
    Richmond.
    Connelly v. Western Union Telegraph Company.
    January 23, 1902.
    1. Damages&emdash;Mental Anguish&emdash;Telegraph Companies.&emdash;Damages for men-tal suffering, independent of any injury to person or estate cannot be recovered against a telegraph company for negligent failure to deliver a message as promptly as possible, although the company is advised of the character of the message. The injuries in such cases are too hard to determine with any reasonable certainty, are more often assumed than real, and the suit is too liable to be wholly speculative. Damages such as are recoverable at common law must not only be the proximate result of the act complained of, but they must be certain and definite, and not speculative in their character.
    2. Damages&emdash;Code, See. 2900&emdash;Violation of Statute&emdash;Code, See. 1292.&emdash;The purpose of Sec. 2900 of the Code in allowing damages to any person injured by the violation of any statute was merely to preserve to the person injured the right to maintain his action for the injury he may have sustained by reason of the wrong-doing of another, and to prevent the wrong-doer from setting up the defence that he had paid the penalty of his wrong-doing under a penal statute. It was not intended to .create a new ground for bringing an action for damages, and will not support an action for mental anguish only, although the defendant may have violated the provisions of Sec. 1292 by failing to deliver promptly a telegram.
    3. Telegraph Companies&emdash;Special Damages Under Act March 2, 1900&emdash;. Mental Anguish.&emdash;The Act of March 2, 1900 (Acts 1899-1900, p. 724), subjecting telegraph companies to special damages occasioned by the negligent failure of their agents to deliver dispatches, and aD lowing the jury, in the determination of the quantum of damages to consider the grief and mental anguish occasioned to the plain-tiff by such negligent failure, does not give any new .cause of action for damages. To justify a recovery under this statute, the plaintiff must show (1) the negligent failure of defendant’s agent in delivering the message, and (2) special damages resulting to the plaintiff therefrom. Special damages must be alleged and proved, and then only can the jury add the additional sum for the grief and mental anguish occasioned the plaintiff by the negligent failure of defendant’s agent. The act, taken as a whole, is substantially declaratory of the pre-existing law, and does not give a cause of action for mere mental anguish suffered from a failure to deliver a social telegram.
    Error to a judgment of the Corporation Court of Buena Vista, rendered August 23, 1900, in an action of trespass on the case, wherein the plaintiff in error was the plaintiff, and the defendant in error was the defendant.
    Affirmed.
    The opinion states the case.
    
      Hugh A. White and H. 8. Bucher, for the. plaintiff in error.
    
      George A. Fearons, Stiles & Holla-day and Scott <& Staples, for the defendant in error.
   Cardwell, J.,

delivered the opinion of the court.

The plaintiff in error brought this action of trespass on the case against the defendant in error, in the Corporation Court for the city of Buena Vista, claiming damages to the amount of $1,800 for mental suffering occasioned him by the non-delivery of a telegraphic message announcing the death of his father. The declaration contains two counts. The first alleges a statutory cause of action, and the second alleges solely the violation of a common law duty, and a common law remedy. There was a demurrer to the declaration, which was sustained, and the action dismissed. To this judgment a writ of error was awarded by one of the judges of this court.

The material facts alleged in the declaration are that on June 11, 1900, at Richmond, Virginia, a message was delivered to the defendant in error, a telegraph company, engaged in the business of sending and delivering telegraphic messages for hire, directed to the plaintiff in error, at Buena Yista, signed “Little Sisters,” announcing the death of the father of plaintiff in error. This message was to be transmitted to Buena Yista, Ya., to be delivered to plaintiff in error, a resident of that place. It was received by the telegraph company at Richmond, transmitted to Buena Yista, and there received by the agent of the company at 9:03 A. M. of that day. The message was not delivered as promptly as practicable to the sendee; it is alleged, and not delivered at all until some days thereafter, when he, hearing that a message for him had been received, called at the office of the company and got it. It is further alleged that by reason of the failure on the part of the telegraph company to deliver promptly the message, plaintiff in error was greatly troubled and damaged, in that he was deprived of being present at his father’s funeral, and thereby suffered great grief and mental anguish.

