Page:Harvard Law Review Volume 8.djvu/396

380 38o HARVARD LAW REVIEW. subjective, and do not involve any corporal affection. A general and uniting feature is the constant necessity of guarding against the recognition of imaginary or trifling troubles, or of claims likely to be based on misrepresentation or individual idiosyncrasies. Several distinct groups, however, may be noted. 4. First, terror or fright at impending physical violence has long been recognized in the action for Assault (anciently " Menace"), which calls for a number of detailed distinctions. As yet an action for fright indirectly caused — as in a collision or by blast- ing — cannot be said to be recognized ; though, so far as the legit- imacy of the Damage element is concerned, the analogies favor it. 5. Another distinct sort of mental injury has also lately been much discussed, under the head of the " right to privacy." This seems to be in essence a right to be protected against that mental annoyance of a complex sort which results from the exposure of private affairs; and, though specific prevention is the remedy com- monly desired, it seems likely that damages would be based on the above idea of the nature of the injury. Its delimitation has not yet been successfully effected, and cannot be for some time. A careful consideration of the distinction between the Damage ele- ment and the Excuse element would probably assist its orderly development. 6. A third group includes the miscellaneous forms of injury termed loosely " mental pain" or " mental anguish," — feelings of distress caused by libel, seduction of a daughter, alienation of marital affections, eviction from a house or a railway car, violation of a grave, failure to deliver a telegram, and by other conduct. The usual question, forming a common feature, is whether they should be recognized at all as the basis of a claim. A principle often applied is that there must be an accompanying physical injury, or perhaps some other admitted tort. Very often the only question is one of Responsibility, i. e. whether the harm was the natural consequence of the defendant's act. The telegram cases probably all belong under Contracts. Most of the above instances are treated as a part of the law of Damages ; but a careful analysis shows us that a part of that branch of the law involves, not the mere measure of compensation for an admitted harm, but a deter- mination whether a particular harm can be recognized at all as the basis of a claim ; and this is properly a question of torts, so far as it involves not a contractual but a universal and irrecusable obligation.