to the case at bar. The most of the powers, van,62 Minn. 283. A general law is also conprovided for by said chapter 228, Laws 1895, stitutional which does not, by implication or are distinctively charter powers; that is, they otherwise, repeal the special laws in conflict pertain to matters which are almost invariably with it. Re Opening Linwood Place (Minn.) regulated by city charters, and not by the by- 67 N. W. 77. The reason of this is that, allaws passed under such charters. Then, the though the constitutional amendment requires legislature cannot do indirectly what they can the general law to be uniform in its operation, not do directly; and this act is not constitu- the amendment does not, as this court contional unless the diverse results which may be strues it, require this uniformity to be brought brought about by the adoption of the act by one about immediately. Every step taken must city, and the rejection of it by another, can be be in the direction of a general law of uniform brought about by direct, unconditional legisla- operation, but the legislature need not at once, tion. There are two cities in the state having or at any one time, take all the steps necessary more than 100,000 inhabitants. Can the legis- to bring about this result. Again, the amendlature, by a direct act, provide that said chap- ment provides that "the legislature may repeal ter 228 shall apply to the one city, but not to an existing special law, but shall not amend, the other? The part of § 146 above quoted extend, or modify the same.' This allows a provides that, when the act is adopted by any special law to be totally repealed by a special city, "all acts and parts of acts in any charter law, and, as held in the Sullivan Case, it alor special law relating to said city shall be lows the partial repeal or modification by a thereby repealed as to said city, so far as the general law of all special laws so far as inconsame relate to the subject-matter of this act." sistent with it. Such a general law is not speWill not the adoption of this act by one city, cial legislation at all. But, as before stated, and not by the other, have the effect of a par- this constitutional provision does not permit a tial repeal of a special law by a special law? special law to be partly repealed or modified Clearly, such a special law, partially repealing by a special law. Then, the legislature cansuch a special law, is unconstitutional. It will not, by a direct, unconditional special law be readily seen by anyone familiar with the (either included in a general law or enacted charter law of the two cities in question that alone) repeal the parts of the special laws perthe adoption of chapter 228 by either city will, taining to St. Paul, attempted to be repealed if the law is valid, repeal a part of each of by the enactment of chapter 228 and the adopseveral of the special acts which make up the tion of the same by the council of that city. charter of that city, leaving the other part of As before stated, if the legislature cannot do each special law to stand, and leaving all of the this directly, by unconditional legislation, they special laws of the other city on the same sub- cannot do it indirectly, by legislation containject wholly unaffected. The legislature may, ing such a local option provision. Then is our by a general, unconditional law, expressly re- conclusion that chapter 228, aforesaid, is unpeal all special laws so far as inconsistent with constitutional and void; and therefore the it, though this may have the effect of leaving claim of respondent, that he holds an official the other part of one or more special laws in position under it, cannot be sustained. force and unrepealed. State, Baker, v. Sulli- Let a writ of ouster issue.

NEW YORK COURT OF APPEALS.

Annie MITCHELL, Respt.,

v.

ROCHESTER RAILWAY COMPANY,

Appt.

(151 N. Y. 107.)

1. No recovery can be had for a miscarriage resulting from fright caused by

the negligence of another.

2. Miscarriage resulting from fright caused by the negligence of another is not the proximate result of the negligence.

(December 1, 1896.)

and granting a new trial in an action brought to recover damages for injuries alleged to have been caused by defendant's negligence. Reversed.

The facts are stated in the opinion.

Messrs. Bacon, Briggs, Beckley, & Bissell, for appellant:

To make out a cause of action it must be es

tablished, not only that a defendant was guilty of a negligent act, but that the injury was produced by a cause which might naturally and reasonably be expected to follow from the negligent act. Negligence is the proximate cause of an injury, within the legal meaning of that term, when the injury is one which is the natural and probable result of the negligence, and

APPEAL by defendant from an order of the one that ought, naturally, to have been fore

General Term of the Supreme Court, Fifth Department, affirming an order of the Monroe County Circuit setting aside a nonsuit

seen.