It will be observed that while defendant in error is engaged in the business of sending messages “for hire,” it does not appear that any tolls were paid or tendered to the company for receiving, transmitting, or delivering the message. It is set out in full in the declaration, and is marked “D. II. Charity,” and was presumably a charity message. In the view, however, that we take of the case, this is immaterial. The question to be determined, for the first time by this court, is, whether or not damages for mental suffering can be recovered in actions of this kind, independent of any injury to person or estate, where the telegraph company is advised of the character of the message, and fails .to deliver it as soon as practicable.

Damages such as are recoverable at law must not only be the proximate result of the act complained of, but must also be capable of definite ascertainment, or, to use the language of law writers and the decided cases, must be certain, definite, and not speculative in their character. Under this rule, damages for mental suffering alone, as an independent cause of action, were never allowed at common law. An illustration is in the case of an action of a father for the seduction of his daughter. There no action would lie against the seducer, no matter how aggravated, nor how great the mental anguish, unlqss it was alleged and could be proven that the father, by reason of the wrongful act of the defendant, had sustained the loss of the services of his child, and thus some special damage shown. When this was shown, in aggravation of the damages, as a punishment for the wrong doing, damages for mental suffering were allowed. Lee v. Hodges, 13 Gratt. 726.

This is also true of an action for slander and libel. jtSTo matter how great the mental suffering, from an insult or a charge of being guilty of degrading acts not- amounting to a crime, such as being a black-leg, cheat, etc., no action would lie, unless special damage, apart from the mental suffering, was shown.

In actions for assault and battery, false imprisonment, and kindred wrongs, damages for mental suffering are allowed as a punishment, and then only because some actual damage, apart from the mental suffering, must necessarily be inferred from the act itself.

In the case of a physical injury, damages for pain suffered, bodily and mentally, are allowed, for the reason that such mental suffering is necessarily a part of the physical injury, and inseparable therefrom. Kennon v. Gilmer, 131 U. S. 22; N. & W. Ry. Co. v. Marpole, 97 Va. 600, and authorities cited.

The rule of the common law, that damages for mental suffering are not allowable, save as incidental to a physical injury, and except in that class known as vindictive actions, came under review in the case of Allsop v. Allsop, 5 H. & N. Reps. 534. That was an action arising from an illness caused by slanderous words, and t'he court was unanimously of the opinion that the demurrer to the declaration should be sustained. Bramwell, B., in his opinion, said: “The question seems to me one of some difficulty, because a wrong to tbe female plaintiff who becomes ill, and therefore there is damage alleged to be flowing from the wrong; and I think it did in fact so flow. But I am struck by what 'has been said as to the novelty of this declaration—that no suoh special damage eAur was heard of as a ground of action. If it were so, I am at a loss to see why mental suffering should not be likewise. It is often adverted to in aggravation of damages as well as pain of body. But if so, all slanderous words would be actionable. Therefore, unless there is distinction between the suffering of mind and the suffering of body, this special damage does not afford any ground of action.”

The question came up again in Lynch v. Knight, decided by the House of Lords in 1861, 9 H. of L. Cas. 592, where the same view of the law was taken. Lord Brougham said: “I think that Allsop v. Allsop was well decided, and that mere mental suffering or sickness, supposed to be caused by the speaking of words not actionable in themselves, would not be special damage to support an action.”

In a concurring opinion by Lord Yrensleydale this language is used: “Mental pain or anxiety the law cannot value, and does not pretend to redress, when the unlawful act complained of causes that alone; though where a material damage occurs, and is connected with it, it is impossible a jury, in estimating it, should altogether overlook the feelings of the party interested.”

It is conceded in nearly all of the decided cases in this country, and by the text-writers, that the general rule which has come down to us from England is that mental anguish and suffering resulting from mere negligence, unaccompanied with injuries to the person, cannot be made the basis of an action for damages.

To examine all of the American authorities dealing with this question would protract this opinion to too great a length, and we shall not attempt to do more than to review a few of the leading eases which are departures from the common-law rule, as well as some adhering to it.

