Caldwell, J.
This suit was brought in the Circuit Court at Memphis by Mrs. Jennie Ii. "Wads-worth and her husband, T. J. Wadsworth, against the Western Union Telegraph Company for failing to promptly deliver to her the following telegraphic messages:
“Memphis, October 2d, 1887.
“To Mrs. T. J. ■Wadsworth, Byhalia, Miss.:
“Your brother, Billie Howell, is in a dying condition at 105.,Jefferson Street.
“Ii. C. Walden.”
And
“Memphis, October 3d, 1887.
“ To Mrs. T. J. Wadsworth, Byhalia, Miss.:
“Mr. Ilowell died this morning. Advise us what to do. Will look for some one on morning train.
“Ii. C. "Walden.”
It is averred in the declaration that Byhalia is about twenty-eight miles from Memphis, and that the two places are connected by direct line of telegraphic wire and railroad; that Billie Howell, a brother of Mrs. Wadsworth, one of the plaintiff's was “seized with a mortal malady” in the city of Memphis on the 2d day of October, 1887, and that at about the hour of 7 o’clock p. m. of [697]*697that clay R. 0. "Walden, “a friend of the family,” presented to the defendant the former of the messages just set out-, written upon one of its clay or full-rate blanks, and that it was accepted by the defendant for immediate transmission and delivery to her; that through the gross, wanton, and reckless negligence of the defendant, and in palpable violation of its duty, the message was by the defendant detained and not delivered until about 11:30 o’clock a. m. of the next day, and several hours after the death of Howell; that he died about 6:30 o’clock a. m. on the 3d of October, 1887, and a few moments thereafter the second of said telegrams' was presented and accepted for immediate transmission and delivery, as was the other one, and that through the same gross, wanton, and reckless negligence of the defendant this second message was detained and not delivered by the defendant until about the same time the other one was delivered; that by reason of this negligence and breach of duty on the part of the defendant Mrs. Wadswortli was prevented from attending her dying brother and ministering to him in his last hours, and also from making desired preparations for his 'interment; that the messages were sent at her expense, and that she paid full toll therefor— “to her damage ten thousand dollars.”
Demurrer was sustained, and the suit dismissed. Plaintiffs have appealed in error.
The first assignment of demurrer is that the declaration shows no cause of action, in that it [698]*698avers no pecuniary damage or personal injury; that mental suffering, unaccompanied hy pecuniary injury, will not sustain an action.
Clearly the declaration discloses a case for some damage; and to this extent, it must be conceded, the action in sustaining the demurrer was erroneous.
The messages in question were couched in decent language, and were lawful in their purposes. Such being true, Walden had a legal right to send them, and Mrs. Wadsworth a legal right to receive them; and it was the plain duty of the defendant to deliver them promptly. Its dereliction of duty and violation of her legal right, as averred in the declaration and confessed in the demurrer, unquestionably gave her a right of action. “ Every infraction of a legal right, in contemplation of law, causes injury. This is practically and legally an incontrovertible proposition. If the infraction is established, the conclusion of damages inevitably follows.” 1 Suth. on Damages, p. 2.
But the question most debated at the bar by learned counsel, and the one of most importance and interest in this case, is whether or not injury to the feelings, anguish, and pain of mind, occasioned by the defendant’s breach of duty to Mrs. Wadsworth, can he regarded as an element of damage under the "law.
In actions for personal injury the general rule —which is too familiar to admit of citations of [699]*699authority to' sustain it — is that both bodily pain and mental suffering - connected therewith are to be considered by the jury in estimating the amount of damage sustained and the sum to he recovered by the plaintiff. Upon the latter element it is very truthfully and appropriately remarked by a learned author that “the'mind is no less a pai’t of the person than the body, and the sufferings of the former are sometimes more acute and lasting than those of the latter. Indeed, the sufferings of each frequently, if not usually, act reciprocally on the other.” 8 Snth. on Damages, 260.
