one instance, there is no good reason why a breach of such contract as the result of using insulting language should not give a right of action, independent of other acts, which may constitute a breach. Wounding a man's feelings by the use of opprobrious language in circumstances constituting a breach of the contract of carriage is as much actual damages as assaulting him. The difference is that by the breach in one instance mental suffering only is caused, while in the other it is physical; but this is the result of the difference in the means employed in committing an injury, which constitutes a breach of the contract between the carrier and the passenger. To deny the passenger a remedy where, without justification, the conductor assails him with abusive and insulting language, would, in effect, abrogate an important element of the contract of carriage, render it a nullity, and permit the carrier to violate it with impunity. That a new field of litigation may be opened, where the damages claimed will be difficult of ascertainment, is not a reason why the carrier should be relieved from fulfilling its contract for decorous and respectful treatment of its passengers. In the case of St. L., I. M. & So. R. Co. v. Taylor, 84 Ark. 42, 104 S. W. 551, in which the majority of the court held that mental suffering alone, unaccompanied by physical injury or other element of recoverable damages, cannot be made the subject of independent action against a carrier for damages, Mr. Justice Wood, in dissenting from this conclusion, aptly remarked: "We are utterly unable to appreciate the fine distinction necessary to be made in order to allow damages for mental anguish in cases of breach of contract, where there has been a physical in- It is also suggested by counsel for defendjury, however slight, produced by the will- ant that the complaint is insufficient, for the ful and malicious act of the employé or car- reason that it is not alleged the defendant rier, and yet to deny the: where there has instructed its conductor in advance to act been no physical injury, but where the only towards plaintiff in the manner asserted, nor injury is mental suffering. According to the that the defendant afterwards ratified these rule announced, the weight of the finger acts. The position is not tenable. It is well laid on in anger, or any other frivolous as- settled that, in all cases where the master sault, will let in all the damages for mental owes a contractual duty to third persons, he anguish, while if there is no such trivial | cannot shirk or evade it by committing its physical injury there can be no recovery for the mental agony, although that may be of

performance to another, but is bound to perform the duty, and is liable for a failure

to do it in any respect whereby injury results to another, whether such failure results from negligence or from the improper conduct of the agent to whom the duty is committed. Being bound to do the act or perform the duty, if he does it by another, the master is treated as having done it himself, and the fact that his agent acted contrary to his instructions, without his consent, or that he did not subsequently ratify the wrongful act, does not excuse him. Diamond Rubber Co. v. Harryman, 41 Colo. 415, 92 Pac. 922, is cited by counsel for defendant in support of their contention that a cause of action is not stated in the complaint. That case is entirely different from the one at bar. The relation between the parties is not the same, and the mental suffering, for which it was said damages were not recoverable, relates to circumstances in nowise similar to the case under consideration.

We conclude that the use by a conductor to a passenger lawfully upon a train, and conducting himself with propriety, of language calculated to humiliate, mortify, or disgrace the passenger, gives the passenger a right of action against the railroad company for compensatory damages for the mental pain thus occasioned. The judgment of the district court is reversed, and the cause remanded, with directions to overrule the demurrer to the complaint.

Such a

by some other element of damage. conclusion would permit railroad companies to violate one of the most important elements of such contract, render it a nullity, and leave the passenger without remedy. Many cases are cited by counsel in the brief in support of the petition for rehearing; but, outside of those directly in point, they are, in the main, distinguishable from the case at bar. Take, for instance, our own decisions on the measure of damages in an action under section 1509, Mills' Statutes. Damages for mental suffering caused by grief are not recoverable; but this conclusion is based upon the ground that damages recoverable by the statute are limited to the net pecuniary benefit which the plaintiff might reasonably have expected to receive from the deceased. The remaining cases cited, which hold that damages are not recoverable for mental suffering alone, are distinguishable from the one at bar in that they relate to cases brought under a statute similar to our own, or where contractual relations did not exist between the parties, or where there was a mere passive breach of a contract-that is to say, if there had been a violation of the contract, it was not occasioned by willful, tortious conduct-or were for simple negligence, or where the mental suffering was not the direct result of a tort, but remote, or the defendant was not engaged in a business quasi public. It may be true that cases like the one

Reversed and remanded, with directions. at bar should be reached by some statutory

CAMPBELL, C. J., and HILL, J., concur.

On Petition for Rehearing.

action on the part of the Legislature; but, until such a remedy is supplied, we have no right to withhold the remedy which the law now affords. Should excessive damages be awarded by a jury in a given case, the trial court, or this court on review, can and should set aside such a verdict.

GABBERT, J. The petition for rehearing is based upon the ground that damages for mental suffering, unaccompanied by physical injury, or any other element of recoverable damages, cannot be made the subject of an independent action for damages. This question is the vital one in the case, and we held that the complaint stated a cause of action upon the ground that for a willful breach of the contract of carriage, as alleged in the complaint, damages were recoverable for the mental suffering thus occasioned. No reason is now advanced in support of the petition 1. for rehearing that was not urged upon our attention in the briefs and on oral argument at the original hearing.