In 1861, the Shpreme Court of Texas, in So Relle v. W. U. Tel. Co., 55 Tex. 308, made the first departure from the common-law rule, and held that the addressee of a telegraph message might recover from the company, as compensatory damages, for mental suffering caused 'by its failure to deliver promptly a message which announced the death of his mother, by reason of which default he failed to attend her funeral. The eases cited by the court in support of its ruling were Hays v. Railroad Co., 46 Tex. 279; Railroad Co. v. Randall, 50 Tex. 261; and Phillips v. Hoyle, 4 Cray, 568. The first of these cases was an action for assault and battery. The second was a case in which a serious and permanent personal injury had been sustained, and the third was a case where the wrongful act charged was the seduction of the plaintiff’s daughter. In all of them, as a matter of course, and in accordance with generally admitted rules, damages for mental suffering were allowed. The main reliance, however, of the Texas court was placed on the following passage from the text of Shear. & Bed. Beg. (4th ed.), sec. 756: “In case of delay or total failure of delivery of messages relating to matters not connected with business, such as personal or domestic matters, we do not think that the company in fault ought to escape with mere nominal damages on account of the want of strict commercial value in such message. Delay in the announcement of a death, an arrival, the straying and recovery of a child, and the like, may often be productive of an injury to the feelings which cannot be estimated in money, but for which a jury should be at liberty to award fair damages.”

In Railroad Co. v. Levy, 59 Tex. 563, the court went counter to the view taken in the So Relie case, and held that if the plaintiff is not entitled to recover even nominal damages, as for breach of contract, and has sustained no injury to his person, • reputation or property, he can have no recovery for mental distress alone. And another case, Railroad Co. v. Levy, same Vol. 542, appears to hold that if nominal damages are proved, then a recovery may be had for mental suffering, but only in cases where there was such gross negligence or willfulness as to justify exemplary damages. But both of these cases have been overruled in later decisions of the same court, particularly in the case of Stuart v. Telegraph Co., 66 Tex. 580; so that the' So Relie case has been reinstated as the law of Texas, and has been followed in a number of decisions of the same court, and by the courts of a few of the other States, notably Chapman v. Telegraph Co., 90 Ky. 263; Telegraph Co. v. Adair, 89 Ala. 510; Reese v. Telegraph Co., 123 Ind. 294; Young v. Telegraph Co., 107 N. C. 370 (11 S. E. 1044); Thompson v. Telegraph Co., 107 N. C. 449 (12 E. 427); Wadsworth v. Telegraph Co., 86 Tenn. 695.

The decisions of the Texas Supreme Court have not been themselves harmonious and have been criticised, in some instances, severely by law writers and in the decided cases. In fact, the earlier decisions have not escaped the criticism of the same court in later decisions.

In Rowell v. Telegraph Co., 75 Tex. 26, the plaintiff and his wife had received information of the dangerous illness of her mother. Subsequently, a dispatch was sent containing the information of the mother’s improved condition. This dispatch the company failed to deliver. Suit was brought, but recovery denied, the court saying: “The demurrer was properly sustained. The damage here complained of was the mere continued anxiety caused by the failure to promptly deliver the message. Some kind of unpleasant emotion in the mind of the injured party is probably the result of a breach of contract in most cases. But the eases are rare in which such emotion can be held an element of the damages resulting for the breach. Eor injury to feelings in such cases, the courts cannot give redress. Any other rule ,would result in intolerable litigation.”

"We fail to appreciate the distinction the court seeks to draw in that case, and it has been suggested in later decisions of the courts of other States, that it was evidently resorted to for the purpose of staying the tide of “intolerable litigation” flowing from the decisions following the So Relle case.

The case of Wadsworth v. Telegraph Co. (Tenn.), supra, was well considered, and argued to a conclusion upon general principles of law, but the plaintiff’s right of action was upheld, as a statutory, and not a common law, right.

Chapman v. Telegraph Co., supra, cites only a Texas case, and Wadsworth v. Telegraph Co., supra, as authority for the conclusion reached. The case of W. U. Telegraph Co. v. Adair (Ala.), supra, only to a limited degree sustains the doctrine contended for by plaintiff in error. There were other features in the case than mere mental suffering as a basis of the action, and it may be said that the observations of the court as to the right of recovery of damages for mental suffering alone was dictum only, and for its conclusion the court relied mainly on its own decisions and a Texas case.

