nary care have foreseen that some injury might result from his negligence." 11

From what has been said it necessarily appears that neither time nor distance is essentially a controlling element in determining whether a certain cause is the proximate cause.12 Nor, as will be seen hereafter, is it required that the proximate cause be the sole cause.

INTERVENTION OF NATURAL FORCE

27. The sequence of events is not broken by the intervention of an act of nature occurring while the re

sulting operation of the wrongful act or neglect is effective.

In one of the earlier cases 18 the defendant's vessel struck upon a shoal through the negligence of the captain and crew. It was blowing hard, all control over the ship was lost, and through the action of the wind and tide it was carried against and injured plaintiff's sea wall. Manifestly the proximate cause of the injury was the negligent grounding. Neither wind nor tide could be considered to be intervening factors

11 Pullman Palace Car Co. v. Laack, 143 Ill. 242, 260, 32 N. E. 285, 18 L. R. A. 215; Louisville & J. Ferry Co. v. Nolan, 135 Ind. 60, 34 N. E. 710; Hill v. Winsor, 118 Mass. 251; Ehrgott v. Mayor, etc., of City of New York, 96 N. Y. 264, 48 Am. Rep. 622; Drum v. Miller, 135 N. C. 204, 47 S. E. 421, 65 L. R. A. 890, 102 Am. St. Rep. 528; Smith v. London, etc., R. Co., L. R. 6 C. P. 14, 40 L. J. C. P. 21, 23 L. T. Rep. N. S. 678, 19 Wkly. Rep. 230.

12 Wills v. Ashland Light, Power & St. Ry. Co., 108 Wis. 255, 84 N. W. 998. Where a rotten stump was set on fire by the negligence of the railroad company, it was held that "the fact that the fire smouldered awhile in the stump, and, after it was supposed to have been extinguished, broke out again the next day, while it makes the conclusion less obvious that the damage was done by the same fire, does not interpose any new cause or enable the court to say as matter of law that the causal connection was broken." Haverly v. State Line & S. R. Co., 135 Pa. 50, 58, 19 Atl. 1013, 20 Am. St. Rep. 848.

13 Romney Marsh v. Trinity House, L. R. 5 Exch. 204, 39 L. J. Exch. 163, 22 L. T. Rep. N. S. 446, 18 Wkly. Rep. 869, affirmed L. R. 7 Exch. 247, 41 L. J. Exch. 106, 20 Wkly. Rep. 952.

which would isolate the defendant's negligence. A similar result was reached where a ship captain negligently caused water to be pumped into a boiler in midwinter. The water froze, cracked a pipe, and escaped, damaging the cargo. It was not the frost which was the proximate cause of the loss, but the act of the captain. So, too, if I negligently start a fire and the wind carries the sparks, or burning oil floats down a stream to the point where damage occurs, it is evident that there has been no break in the chain of causation.15

Under this rule come cases where defendant has unlawfully caused a physical shock, resulting in functional disturbance, from which damage results. Thus, where a passenger on a railroad was thrown to the floor, cut and bruised, his mental functions subsequently becoming affected, and paralysis finally supervening, a verdict was upheld which constituted a finding that the paralysis was caused by the rupture of a blood vessel, the result of the shock and injury.10

It must be kept in mind, however, that, as already stated, the effect of the negligence or wrongful act must not have ceased to be operative when the natural cause intervened. If, therefore, a state of facts is produced which, although concededly due to the defendant's fault, did not do more than render possible the occurrence of the subsequent events, the original wrongdoing is here a condition and not a cause of the ultimate damage. To illustrate: Suppose a railroad negligently delays transportation of goods from town A. to town

14 Siordet v. Hall, 4 Bing. 607, 6 L. J. P. O. S. 137, 1 M. & P. 561, 29 Rev. Rep. 651, 13 E. C. L. 657.

15 Higgins v. Dewey, 107 Mass. 494, 9 Am. Rep. 63; Lillibridge v. McCann, 117 Mich. 84, 75 N. W. 288, 41 L. R. A. 381, 72 Am. St. Rep. 553; Poeppers v. Missouri, K. & T. Ry. Co., 67 Mo. 715, 29 Am. Rep. 518; Kuhn v. Jewett, 32 N. J. Eq. 647; Hoffman v. King, 160 N. Y. 618, 55 N. E. 401, 46 L. R. A. 672, 73 Am. St. Rep. 715. Decisions to the contrary, such as Hoag v. Lake Shore & M. S. R. Co., 85 Pa. 293, 27 Am. Rep. 653, and Marvin v. Chicago, M. & St. P. Ry. Co., 79 Wis. 140, 47 N. W. 1123, 11 L. R. A. 506, are not to be commended.