We must concede, of course, that there are authorities sustaining the contention of counsel for the railroad company; but there are also cases sustaining our conclusion. We think the latter are the more logical. When there is a willful, tortious breach of the contract of carriage by those engaged in serving the public, it is certainly illogical to say that the person whose rights are thus infringed is without remedy for mental suffering thus caused, unless such breach is accompanied

A notice of injury to a traveler sufficiently designated the place in the street where she was injured as being on a named street, between two other streets, "where the sidewalk being put in," and was not insufficient for not intersects the alley and where a curbing was stating the particular side of the street.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1696-1707; Dec. Dig. § 812.*]

2. MUNICIPAL CORPORATIONS (§ 812*)-STREETS -INJURY TO TRAVELER-NOTICE-PURpose. Notice to a city of injury to a traveler on street is required to properly advise the city where the injury occurred, so as to enable it

a

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 1696-1707; Dec. Dig. § 812.*]

to investigate the nature and cause of the in- if brought. Stoors v. City of Denver, 19.. jury and prepare a defense. Colo. App. 159, 73 Pac. 1094; Miller v. Camp Bird, Limited, 46 Colo. 569, 105 Pac. 1105; City of Pueblo v. Babbitt, 47 Colo. 596, 108 Pac. 175. While it is true the statutes of Colorado are more liberal on the question than the charter provisions of the city of Denver, yet the reasons for the notice are substantially the same.

3. EVIDENCE (§ 318*)-HEARSAY.

In a personal injury suit against a city, part of plaintiff's notice to the city of the injury, stating that she had been told by credible witnesses that other persons were injured at the same place a night or two before her injury, and that the same was reported to the city before her accident, was purely hearsay

and not admissible.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1193-1200; Dec. Dig. § 318.*1 4. Trial (§ 84*)—OBJECTIONS TO EVIDENCE

INSUFFICIENCY.

Objection to admission in evidence of a paragraph of a notice, on the ground that it was immaterial, irrelevant, and incompetent, was sufficient as an objection on account of the hearsay character of the evidence.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 211-222; Dec. Dig. § 84.*]

Appeal from District Court, City and County of Denver; Samuel L. Carpenter, Judge. Action by Mary S. Perkins against the City and County of Denver. Judgment for plaintiff, and defendant appeals. Reversed,

and remanded for new trial.

Henry A. Lindsley, F. W. Sanborn, and G. Q. Richmond, for appellant. Thomas B. Stuart, Charles A. Murray, and Robert M. Work, for appellee.

HILL, J. Appellee, as plaintiff, brought this action to recover damages for personal injuries sustained through the alleged negligence of the appellant. It is claimed this negligence consisted in permitting an excavation to be and remain in one of the streets of the city for the purpose of laying curbing, etc. A trial resulted in a verdict and judgment for plaintiff, from which defendant appeals.

Counsel for the city contend the true rule to be that the representatives of the city. must be able, from the description of the place in the notice itself, together with the character of the defect causing the injury, to locate the place of the accident by exercising reasonable diligence and judgment. Accepting this rule as the test for the purposes of this case, we think the notice sufficient. The very fact that it does not state upon which side of the street the injury occurred would, of itself, in the exercise of reasonable diligence, require that the party investigating make an examination upon each side of the street at that point, and thereby ascertain the exact location. The evidence discloses that the excavation for the curbing at and around in the alley was then being made upon the north side of the one where the accident occurred. This conclusion makes unnecessary any ruling as to whether the city did or can waive its right to a sufficient notice, or whether it can be shown by other evidence that it did, by investigation upon the ground, ascertain the exact location, or whether it is competent to show that it was fully advised by the plaintiff, soon after the accident, of the exact point where it occurred.

The second error urged pertains to the admission in evidence of the last paragraph of the notice. The portion complained of followed the statements of the time, place, kind, and extent of the injuries received, and read: "She further states that she had been told by credible witnesses that other persons The sufficiency of the notice required by were injured at the same place in the same the charter of the city is the first question excavation, a night or two previous to her presented. The contention is that it did not injury, and that the same was reported to correctly state the place where the injury oc- the city authorities before she received the curred, and for this reason should not have injuries complained of." This last parabeen received in evidence. We cannot agree graph was specially objected to by the city. with this contention. The notice, considered The objection was overruled, and the entire in connection with the character of the de- instrument admitted. In this we think the fect causing the injury, in substance, fixed trial court erred. This purported evidence, the place at the city and county of Denver, purely hearsay, was given to the jury, and on Twentieth avenue, between Ogden and we cannot say was not considered by them Downing avenues, where the sidewalk in- in reaching their verdict; and, if considertersects the alley and where a curbing waзed, the case of the defendant may have been then being put in. The only thing left in definite is upon which side of the street the accident occurred. One of the substantial reasons for requiring the notice is that the city may be properly advised as to where the injury occurred, in order to make a proper investigation of the nature and cause of the injury and to prepare to defend an action, *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