In Young v. Telegraph Co. (H. C.), supra,,, the message was: “Come in haste; your wife is at the point of death,” and the company failed to deliver the same for eight days. The court conceded that the great weight of authority was aaminst a recovery in that case, but, relying mainly upon the Texas cases and those following them, took the broad ground that the action was in reality in the nature of tort for the negligence, and that, as is usually the case in such actions, the plaintiff was entitled to recover, in addition to nominal damages, compensation for the actual damages done him, and that mental anguish is actual damage. The case of Reese v. Telegraph Co., 123 Ind. 294, is greatly relied on by plaintiff in error here, and in the cases we have just reviewed, and it is in accord with the view they contend for, but Beese v. Telegraph Co. has, by a decision of the same court rendered May 28, 1901—W. U. Telegraph Co. v. Ferguson, 60 N. W. 674—been, in express terms, overruled. In the last case the message was: “Grandma is dead. Will be buried Thursday two o’ck, come.” Says the opinion by Baker, .T.: “By the failure to deliver, appellee received neither pecuniary nor bodily injury, but suffered mental anguish consequent upon his being deprived of the opportunity of attending his grandmother’s funeral. . . . Though courts should and do extend the application of the rules of the common law to- the new conditions of advancing civilization, they may not rightly create a new principle unknown to the common law, nor abrogate a known one. If new conditions cannot be properly met by the application of existing laws, the supplying of the needful law is the province of the Legislature, not the judicial department.”

ITearly all of the authorities holding a contrary view are reviewed by the learned judge, and a great number are cited in support of the conclusion that the demurrer to the declaration was properly sustained. An examination of the citations discloses that a very great majority of the decisions of the coui’ts of the different States of the Union are in accord with the. ruling in the case. ' .

Every Federal court before which the question has arisen has taken the view that damages for mental suffering alone cannot be recovered. Chase v. Telegraph Co., 44 Fed. Rep. 554 (Ark.); Crawson v. Telegraph Co., 47 Fed. Rep. 544 (Ga.); Tyler v. Telegraph Co., 54 Fed. Rep. 634 (Va.); Kester v. Telegraph Co., 55 Fed. Rep. 603 (Ohio); Gahan v. Telegraph Co., 59 Fed. Rep. 433 (Minn.); Telegraph Co. v. Wood, 57 Fed. Rep. 471, U. S. Cir. Ct. App. term, 1893; Chicago &c. R. R. Co. v. Caulfield, 11 C. C. A. (U. S.), 552—though it is conceded in one case that if there had been such gross negligence on the part of the agents of the company as to indicate a wanton or malicious puipose in failing to transmit or deliver the message, the plaintiff’s mental suffering might have been considered. Crawson v. Telegraph Co., supra.

As was said by Canty, J., in a concurring opinion in Francis v. Telegraph Co. (Minn.), 25 L. R. A. 414: “The difficulty in such oases is the character of the damages claimed. The injuries in such cases are too hard to determine with any reasonable certainty—are more often assumed than real; and the suit too liable to be wholly speculative. If everyone was allowed damages for injuries to his feelings caused by some one else, the chief business of mankind might be fighting each other in the courts. Damages for mental suffering open into a field without boundaries, and there is no principle by which the court can limit the amount of damages. Mere logic will not dispose of a question of this character. The court must keep one eye on the theoretical, and the other on the practical. At the same time I am strongly of the opinion that there should be some practical remedy in this class of cases, and, if the Legislature would provide for the recovery to, say two or three hundred dollars, there would not be the same incentive to bring speculative suits, or to employ experts to draw on their own imagination for the purpose of. proving the condition of plaintiff’s imagination; there wTould not be so much elaborate preparation to impose on the jury. But, if the court should allow such damages at all, on no principle could it thus arbitrarily limit the amount of recovery and escape the evils mentioned.”

