Sullivan v. Old Colony Street Railway Co.

Rugg, J. The connection between the tortious act of a person sought to be charged for the consequences of an injury, as the cause, and the injury sustained, as the effect, must be established by a fair preponderance of the evidence before a plaintiff can be permitted to recover. Such causal connection cannot be left to conjecture, surmise or speculation, but must rest upon a firm foundation of proof. Williams v. Citizens Electric Street Railway, 184 Mass. 437. McGarrahan v. New York, New Haven, & Hartford Railroad, 171 Mass. 211, 219. The evidence tending to connect the premature birth of the child, on July 5, 1906, and its subsequent death within forty-eight hours, with the injury received by the plaintiff on April 7, 1905, is extremely slender. If there were nothing beyond the testimony of the plaintiff and her attending physician, it would be insufficient, for the latter plainly said that he could only “ surmise ” as to the cause of the condition of the child. There was, however, testimony showing an extreme nervous condition on the part of the plaintiff as the result of the injury, and a physician called by the defendant testified that premature birth might result from a nervous condition of the mother, if she were profoundly affected by it. Upon the authority of Sullivan v. Boston Elevated Railway, 185 Mass. 602, this was enough. It has been argued, nevertheless, that the case rests on the ground stated in Daniels v. New York, New Haven, & Harford Railroad, 183 Mass. 393, namely, that the wrongful act of the defendant was not “ the active efficient cause of the subsequent event,” but “ only the producer of the conditions which opened the door to another cause, which directly and actively produced the result,” and that the death of the after conceived child was a remote consequence of the injury to the mother, but not an effect actively produced by it, and that the plaintiff’s voluntary act intervened as the real cause. See Snow v. New York, New Haven, & Harford Railroad, 185 Mass. 321. This principle has no application to a case like the present. The perpetuation of the human race cannot be termed a voluntary act, but it rests upon instincts and desires, which are fundamentally imperative. Although careful instructions were given to exclude the death of the child as an element of damage, the jury were permitted to take into account the mental suffering of the mother on this — 516 — account. She was thus permitted to recover money compensation for the sorrow and anguish endured as a result of the contemplation of the death of her child conceived nearly seven months and born fourteen months after the injury. This is extending the rule of damages beyond any limits heretofore recognized. It is an expansion which finds no support in any principle of law. Mental suffering connected with and growing out of physical injury is a legitimate element to be considered in determining damages against a person wrongfully causing an injury. Such suffering is to a greater or less extent inseparably connected with physical harm, and flows from it as a natural result. Canning v. Williamstown, 1 Cush. 451. The rule of damages is a practical instrumentality for the administration of justice. The principle on which it is founded is compensation. Its object is to afford the equivalent in money for the actual loss caused by the wrong of another. Recurrence to this fundamental conception tests the soundness of claims for the inclusion of new elements of damage. The landowner, whose home, rendered dear by ties of ancestry and personal attachment, is seized under the power of eminent domain, has a right to receive no larger sum, on account of the mental distress he endures in leaving it, than a mere stranger, holding it purely for speculative purposes. The parent, who sues for the loss of services of his minor child, cannot recover for his own sympathetic sorrow in witnessing the sufferings, which cause his loss of service. In an action for deprivation of consortium, the anguish of mind of the husband, in observing the bodily pain of a sensitive wife, forms no element in the damages he may recover. These considerations apply .peculiarly to a case like the present. Wealth brings no consolation to those who mourn. The grief occasioned by the death of loved ones touches chords in the human soul which lie outside the compass of pecuniary relief. The solace, which stills the voice of lamentation, comes from sources which cannot be found through the medium of money. The mental suffering, for which damages can be recovered, therefore, is limited to that which results to the person injured as the necessary or natural consequence of the physical injury. But sentiments of grief, sorrow and mourning, which are aroused by extraneous causes, thoughts or reflections, are excluded. The — 517 — contemplation of the suffering and death of a child, begotten long after the event complained of, is too remote from the original physical injury to the parent and too intangible and ethereal to be connected with the original wrong of the defendant as a result to be reasonably apprehended from such a cause. The law cannot enter the realm of pure sentiment in this class of case, and award pecuniary compensation for those injured feelings which spring from sympathy and the severance of ties of love and affection. It follows that there can be no recovery for the mental suffering which ensues from the contemplation of the pain, deformity, imperfections or characteristics of any other person or thing. See McDermott v. Severe, 202 U. S. 600. The extent to which recovery may be had for mental suffering has been the subject of somewhat conflicting decisions in various jurisdictions. But so far as we have been able to discover, there is unanimity of decision that, for mental suffering of a class like that under discussion, (except by express provision of statute, see Kelley v. Ohio River Railroad, 58 W. Va. 216,) there can be no recovery. Maynard v. Oregon Railroad, 46 Ore. 15. Bovee v. Danville, 53 Vt. 183. Western Union Telegraph Co. v. Cooper, 71 Texas, 507. Texas Mexican Railway v. Douglass, 69 Texas, 694. Atchison, Topeka & Santa Fe Railroad v. Chance, 57 Kans. 40. Butler v. Manhattan Railway, 143 N. Y. 417. Lennox v. Interurban Street Railway, 104 App. Div. (N. Y.) 110. Exceptions sustained.