conduct. The principle, therefore, of holding the defendants responsible, is founded in sound reasons of public policy."* In case of the death of the injured person, and an action brought by his or her personal representatives to recover damages therefor, it is obvious that the elements entering into the question of the amount of damages will be different from those which may be considered by the jury in an action brought by the injured person himself. At common law the right of action for injuries resulting in death perished with the deceased, and the right given to the personal representatives of the deceased to sue is entirely the creation of statute; and the elements, therefore, which enter into the question of damages in such cases are controlled by the construction which is put upon the statute of the jurisdiction in which the suit is brought. For instance, under Lord Campbell's Act, which is the British statute giving a right of action for injuries resulting in death, the jury is limited to the actual pecuniary injury done to the family of the person killed, and can give nothing by way of solatium for their grief and injured feelings, or to compensate them for the loss of society or companionship which they have suffered, nor can anything be allowed in such action on account of the physical or mental suffering of the deceased; and the rule is substantially the same under the New York statute, so that where the injured person dies the office of expert testimony will be limited to the question of whether, in a case where there is any doubt, the death was the result of the injury. Where, however, the injuries do not result fatally, and the action was brought by the injured person himself, the elements which the jury may consider in determining the amount of damages are the impaired capacity of the plaintiff to earn money, the cost of his cure, and his physical and mental pain and suffering. In all these matters the testimony of physicians may be material. In estimating the loss of earning power, just as in determining how far the defendant's negligence is responsible for subsequently developed infirmity, the rules of common sense must be applied, and the decrease in earning power for which there may be a recovery must be such as is reasonably certain to result from the injury in ordinary course of nature, and not such as may be the possible consequence of the injury. In a leading case in New York, Dr. Spitzka, who had examined the plaintiff, who was a boy who had been injured in a railway accident, was asked as to the permanency of this condition of the plaintiff, and he answered that it was very likely to be permanent. He also stated that the plaintiff was liable to retain the greater part of the symptoms which he had, if he did not develop worse signs. He was then asked what he referred to by his statement that the boy's condition might develop into worse signs or conditions, and he answered, "A patient sustaining such injuries and presenting such premonitory signs may develop traumatic insanity or meningitis or progressive dementia or epilepsy, with its results." The question was objected to as speculative and hypothetical, but was allowed, and the Court of Appeals, in reversing the judgment and ordering a new trial, said: "The door was opened for the jury, in estimating the damages, to include compensation for the mere hazard to which the plaintiff was claimed to be exposed of being afflicted with the terrible disorders, or some of them, enumerated in the answer," and "to entitle a plaintiff to * Stover vs. Bluehill, 51 Me. 442. recover present damages for apprehended future consequences there must be such a degree of probability of their occurring as amounts to a reasonable certainty that they will result from the original injury."* He There is an English case, illustrating some of the rules of law by which the jury are to be guided in deciding upon the amount of damages for personal injuries, which may have a peculiar interest to members of the medical profession, owing to the fact that the plaintiff was himself an eminent London physician. To lawyers the case is of importance because it is a leading English case on the subject, and was twice tried before a jury and twice appealed, and the principles involved were very thoroughly discussed by the appellate courts. The plaintiff, Dr. Phillips, was an eminent London physician of middle age and robust health, earning an income from the practice of his profession of about £5000 a year. was injured in a railway accident and his health irreparably impaired to such a degree as to render life a burden and a source of the utmost misery. His condition, as Lord Chief-Justice Cockburn put it, was at once helpless and hopeless. The expenses incurred by reason of the accident had already, at the time of the first trial, amounted to £1000, and medical attendance to still more, and the latter was likely to be for a long time necessary. He had already lost his income for the period of sixteen months which had elapsed between the time of the accident and the trial. On the first trial the jury gave him £7000 damages. The Court of Queen's Bench reversed the judgment and ordered a new trial on the ground of the insufficiency of the verdict, and this reversal was affirmed by the Court of