In the recent ease of Davis v. W. U. Telegraph Co., 46 W. Va. 48, the rule of law as stated in 1 Amer. & Eng. Ency. L. 862, is cited with approval, viz: “A rule that is more consistent with recognized legal principles, and that is supported by better authority, is that mental suffering alone, and unaccompanied by other injury, cannot sustain an action for damages, or be considered as an element of damages. Anxiety of mind and mental torture are too refined and too vague in their nature to be the subject of pecuniary compensation in damages, except where, as in case of personal injury, they are so inseparably connected with the physical pain that they cannot be distinguished from it, and are, therefore, considered part of it.”

We come now to the consideration of the legislation in this State npon this subject, and upon which plaintiff in error relies as a 'basis for the first count in his declaration, in which the damages claimed are the same as in the second count, i. e., damages for mental anguish or suffering, standing alone.

Section 1291 of the Code relates to “the receipt and transmission of dispatches,” and section 1292 to “their delivery.” That first declares 'that it shall be the duty of the telegraph company to receive dispatches “and upon the payment of the 'usual charges therefor, to transmit the same,” under a penalty of $100 to the sender; and the second provides that upon the arrival of the dispatch at the point of its destination it shall be delivered as promptly as practicable, under a penalty of $100 to the addressee. These statutes are similar to those of Indiana regulating the business of telegraph companies, considered by the Supreme Court of that State in Telegraph Co. v. Ferguson, supra.

Section 2900 of the Code, under the title: “Damages from violation of a statute,” provides: “Any person injured by the violation of any statute may recover from the offender such damages as he may sustain by reason of the violation, although a penalty or forfeiture for such violation be therelbv imposed; unless the same be expressly mentioned to- be in lieu .of such damages.” And the Act of March 2, 1900, Acts 1899-1900, p. 124, provides: “That all telegraph companies shall be.liable for special damages occasioned in receiving, copying, transmitting, or delivering dispatches, or for the disclosure of the contents of any private dispatch to any person other than to him to whom it was addressed, or his agent, the amount of these damages to be determined by the jury upon the facts in each case. Grief and mental anguish occasioned to the plaintiff by the •aforesaid negligent failures may be considered by the jury in the determination of the quantum, of damages.

“Special damages recoverable under tbis act shall not be barred by regulations of tbe company concerning tbe repeating of messages, or by any special understanding to relieve the company from the consequences of its own negligence.”'

Section 2900 of tbe Code takes tbe place of sections 2 and 3, chapter 65, of tbe Code of 1873, and it is claimed bv plaintiff in^ error that under tbe construction of that statute by tbis court in W. U. Telegraph Co. v. Reynolds, 77 Va. 173, be may recover in tbis action any damages a jury may assess, where a violation of a statute has been shown. Tbe “violation of tbe statute” in Reynolds’ case, was a patent and admitted feature. 'Damages were sustained by tbe plaintiff—legal damages, and to a definite and admitted extent-. Lacy, J\, in tbe opinion says: “And it is admitted, and is equally clear from tbe evidence in tbis case, that tbe actual loss to Reynolds Brothers wras tbe amount found by tbe jury of $1,347.10, nothing being added by tbe jury as punitive or vindictive damages.”

Tbe only point decided in that case wras that a telegraph company is liable for tbe actual, ascertained money loss on a. business transaction, resulting directly from its negligence in failing to transmit a dispatch upon which tbe usual charges of tbe company had been paid, whether the dispatch was understood by tbe company or not. There is nothing whatever in tbe opinion to sustain tbe view that under the statute damages may be recovered for mental suffering as an independent cause of action. That question was not involved in tbe case, and was not adverted to.

Section 2900 came under review in Tyler v. W. U. Telegraph Co., supra, where it is well said by Paul, J.: “Tt is very evident that tbe prnpose of section 2900 was merely to preserve to any injured person the right to maintain bis action for tbe injury be may have sustained by reason of tbe wrong-doing of another, and to prevent tbe wrong-doer from setting up the defence that be bad paid tbe penalty of bis wrong-doing under a penal st'atute. It cannot be supposed that, in enacting section 2900, the Legislature had the remotest idea of -creating any ne-w ground for bringing -an action for damages. It was only intended to keep the su/bject just where it was under the common law before the enactment of section 1292, prescribing the duties of telegraph and telephone companies, and fixing a penalty for their failure to perform said duties.”