Boswell, Civil Liability, 134, 135; Whart. Neg. Causal Connection, SS 73-155; Tutein v.

NOTE. For fright as a basis of a cause of action,! As to damages for miscarriage, see Tunnicliffe v. see note to Ewing v. Pittsburgh, C. C. & St. L. R. Bay Cities Consol. R. Co. (Mich.) 32 L. R. A. 142, and Co. (Pa.) 14 L. R. A. 666.

note.

Hurley, 98 Mass. 211, 93 Am. Dec. 154; Low- | sence of distinct intention to produce the preery v. Manhattan R. Co. 99 N. Y. 158, 52 Am. Rep. 12.

v. Latimer, 128 Ill. 163; Oliver v. La Valle, 36 | as there was no immediate personal injury. Wis. 592; Fitzpatrick v. Great Western R. Co. 12 U. C. Q. B. 645; Purcell v. St. Paul City R. Co. 48 Minn. 134, 16 L. R. A. 203.

The fact that damages may be awarded for physical injury, although caused through the agency of mental disturbance set in operation by defendant's negligence, is analogous to the rule in the law of divorce, to the effect that even where cruelty" as defined by statute is held necessarily to imply physical injury, impaired health being a physical injury is sufficient, though caused solely through the agency of mental suffering set in operation by the misconduct of the defendant.

Powelson v. Powelson, 22 Cal. 358; Kelly v. Kelly, 1 West. Coast Rep. 143; Bethune v. Bethune [1891] P. 205.

It is argued by the appellant that it should not be held responsible for an act which would not bring injurious results upon a woman in an ordinary condition. The fallacy of this rea soning is apparent. To a woman in an ordinary condition it would be damnum absque in juria. But the negligence of the defendant would exist just as much. It would simply be its good fortune to have occasioned no damage thereby.

Pollock v. Brooklyn & C. T. R. Co. 39 N. Y. S. R. 568, Aflirmed 133 N. Y. 624, and 60 Hun, 584.

The law may award damages for physical injury to the person, although it was caused through the agency of mental disturbance set in operation by defendant's negligence.

Report of this case in 30 Abb. N. C. 362, 371, note.