16 BISHOP v. ST. PAUL CITY RY. CO., 48 Minn. 26, 50 N. W. 927, Chapin Cas. Torts, 35. See, also, Ehrgott v. Mayor, etc., of City of New York, 96 N. Y. 264, 48 Am. Rep. 622; Davies v. McKnight, 146 Pa. 610, 23 Atl. 320.

C. so that they arrive at town B., an intermediate point, several days overdue, and upon arrival they are destroyed by a flood. Here the loss was not immediately due to the negligence of the railroad, for the immediate cause was the flood. Nevertheless, had proper diligence been displayed in transit, the loss would not have occurred, since the goods would not have been at B. when the flood came. But is the negligent delay the proximate cause of the loss? The better view is that it is not, as it ceased to be operative upon the arrival of the goods at B.17

FRIGHT AND MENTAL ANGUISH

28. Where the cause of action is perfect in itself, the party wronged may include in his recovery damages for mental anguish proximately resulting.

Whether mental anguish alone can be considered a proximate result, to supply the damage where damage must be proved, is in dispute.

From what has been said concerning the intervention of a natural cause, the conclusion might appear that, in all cases, mental suffering, where it exists, is to be regarded as a result of the wrongdoing. This may be true (a) in cases where a cause of action may be established without reference to the mental anguish; but (b) in other instances the courts are not in accord.

Under the first head would come a case where defendant had trespassed upon a cemetery lot owned by plaintiff and removed the body of the latter's child. Apart from the outrage to plaintiff's feelings, he would have a perfect right of

17 Hoadley v. Northern Transportation Co., 115 Mass. 304, 15 Am. Rep. 106; Denny v. New York Cent. R. Co., 13 Gray (Mass.) 481, 74 Am. Dec. 645; Daniels v. Ballantine, 23 Ohio St. 532, 13 Am. Rep. 264; Morrison v. Davis, 20 Pa. 171, 57 Am. Dec. 695; Memphis & C. R. Co. v. Reeves, 10 Wall. 176, 19 L. Ed. 909. But New York has adopted the opposite view. Read v. Spaulding, 30 N. Y. 630, 86 Am. Dec. 426, where it was held that the delay was equivalent to deviation and made the carrier an insurer.

CHAP.TORTS-6

action for the trespass, and having it he may recover in the same action for his mental pain.18 In such torts as assault and battery,19 false imprisonment,20 false arrest,21 malicious prosecution, 22 seduction, 23 and in defamation, where damage is presumed or proved,24 the principle has full play. This is likewise true of breach of promise to marry, which, although nominally an action on contract, is in many respects regarded as really in tort.25 1

Now, for the second class of cases, of which defamation and negligence probably furnish the best illustrations. If I publish a statement concerning A. of so grave a character that it will be said to be defamatory per se,26 and from which damage will be inferred, as if I call him a murderer, or if the charge is not of this type, yet special damage cognizable

18 Meagher v. Driscoll, 99 Mass. 281, 96 Am. Dec. 759. To the same effect, HICKEY v. WELCH, 91 Mo. App. 4, Chapin Cas. Torts, 39 (trespass). In Larson v. Chase, 47 Minn. 307, 50 N. W. 238, 14 L. R. A. 85, 28 Am. St. Rep. 370, a right of action for mental anguish caused by the dissection of the body of plaintiff's husband was recognized, though there was no trespass.

19 Kline v. Kline, 158 Ind. 602, 64 N. E. 9, 58 L. R. A. 397; Burns v. Jones, 211 Mass. 475, 98 N. E. 29; Morgan v. Curley, 142 Mass. 107, 7 N. E. 726; Wadsworth v. Treat, 43 Me. 163; Hamilton v. Third Ave. R. Co., 53 N. Y. 25; Williams v. Underhill, 63 App. Div. 223, 71 N. Y. Supp. 291; Craker v. Chicago & N. W. R. Co., 36 Wis. 657, 17 Am. Rep. 504.