Hor is there anything in the Act of March 2, 1900, that can be construed as creating any new ground for bringing an action for damages. That statute -provides, first, that telegraph companies shall be liable for special damages occasioned by the negligent failure of their operators in delivering dispatches. It then provides that, in the determination of the quantum of damages, the jury may consider “grief and mental anguish” occasioned to the plaintiff by the negligent failure.

It is special damages occasioned 'by the negligent failure of the defendant in delivering -a dispatch that the statute confers the right upon the plaintiff to recover, and when he has alleged and proven that he is entitled to recover such damages, the jury may then, in fixing the quantum of damages, consider his mental anguish occasioned by the defendant’s negligent failure to deliver the dispatch. “Quantum” according to Webster, means “quantity,” “amount;” and “amount,” “the sum total of two or more particular sums or quantities;” “the aggregate; the whole quantity; a totality.”

To recover under the act in question, two things are necessary to be shown: (1) negligent failure on the part of the operator of the defendant company in delivering the message; and (2) special damages resulting to the plaintiff therefrom, neither of these grounds of action are alleged in this case. The first sentence of the act is plainly declaratory of the common law, and the whole act taken together is substantially declaratory of the pre-existing law. The rule governing in the construction of such statutes laid down in Arthur v. Bokenham, 11 Mod. 150, seems to have been universally followed, viz: “The general rule in the exposition of’ all acts of Parliament is this, that in all doubtful matters, and where the expression is in general terms, they are to receive such construction as may be agreeable to the rales of the common law in cases of that nature; for statutes are not presumed to make any alteration in the common law further or otherwise than the act does expressly declare; therefore, in general matters, the law presumes the act did not intend to make any alterations, for if ■the Parliament had that design, they would have expressed it in the act.”

If the purpose and intention of the Legislature had been by the statute of March 2, 1900, to make a new muse or ground of action, viz: for the recovery of damages for mental anguish alone, it is inconceivable that other and more apt phraseology should not 'have been employed.

In a proper case, under the statute, the plaintiff may recover any “special damages” alleged and proven to have been occasioned ‘by the negligent failure of the operators or servants of a telegraph company in receiving, copying, transmitting, or delivering a dispatch, whether such negligent failure occasioned Him grief 'and mental anguish or not, but the converse of the proposition cannot be true, because the jury are not authorized to consider the grief and mental anguish of the plaintiff except in determining the quantum of damages—i. e., the amount of special damages alleged and proved, together with such additional sum as may be added thereto for the grief and mental anguish occasioned the plaintiff by the negligent failure of the defendant’s operators or servants.

Any other construction of the statute would result, as did the departure from the common la,w in like cases, in a fruitful source of litigation, and open into a field without boundaries, for the recovery of speculative, sentimental and other like damages.

We quote with our unqualified approval the following from the opinion in W. U. Telegraph Co. v. Ferguson, supra: “There is no open or practicable means by which the damages occasioned by a negligent act that causes only mental anguish can be assessed. On account of mere difficulties, courts do not and should not falter at finding remedies; but it is not a question of difficulties purely when it is proposed to violate the natural principles of justice and fair play. The parties to a law suit should have an even chance. The damage for which plaintiff seeks' compensation should be shown by evidence that the defendant may test, impeach, refute. When the plaintiff asks to recover damages for physical injuries, open or hidden, the court may require him, as a condition of prosecuting his case, to submit his person to examination ■ by medical experts, who may be called as witnesses by the defendant. . . . The determination of the nature and extent of the physical hurt is not dependent upon the eloquence of the plaintiff as a witness, but upon the eloquence of the facts, established by the evidence on both sides, which may not have included the verbal testimony of the plaintiff at all. Yow, the mental anguish for which damages are allowable is incident to‘and dependent upon the nature and extent of the physical injury. And although there can be no absolute standard for measuring mental anguish in terms of money, nor for measuring physical injuries, yet it is apparent that the differences between the physical injuries in two cases, established by evidence open to both sides, furnish a means of testing in some degree the existence and extent of the mental anguish of the respective plaintiffs outside of their mere assertions. The difference between the mental anguish caused by the presence of a scar on a man’s body, and that produced by the same kind of a scar upon a woman’s face, would hardly be decided in favor of the man, although he alone of the two possessed the vocabulary necessary for a vivid description of the alleged tortures of mind. Even in the case of libel, malicious prosecution, and the like, in which punitive damages may be added to compensatory, t-lie mental anguish of which cognizance is taken is measurable by the enormity of the willful offence, the nature and extent of which are established by the evidence open to both sides. But the mental anguish doctrine awards damages for a state of mind that is not at all dependent upon or measurable by a cause of action existing outside the mental contemplation of the plaintiff, and provable by evidence open to both parties. If psychometry could determine the difference in the plaintiff’s consciousness before and after the defendant’s negligent act, it would take something still more occult to measure how much of the total disturbance was attributable to the death of the relative, and how much to being prevented from attending the funeral. Manifestly the defendant is not to pay for the mental anguish caused by the •death of the relative. The alleged actionable wrong is in depriving the plaintiff of the opportunity of attending the funeral. But would the plaintiff have accepted the opportunity if seasonably offered? If the defendant is to be mulcted for mere delay, even though the plaintiff would not have gone to the funeral in any event, the damages would be wholly punitive. There would be no loss to compensate. And so in this case (and probably the same thing has been true in all), the plaintiff was asked the following questions:

“ ‘Q. 'Suppose the telegram had been delivered to you on the evening of July 13, 1898, could you have reached her funeral by 2 o’clock on the 14th? A. I could. Q. I will ask you whether or not you would have done so? A. I would, sir; I would.’ The plaintiff says he would have gone. But would he? The jury found so, as a fact, wholly from the plaintiff’s present opinion on a past condition of things that never existed, but is now summoned before the mind by conjecture. Thus the mental anguish doctrine not only departs from principle in regard to measuring compensatory damages, but also warps the rules of evidence, which forbid a witness to testify what he would or would not have done in a stated contingency.”

A striking illustration of the extent to which the doctrine condemned in the opinion iust quoted from would lead is afforded by the ease at bar. Here the plaintiff in error seeks to recover damages for alleged mental anguish occasioned him by the failure on the part of the defendant company’s operator to deliver promptly a dispatch sent him by the company from Richmond, as a charity message, announcing the death of his father, and without alleging that the failure to deliver the message was a “negligent failure,” and without alleging that he was able and would have attended t'he funeral of his father had the message been promptly delivered to him.

“It is contrary to public policy (corruptive of public morals) for the courts to tie the hands of a defendant, and give the freest hand in collecting compensatory damages to the plaintiff, who is most moving in depicting an alleged physical condition, and readiest to declare what he would have done under circumstances that never occurred.

“Denial of equal justice, wrongful discrimination between persons in similar circumstances, is at least as vicious in judge-made as in statutory law. Yick Wo v. Hopkins, 118 U. S. 356. . . . To be a law of equal justice and no discrimination, the mental anguish doctrine should assert, as a broad general principle, that damages are recoverable, for mental distress alone, from every person whose negligent act causes that condition.” W. U. Telegraph Co. v. Ferguson, supra.

Hpon reason and a great weight of authority, such damages are not recoverable at common law, as an independent cause of action, and until our Legislature deems it wise to authorize such a recovery, the courts cannot sustain it. Our statutes thus far impose a penalty for the dereliction on the part of a telegraph company in the transmission and delivery of dispatches entrusted to it, and authorize the recovery of special damages occasioned the injured party thereby, to which may be added such damages as the jury may assess for his grief and mental suffering, but they go no further.

It is claimed, however, for plaintiff hi error, that this court has sanctioned his right of recovery in fliis ease by its decision in Norfolk & W. Railway Co. v. Neeley, 91 Va. 546. That case was not one of mere mental anguish. Ueeley, the plaintiff, suffered other wrongs, inconveniences and damage, to which, according to the doctrine of well recognized authorities, damages for his injured and insulted feelings might well be added.

We are of opinion that the judgment of the Corporation Court of Buena Yista, sustaining the demurrer to plaintiff in error’s declaration, is right, and it is affirmed.

Affirmed.  