Lehman v. Brooklyn City R. Co. 47 Hun, 355; Victorian Railway Comrs. v. Coultas, L. R. 13 App. Cas. 222; Ewing v. Pittsburgh, C. C. & St. L. R. Co. 147 Pa. 40, 14 L. R. A. 666. The learned counsel for the respondent in his brief very properly stated that "the consensus of opinion would seem to be that no recovery can be bad for mere fright," as will be readily seen by an examination of the following additional authorities. Haile v. Texas & P. R. Co. 60 Fed. Rep. 557, 23 L. R. A. 774; Joch v. Dankwardt, 85 Ill. 331; Canning v. Williamstown, 1 Cush. 451; Western U. Teleg. Co. v. Wood, 6 C. C. A. 432, 57 Fed. Rep. 471, 21 L. R. A. 706; Renner v. Canfield, 36 Minn. 90; Allsop v. Allsop, 5 Hurlst. & N. 534; Johnson v. Wells, F. & Co. 6 Nev. 224, 3 Am. Rep. 245; Wyman v. Leavitt, 71 Me. 227, 36 Am. Rep. 303. If it be admitted that no recovery can be had for fright occasioned by the negligence of another, it is somewhat difficult to understand how a defendant would be liable for its consequences. Assuming that fright cannot form the basis of an action, it is obvious that no recovery can be had for injuries resulting therefrom. That the result may be nervous discase, blindness, insanity, or even a miscarriage, in no way changes the principle. These results merely show the degree of fright, or the extent of the damages. The right of action must still depend upon the question whether a recovery may be had for fright. If it can, then an action may be maintained, however slight the injury. If not, then there can be no recovery, no matter how grave or serious the consequences. Therefore the logical result of the respondent's concession would seem to be, not only that no recovery can be had for mere fright, but also that none can be had for The facts in this case are few, and may be injuries which are the direct consequences of briefly stated. On the 1st day of April, 1891, it. If the right of recovery in this class of the plaintiff was standing upon a crosswalk on cases should be once established, it would natMain street in the city of Rochester, awaiting urally result in a flood of litigation in cases an opportunity to board one of the defendant's where the injury complained of may be easily cars which had stopped upon the street at that feigned without detection, and where the damplace. While standing there, and just as she ages must rest upon mere conjecture or specuwas about to step upon the car, a horse car of lation. The difficulty which often exists in the defendant came down the street. As the cases of alleged physical injury, in determinteam attached to the car drew near. it turned ing whether they exist, and, if so, whether to the right and came so close to the plaintiff they were caused by the negligent act of the that she stood between the horses' heads when defendant, would not only be greatly increased, they were stopped. She testified that from but a wide field would be opened for fictitious fright and excitement caused by the approach or speculative claims. To establish such a and proximity of the team she became uncon- doctrine would be contrary to principles of scious, and also that the result was a miscar- public policy. Moreover, it cannot be propriage, and consequent illness. Medical testi-erly said that the plaintiff's miscarriage was mony was given to the effect that the mental the proximate result of the defendant's negli shock which she then received was sufficient to gence. Proximate damages are such as are produce that result. Assuming that the evi- the ordinary and natural results of the negli dence tended to show that the defendant's gence charged, and those that are usual, and servant was negligent in the management of may, therefore, be expected. It is quite obvithe car and horses, and that the plaintiff was ous that the plaintiff's injuries do not fall free from contributory negligence, the single within the rule as to proximate damages. The question presented is whether the plaintiff is injuries to the plaintiff were plainly the result entitled to recover for the defendant's negli of an accidental or unusual combination of gence which occasioned her fright and alarm, circumstances, which could not have been reaand resulted in the injuries already mentioned. sonably anticipated, and over which the deWhile the authorities are not harmonious upon fendant had no control, and hence her damages this question, we think the most reliable and were too remote to justify a recovery in this better considered cases, as well as public policy, action. These considerations lead to the confully justify us in holding that the plaintiff clusion that no recovery can be had for incannot recover for injuries occasioned by fright, juries sustained by fright occasioned by the

Martin, J., delivered the opinion of the

court:

negligence of another, where there is no immediate personal injury.

The orders of the General and Special Terms should be reversed, and the order of the Trial Term granting a nonsuit, affirmed, with costs.

All concur except Haight, J., not sitting, and Vann, J., not voting. Ordered accordingly.

NEVADA SUPREME COURT.

STATE of Nevada

v.

C. H. ZICHFELD, Appt.

[(Nev.........)

1. A marriage by contract between parties competent to enter into that relation with each other is valid, under the act of November 28, 1861, making provisions as to licenses and the persons

vided for by the statute, and not within the exception, as void.

Becerlin v. Beverlin, 29 W. Va. 732; Com. V. Munson, 127 Mass. 466, 34 Am. Rep. 411; Norcross v. Norcross, 155 Mass. 425; Dunbarton v. Franklin, 19 N. H. 257; Re McLaughlin's Estate, 4 Wash. 570, 16 L. R. A. 699; Follansbee v. Wilbur, 14 Wash. 242; Stans v. Baitey, 9 Wash. 115.

The contract of separation was admissible by whom marrages may be celebrated, but con- for the purpose of showing that there was no taining no express clause of nullity as to mar-intent on the part of the defendant to commit riages otherwise contracted.

2. An invalid contract to dissolve a marriage between husband and wife is not admissible in his favor to show his good faith in contracting a later marriage, when charged with bigamy, under a statute which does not require any other criminal intent than is involved in entering into the prohibited marriage.