Appeal. Lord Cockburn said: "But we think that a jury cannot be said to take a reasonable view of the case unless they consider and take into account all the heads of damage in respect of which a plaintiff complaining of a personal injury is entitled to compensation. These are the bodily injury sustained; the pain undergone; the effect on the health of the sufferer, according to its degrees and its probable duration as likely to be temporary or permanent; the expenses incidental to attempts to effect a cure or to lessen the amount of injury; the pecuniary loss sustained through inability to attend to a profession or business, as to which, again, the injury may be of a temporary character or may be such as to incapacitate the party for the remainder of his life. If a jury have taken all these elements of damage into consideration, and have awarded what they deemed to be fair and reasonable compensation under all the circumstances of the case, a court ought not, unless under very exceptional circumstances, to disturb their verdict. But looking to the figure in the present case it seems to us that the jury must have omitted to take into account some of the heads of damage which were properly involved in the plaintiff's claim.”† On the second trial, before Lord Chief-Justice Coleridge, the jury found a verdict for £16,000. This time the defendant appealed and the case again went to the Court of Appeal, but the judgment was affirmed. On the second appeal, in discussing the evidence upon which to base compensation for the loss of a professional or trade income, Lord Justice Brett said: "It has been in effect suggested by the counsel for the defendants that *Strohm vs. N. Y., L. E. & W. R. R. Co., 96 N. Y. 305. † Phillips vs. Southwestern Ry. Co., 4 Q. B. D. 406. the amount of the income at the time of the accident ought not to be taken into account. This suggestion seems to me to be erroneous. If no accident had happened, nevertheless many circumstances might have happened to prevent the plaintiff from earning his professional income. He may be disabled by illness, he is subject to the ordinary accidents and vicissitudes of life, and if all those circumstances of which no evidence can be given are looked at it would be impossible to exactly estimate them. Yet if the jury wholly pass over them they will go wrong, because those accidents and vicissitudes ought to be taken into account. It is true that the chances of life cannot be accurately calculated, but the judge must tell the jury to consider them in order that they may give a fair and reasonable compensation." The plaintiff can always recover the cost of medical attention, nursing, and all ordinary and reasonable expenses which he has incurred by reason of his sickness, and it has been held to be no defense to a recovery for money paid to a nurse that the plaintiff had a family capable of taking care of him. This last defense in these days of trained nursing strikes one as being a little strained, and evidently struck the court so.* It has even been held that a plaintiff may recover the value of medical services gratuitously rendered, the reason being that these services were rendered for the benefit of the plaintiff and not for the benefit of the defendant, and the defendant should not, therefore, be allowed to profit by them. In one of the cases in which this rule was enunciated the plaintiff was a physician, and it was sought to prove that it was a universal custom among physicians and surgeons not to charge members of the profession for services rendered, but the evidence was held inadmissible as immaterial. The term "medical services and expenses" does not merely include doctors' bills, medicines, and nursing, but covers also reasonable, necessary, and judicious trips to health-resorts; as, for instance, where a person injured in a railway accident went to the Electric Wells in Georgia and the Glenn's Springs in South Carolina for treatment, he was allowed to prove the expense of these trips as part of his claim. But where a parent sues for the loss of services of a child as the result of an accident, he can recover as expenses for medical attendance only those actually incurred or immediately necessary; future and contingent expenses are recoverable only by the child and not by the parent.§ * Kendall vs. City of Albia, Iowa Supreme Court, October 27, 1887. t City of Indianapolis vs. Gaston, 58 Ind. 224. Hart vs. Charlotte R. Co., 32 S. C. 427. § Jones vs. Chamberlain, 109 N. Y. 100. MENTAL DISTRESS AS AN ELEMENT OF DAMAGE IN CASES TO RECOVER FOR PERSONAL INJURIES. BY JOHN E. PARSONS, Esq. It is common experience that anguish of mind, laceration of feeling, a sense of shame, of indignation, or of humiliation, anxiety, distress of a sentimental character, are often more difficult to bear than bodily hurt. Where such injury has been occasioned by the fault of another, the question arises whether in every case the law affords redress. The maxim of the law is that for every wrong there is a sufficient remedy. Does this maxim hold true in all cases of the character referred to? The general principle is well established that in actions of tort, where for the wrong there is a right to recover damages, mental distress may be taken into consideration in fixing the amount. But the weight of