After laying down the rule as we have stated it to be, and .citing some of the very many decisions adopting it, Mr. "Wood says:
“But we do not apprehend that the rule has any such force as to enable a person to maintain an action where the only injury is mental suffering, as might be thought from a reading of the loose dicta and statements of the Court in some of the eases. So far as I have been able to ascertain the force of the rule, the mental suffering referred to is that which grows out of the sense of peril or the mental agony at the time of the' happening of the accident, and, that which is incident to and blended with the bodily pain incident to the injury, and the apprehension and anxiety thereby induced.'’'' Wood’s Mayne on Damages, p. 74, note.
On the same subject Mr. Cooley says:
“But in this country, as well as in England, the ground of the recovery must be something [700]*700besides an injury to the feelings and affections or a loss of the pleasure and comfort of the society of the person killed; there must be a loss to the claimant that is capable of being measured by a pecuniary standard.” Cooley on Torts, 271.
Those arc the strongest statements of the rule contended for by the defendant which we have seen; and to them we give our full approval when applied to the class of cases with respect to which they are made. But they are applicable peculiarly, not to say exclusively, to actions for injury to the person, where physical injury is the sole ground of the action, and without which the action will not lie at all.
This, however, is an action on the facts of the case, which is permissible under our Code, and may include all matters embraced in an action ex delicto, and also those proper to be considered in an action ex contractu.
The plaintiff having a clear right of action for some damage, as we have already seen, may maintain her action and recover all the damage she may show herself to have sustained by reason of the wrongful act of the defendant; and in ascertaining the amount thereof all proven elements of damage admissible in either form of action, are for the consideration of the jury.
In an action for tort the injured party may recover such damages as result proximately and naturally from the wrongful act of the defendant, and also exemplary damages where the act was done [701]*701with malice, or under circumstances of aggravation ; and in an action for a broach of contract the measure* of the damages recoverable is, generally, the loss which the contracting parties, with all the facts before them, would have contemplated as flowing directly from its breach. 2 Thompson on Neg., p. 849; Gray’s Communications by Telegraph, 146.
The latter author, on the next page, says: “Neither in an action of tort nor in one of contract can a party recover damages for mental anguish ■ alone; he can recover such damages, in consonance with the foregoing rules, at least only where he is entitled to recover some damage on another ground.”
There is a large class- of actions for tort in\ which substantial recoveries are authorized and sustained for injury to the feelings of the person j suing, when the other damage is nominal merely. • As instances of such actions, w.e mention the case j of a husband suing for an injury to his wife, or Í for seducing or enticing her away from him, and f that of a parent suing for the seduction of a>\ daughter. In all these cases the main element of A damage, the real injury sustained, is the wound to the feelings — the loss of service upon which the: actions are technically based being but a legal/ Action, and more imaginary than real. Love v. Masoner, 6 Bax., 27; Parker v. Meek, 3 Sneed, 30; Maginnoy v. Soudek, 5 Sneed, 147; Cooley on Torts, 224, 226, 231; 3 Suth. on Dam., 744.
[702]*702With, respect to actions for breach of conti’act, Mr. Sutherland asks the question: “ May damages for breach of contract include other than pecuniary elements ? ” and then he proceeds to say: “ In actions upon contract the losses sustained do not, by reason of the nature of the transactions which they involve, embrace ordinarily any other than pecuniary elements. There is, however, no reason why other natura] and direct injuries might not justify and require compensation. Contracts are not often made for a purpose the defeating or impairing of which can, in a legal sense, inflict a direct and natural injury to the feelings of 'the injured party. A breach of promise of marriage is an instance of such a contract, and such considerations enter into the estimate of the damages. The action for such a cause is often referred to as an exceptional action. In a certain sense it is so; but in the particular .action under consideration it is only peculiar. It is an action upon contract, and the damages allowed are such as, considering the nature and benefits of the thing promise^!, will be adequate compensation.” 1 Suth. on Dam., 156, 157.