3. A man may be guilty of bigamy al

though he believes his former marriage is annulled, where a statute describes the offense as marrying again while a former husband or wife is living, without any specific provision as to

criminal intent.

(November 19, 1896.)

PPEAL by defendant from a judgment Aof the District Court of Washoe County

convicting him of bigamy. Affirmed.

The facts are stated in the opinion. Messrs. Curler & Curler, for appellant: Under our law no person other than a minister of any religious society or congregation, within this state, who has obtained a license for that purpose, or any judge of the district court in his district, or justice of the peace in his county, is authorized to join persons together as husband and wife.

Nev. Gen. Stat. §§ 473, 481, 486. The legislature of the state of Nevada did not intend to recognize what is known as common-law marriages.

Nev. Gen. Stat. 474, § 5.

The provision of the statute making the exception that all marriages shall be deemed to be valid although the ceremony is performed by a person not authorized to perform it, and prescribing how marriages shall be solemnized, precludes the contracting of the relationship in any other manner than as provided. The legislature, having made a provision specially legalizing marriages in certain excepted cases, must be held to have contemplated all others not entered into according to the manner proNOTE.-For intent as 'an element of crime, see note to People v. Flack (N. Y.) 11 L. R. A. 807. See also Fanning v. Chace (R. I.) 13 L. R. A. 134.

a crime.

State v. Gardner, 5 Nev. 377, and authorities therein cited.

Messrs. F. H. Norcross, District Attorney. and Robert M. Beatty, Attorney General, for the State.

Bonnifield, J., delivered the opinion of the court:

The appellant was convicted in the district court of the second judicial district in and for Washoe county of the crime of bigamy, and appeals from the judgment of the court and an order denying his motion for new trial. The following facts are not disputed: In the year 1893, in said county, the appellant was married to Sophia Koser, by written contract, without the services of any of the persons auwhorized by the statute to join persons in mar

riage, or to solemnize marriages. Subsemutual consent, and the appellant, while he quently, and in 1895, the parties separated by was so married to Sophia Koser, and knowing that said Sophia was still alive, was formally married to Lauretta Bosford, by J. J. Linn, a justice of the peace of Washoe county.

There is no contention as to the sufficiency of said first marriage to constitute a valid marriage at the common law; but counsel for appellant contend that our statute concerning marriages has superseded the common law, and that all marriages not entered into in conformity to the provisions of the statute are null and void. It is well settled that under

the common law the marriage relation may be formed by words of present assent (per verba de præsenti), and without the interposition of any person lawfully authorized to solemnize marriages, or to join persons in marriage. The first act passed by our territorial legisla ture was an act entitled "An Act Adopting the Common Law." At the same session of the legislature, it passed the act relating to marriages, of which the following is 1: That marriage, so far as its validity in law is concerned, is a civil contract to which the consent of the parties capable in law of contracting is essential." (November 28, 1861.) Although

this act contains provisions requiring a license, | the state to encourage it, and because, as has directing how and by whom marriages may be sometimes been said, any other construction celebrated, or by whom persons may be joined in marriage, and prescribing other regulations in reference thereto, the statute contains no express clause of nullity, making void mar riages contracted by mutual consent per verba de præsenti, except a prior license is obtained, or solemnization had, in accordance with its provisions.