authority seems to establish that when the injury consists in distress of mind alone, or where the mental distress is separate from and independent of the wrong, it does not constitute an element of damage and may not be considered in determining the amount of a recovery. In support of the general proposition, McIntyre vs. Giblin, 131 U. S. 174, is a recent authority. This was a suit to recover damages for the careless shooting and wounding of Giblin by McIntyre. On the trial the court charged the jury that in computing the damages they might take into consideration "a fair compensation for the physical and mental suffering caused by the injury." The United States Supreme Court, ChiefJustice Waite delivering the opinion, held that there was no error in permitting a recovery for mental suffering. The court said that the effect of the instruction was no more than to allow the jury to give compensation for the personal suffering of the plaintiff caused by the injury. In Hamilton vs. Third Avenue R. R., 53 N. Y. 25 (1873), the Court of Appeals of the State of New York held, where the plaintiff was forcibly ejected from one of the defendant's cars because of his refusal to pay his fare a second time, that the injury to his feelings might be taken into consideration by the jury and a suitable recompense given therefor. In Hamilton vs. Eno, 81 N. Y. 116, the same court affirmed the decision of the General Term of the Supreme Court (Hamilton vs. Eno, 16 Hun, 599), holding in an action for libel that, in a case where damage had been shown, injury to feelings might be treated as a proper subject for consideration. Other illustrations of the general rule will be found in cases decided by the English courts and by the courts of many of the States. Thus in Blake vs. Midland Railway Co., 18 Q. B. 93, Coleridge, J., said: "When an action is brought by an individual for a personal wrong, the jury, in assessing the damages, can with little difficulty award him a solatium for his mental sufferings alone, with an indemnity for his pecuniary loss." Godeau vs. Blood, 52 Vt. 251, was a case where a child was bitten by a vicious dog. Redfield, J., said that the apprehension of poison from the bite of the dog, and the fear and solicitude as to evil results therefrom, were proper matters for consideration by the jury in estimating the damages. In Heddles vs. Railway Co., 77 Wis. 228, it appeared that one of the defendant's engines ran over a boy and crushed both his legs. It was held on appeal that damages might be awarded for the "mortification and anguish of mind which he has suffered and will suffer in the future by reason of the mutilation of his body and the fact that he may become an object of curiosity and ridicule among his fellows." Seger vs. Town of Barkhamstead, 22 Conn. 290; Sherwood vs. Railway Co., 88 Mich. 108; and Railroad Co. vs. Stables, 62 Ill. 313, are similar cases. Kennedy vs. Standard Sugar-refining Co., 125 Mass. 90, states the principle under novel circumstances. Kennedy, an employee of the defendant, fell several stories and was killed. The fall was due to a defective floor. When he struck the ground he became unconscious and remained so until death. This action was brought by his administratrix. At nisi prius the mental sufferings of the deceased during the fall were allowed as an element of damage. Morton, J., on appeal, said: "It may be true, as an abstract proposition of law, that if a man is precipitated from a height by the negligence of another, and is injured, he may recover, as one element of his damages, for any mental suffering he may prove he endured during his fall." Damages were refused simply because, Kennedy having remained unconscious till death, there was no way of proving mental suffering. The cases all proceed upon the principle that where personal injury has been inflicted, for which the wrong-doer can be made liable, mental distress may be taken into account as well as injury to person or character. Some go to an extreme length in permitting a recovery where it is wounded feeling, mortification, indignity, or a sense of humiliation in which consists substantially the entire injury. Thus in Craker vs. Railway Co., 36 Wis. 657, it was held that a female passenger on a railwaytrain could recover for the sense of shame and personal affront which accompanied the act of the conductor of the train in placing his arm around her against her protest, and kissing her. Obviously in this case the bodily injury was nominal. It was for the indignity that the plaintiff was permitted to hold the company liable. The extent to which courts have gone in grasping at the slightest proof of bodily harm to permit a recovery for distress of mind occasioned by the same occurrence is illustrated by many cases. Railroad Co. vs. Brown, 17 Wallace, 445, and Railway Co. vs. Williams, 55 Ill. 185, were suits brought by female colored passengers who were not permitted to sit in cars reserved for ladies. In the first case the Supreme Court of the United States refused to disturb a verdict of $1500, although the passenger aggrieved was carried safely to her destination; and in the second it was held upon appeal that a verdict of $200 was not excessive, Scott, J., saying: "We apprehend that if the act is wrongfully and wantonly committed the party |