20 Harness v. Steele, 159 Ind. 286, 64 N. E. 875.

21 Young v. Gormley, 120 Iowa, 372, 94 N. W. 922.

22 Hamilton v. Smith, 39 Mich. 222.

23 Phillips v. Hoyle, 4 Gray (Mass.) 568; Phelin v. Kenderdine, 20 Pa. 354.

24 See infra, pp. 304, 314; Finger v. Pollack, 188 Mass. 208, 74 N. E. 317; Cribbs v. Yore, 119 Mich. 237, 77 N. W. 927; Knowlden v. Guardian Printing & Publishing Co., 69 N. J. Law, 670, 55 Atl. 287; Van Ingen v. Star Co., 1 App. Div. 429, 37 N. Y. Supp. 114, affirmed 157 N. Y. 695, 51 N. E. 1094; Hacker v. Heiney, 111 Wis. 317, 87 N. W. 249. Recovery for physical sickness, the result of mental distress, allowed in Garrison v. Sun P. & P. Ass'n, 207 N. Y. 1, 100 N. E. 430, 45 L. R. A. (N. S.) 766, Ann. Cas. 1914C, 288; denied in Butler v. Hoboken P. & P. Co., 73 N. J. Law, 45, 62 Atl. 272.

25 Tobin v. Shaw, 45 Me. 331, 71 Am. Dec. 547; Grant v. Willey, 101 Mass. 356; Allen v. Baker, 86 N. C. 91, 41 Am. Rep. 444.

26 See infra, pp. 304, 314.

at law flows from it, then, as has been seen, the defamed party may recover for the humiliation he may have experienced. But if the words are not defamatory per se, and the only damage is the mental damage, there will be no cause of action.27 Plaintiff's mental anguish alone will not, for instance, sustain an action for a slander or libel upon a deceased relative.28

When we come to negligence, we find the leading case of Mitchell v. Rochester Ry. Co.29 Plaintiff, a pregnant woman, was standing on a crosswalk. Defendant's horses were negligently driven so close to her that she stood between their heads when they were stopped. From fright, she became unconscious, and the result was a miscarriage. Now, if there had been any impact, any immediate physical injury, however slight, another question would have been presented. There having been none, it was held that there could be no recovery,30

Courts which have adopted this view base their conclusion on one or both of the following grounds: First, that defendant cannot be said to have anticipated the injury, which was therefore not proximate; second, that to permit recovery would be to admit a flood of litigation of such a character that injuries might be feigned without possibility of detection, the

27 So held of a charge of unchastity in Terwilliger v. Wands, 17 N. Y. 54, 72 Am. Dec. 420; Allsop v. Allsop, 5 H. & N. 534, 6 Jur. N. S. 433, 29 L. J. Exch. 315, 2 L. T. Rep. N. S. 290, 8 Wkly. Rep. 449. But see infra, pp. 313, 316.

28 Bradt v. New Nonpariel Co., 108 Iowa, 449, 79 N. W. 122, 45 L. R. A. 681; Sorenson v. Balaban, 11 App. Div. 164, 42 N. Y. Supp. 654.

29 MITCHELL v. ROCHESTER RY. CO., 151 N. Y. 107, 45 N. E. 354, 34 L. R. A. 781, 56 Am. St. Rep. 604, Chapin Cas. Torts, 37.

30 To the same effect, see Braun v. Craven, 175 Ill. 401, 51 N. E. 657, 42 L. R. A. 199; Atchison, T. & S. F. R. Co. v. McGinnis, 46 Kan. 109, 26 Pac. 453; Smith v. Postal Tel. Cable Co., 174 Mass. 576, 55 N. E. 380, 47 L. R. A. 323, 75 Am. St. Rep. 374; Huston V. Freemansburg Borough, 212 Pa. 548, 61 Atl. 1022, 3 L. R. A. (N. S.) 49; Victorian Ry. Com'rs v. Coultas, 13 App. Cas. 222, 52 J. P. 500, 57 L. J. P. C. 69, 58 L. T. Rep. N. S. 390, 57 Wkly. Rep. 129. See Homans v. Boston El. Ry. Co., 180 Mass. 456, 62 N. E. 737, 57 L. R. A. 291, 91 Am. St. Rep. 324, where there was physical impact.