would compel holding illegitimate the offspring of many parents conscious of no violation of law. The Michigan statute differs in no essential particular from those of other states which have generally been so construed. It does not declare marriages void which have not been entered into in the presence of a minister or magistrate. It does not deny validity to marriages which are good at common law. The most that can be said of it is that it contains implications of an intention that all marriages, except some particularly mentioned, should be celebrated in the manner prescribed. The 6th section declares how they may be solemnized. The 7th describes what shall be required of justices of the peace and ministers of the gospel before they shall solemnize any marriage. The 8th section declares that in every case, that is, whenever any marriage shall be solemnized in the manner described in the act, there shall be at least two witnesses present beside the minister or magistrate. The 9th, 10th, 11th, 16th, and 17th sections provide for certificates, registers, and exemplications of records of marriages solemnized by magistrates and ministers. The 12th and 13th impose penalties upon justices and ministers joining persons in marriage contrary to the provisions of the act, and upon persons joining others in marriage, knowing that they are not lawfully authorized so to do. The 14th and 15th sections are those upon which most relicircuit court. The former declares that no marriage solemnized before any person professing to be a justice of the peace or minister of the gospel shall be deemed or adjudged to be void on account of any want of jurisdiction or authority in such supposed minister or justice, provided the marriage be consummated with a full belief on the part of the persons so married, or either of them, that they have been lawfully joined in marriage. This, it is argued, raises an implication that marriages not in the presence of a minister or justice, or one professing to be such, were intended to be declared void. But the implication is not necessarily so broad. It is satisfied if it reach not beyond marriages in the mode allowed by the act of the legislature. The 15th section exempts people called Quakers or Friends from the operation of the act. As to them the act gives no directions. From this, also, an inference is attempted to be drawn that lawful marriages of all other persons must be in the mode directed or allowed [by the statute]. We think the inference is not a necessary one. Both these sections (the 14th and the 15th), are to be found in the acts of other states, in which it has been decided that the statutes do not make invalid common-law marriages." We think that in the above opinion by Justice Strong a clear and proper construction of the statute is given.

Authorities: The Supreme Court of the United States in Meister v. Moore, 96 U. S. 76, 24 L. ed. 826 (opinion by Justice Strong), in construing the Michigan statute, which is substantially the same as ours, said: "It [the instruction] certainly withdrew from the consideration of the jury all evidence, if any there was, of informal marriage by contract per verba de præsenti. That such a contract constitutes a marriage at common law there can be no doubt, in view of the adjudications made in this country from its earliest settlement to the present day. Marriage is every where regarded as a civil contract. Statutes in many of the states, it is true, regulate the mode of entering into the contract, but they do not confer the right. Hence they are not within the principle that where a statute creates a right, and provides a remedy for its enforcement, the remedy is exclusive. No doubt a statute may take away a common-law right; but there is always a presumption that the legislature has no such intention, unless it be plainly expressed. A statute may declare that no marriages shall be valid unless they are sol-ance is placed in support of the charge of the emnized in a prescribed manner; but such an enactment is a very different thing from a law requiring all marriages to be entered into in the presence of a magistrate or a clergyman, or that it be preceded by license, or publication of bans, or be attested by witnesses. Such formal provisions may be construed as merely directory, instead of being treated as destructive of a common-law right to form the marriage relation by words of present assent. And such, we think, has been the rule generally adopted in construing statutes regulating marriage. Whatever directions they may give respecting its formation or solemnization, courts have usually held a marriage good at common law to be good notwithstanding the statutes, unless they contain express words of nullity. In many of the states, enactments exist very similar to the Michigan statute; but their object has manifestly been, not to declare what shall be requisite to the validity of a marriage, but to provide a legitimate mode of solemnizing it. They speak of the celebration of its rite, rather than of its validity, and they address themselves principally to the functionaries they authorize to perform the ceremony. In most cases the leading purpose is to secure a registration of marriages, and evidence by which marriages may be proved; for example, by certificate of a clergyman or magistrate, or by exemplification of the registry. In a small number of the states, it must be admitted, such statutes have been construed as denying validity to marriages not formed according to the statutory directions.

Bishop says: "It was well observed by Lord Stowell that in a state of nature no forms need be added to an agreement of present marriage to render it complete. In the opinion of the Scotch people, and of the people of a part of our states, marriage, emphatically a thing of nature, is properly regulated by the law of na