substantially prejudiced thereby, for the reason that the plaintiff was permitted to place before the jury as evidence the purported unsworn statements of others, who did not testify at the trial. The effect of such testimony was to establish the fact that other persons had been injured at the same place, and that as a necessary result the place

that none of the grounds now urged upon our attention as above quoted or elsewhere in the brief of counsel for defendant, except that the report and judgment are not sup

ror, as plaintiff, on February 2, 1901, brought | waiving this, it appears from the motion an action in the county court against his copartner, as defendant, for an accounting, alleging that their partnership had been dissolved by mutual consent, and that upon a just and true settlement of their copartner-ported by the evidence, were called to the atship business it would appear there was a large balance due him, not exceeding, however, the sum of $2,000. From the judgment rendered in the county court, the defeated party appealed to the district court, where a referee was appointed to hear and determine the issues, and report findings of fact and conclusions of law. Pursuant to this order, the cause was heard before the referee, who found and reported that plaintiff was entitled to recover from defendant the principal | sum of $1,577.22, with interest from November 15, 1900, amounting to $883.26, a total of $2,460.48. Tais report was approved, and judgment rendered accordingly. The defendant has brought the case here for review on

error.

Three days after the final judgment was rendered, the court adjourned for the term. The next day defendant filed a written prayer for an appeal, which was subsequently refused. This is assigned as error. Whether the court was right or wrong in denying an appeal is not material. Its ruling did not affect the rights of the parties one way or the other on any question going to the merits, which are here for determination. These are the only ones proper to consider in reviewing the judgment. A party cannot complain of an order which did not injure him. The remaining points urged in the brief of counsel for the defendant in support of the contention that the judgment is erroneous and should be reversed are stated as follows: "(2) Because judgment was rendered against defendant for one-half of the assets before they were reduced to cash, and before they were collected, and without first paying partnership debts out of the same. (3) Because defendant was charged with interest on one half the profits and interest in the business from the time of the dissolution of the copartnership. (4) Because the report of the referee and the judgment of the court thereon was based, in part at least, upon certain exhibits on file that were not introduced in evidence, and confessedly did not contain but a portion of the accounts of the business transactions of the copartnership."

The defendant, though duly notified, did not appear at the hearing before the referee. He was also duly notified of the filing of the referee's report, but failed to file any exceptions thereto. He did not take any exceptions to the judgment confirming the report. He filed a motion for a new trial, but not until after the court had adjourned for the term, and it is therefore doubtful if his motion was filed in time to be entitled to consideration. Section 218, Civil Code. But,

tention of the trial court by the motion for a new trial. This motion was overruled, but no exception to such ruling was taken, so. that the general rule, to the effect that before a question can be considered or reviewed by an appellate court it must have been brought to the attention of the trial court in some appropriate way, and its rulings thereon excepted to, and the record must show such ruling and exception (Corbin v. Phillips, 26 Colo. 461, 58 Pac. 590; Cone v. Montgomery, 25 Colo. 277, 53 Pac. 1052), precludes the defendant from having any of the questions argued in the brief of his counsel considered here, except the one that the judgment was not supported by the evidence.

But that question is not before us for review, for two reasons: (1) There is no bill of exceptions; consequently we are unable to determine whether or not the report of the referee and the judgment of the court confirming it were supported by the testimony; (2) even if the testimony had been preserved by bill of exceptions, it appears that no exception to the judgment was taken. It is the rule in this jurisdiction, as has frequently been decided by this court and the Court of Appeals, that the sufficiency of the evidence to support the judgment of the lower court will not be considered upon review, unless an exception was taken and saved to such judgment. Possibly, if an exception had been saved to the order overruling the motion for a new trial, this rule might not apply, but as no exception was taken to such order, it is unnecessary to express any opinion thereon.

In the oral argument it was urged that as the action was originally commenced in the county court, the district court was without jurisdiction to render a judgment in excess of $2,000. The complaint filed in the county court alleged that on settlement of the partnership affairs the sum due the plaintiff would not exceed $2,000. The finding of the district court is that the principal sum due plaintiff was $1,577.22, as of date November 15, 1900. Interest on this sum down to the date when the action was originally commenced, added to the principal as ascertained by the district court, would aggregate less than $2,000. The amount fixed as the limitation of the jurisdiction of the county court means the amount due the plaintiff at the time of bringing his action. The accumulation of interest pendente lite will not oust such jurisdiction. Denver Brick Mfg. Co. v. McAllister, 6 Colo. 326. On appeal to the district court the latter tribunal has the same jurisdiction that the county court had; that is to say, it had jurisdiction to pro