To further illustrate and answer his question, the same author says: * * “ Where a contract is made to secure exemption from a particular inconvenience or annoyance, or to confer a particular enjoyment, the breach, so far as it disappoints in respect to that purpose, may give a right to damages appropriate to the objects of the contract.” Ib., 157-8.
[703]*703These are hut illustrations and applications of the general rule, which we ' have already stated, for'the estimation of damages in actions for breach of contract. They servo the purpose of showing that in the ordinary contract onlj" pecuniary benefits are contemplated by the contracting parties, and that therefore the damages resulting from the breach of such a contract must be measured by pecuniary standards; and that where other than pecuniary benefits are contracted for, other than pecuniary standards will be applied in the ascertainment of the damages flowing from the breach.
The case before us (so far as it is an action for breach of contract) is subject to the same general rule, and the defendant is answerable in damages for the breach according to the nature of the contract, and the character and extent of the injury suffered by reason of its non-performance.
The messages were sent for a particular purpose, which was disclosed upon their faces, and of which the defendant had full notice. That purpose was not of a pecuniary nature. There was no offer or instruction to buy or sell any thing— no proposition or promise with respect to any business transaction. >
The messages were of far greater importance to the receiver than any 'of these. Tier brother was lying at the point of death in easy reach of her. It was information of this fact that the defendant first undertook to convey to her for a stipulated [704]*704sum, and which, .if conveyed promptly, would have enabled her to be with him in his last moments, and would have saved her the injury of which she complains.
Then her brother died away from her; his body needed her attention, and would have received it, as averred, if the defendant had done its duty. It was intelligence of the death which the defendant agreed, in the second place, to communicate to her.
The messages were proper in language, and lawful in purpose. She was entitled to the information they contained, and to whatever benefits that info'rmation would have conferred upon her, even though such benefits be mainly or altogether to the feelings and affections. The defendant contracted that she should have those benefits, and that she should be spared whatever pain and anguish such information, promptly conveyed, would prevent.
By all the authorities, including our Code, it was the duty of the defendant to transmit and deliver these messages “correctly and without, unreasonable delay,” and in failing to do so it became responsible for all loss or injury occasioned thereby. Code (M. & V.), §§ 1541, 1542; Marr v. Telegraph Company, 1 Pickle, 529; Gray’s Com. by Tel., Sections 81, 82, et seq.; Cooley on Torts, 646-7; Wharton on Neg., Sec. 767; 3 Suth. on Dam., 298-300; Sher. & Red. on Neg., Sec. 605.
This rule of damages is enforced by the Supreme [705]*705Courts of Georgia, Virginia, and other States, even where the message is in cipher. W. U. Tel. Co. v. Fatman, 73 Ga., 285 (54 Am. Rep., 877); W. U. Tel. Co. v. Reynolds, 77 Va., 173 (46 Am. Rep., 715), and Reporter’s note at end of case.
It is true that most of the adjudged eases, in which telegraph companies have been required to respond in damages for their negligence, have involved questions of pecuniary loss; hut we cannot agree that, for that reason, the liability should attach and be enforced in such cases only.
Telegraphy is of comparatively recent origin; and the law concerning the duties and liabilities of telegraph companies has hardly passed its infancy, and cannot be expected, at so early a day in its history, to be settled, even in' its important parts, by a long line of concurring decisions.
In addition to this, it is but reasonable to presume that such a flagrant breach of plain obligation with respect to matters so near the heart and so accustomed to the respect of all mankind as is here averred, has but seldom occurred, and, therefore, has but seldom been brought to the attention of the courts of the country.
To hold that the defendant is not liable in this case for the wrong and injury done to the feelings and affections of Mrs. Wadsworth by its default, would be to disregard the - purpose of the telegrams altogether, and to violate that rule of law which authorizes a recovery of damages appropriate to the objects of the contract broken; and, [706]*706furthermore, such a holding would justify the conclusion that the defendant might, with impunity, have refused to receive and transmit such messages at all; and that it has the right in the future to do .as it has done in this case, or, at least, that it cannot be required to respond in damages for doing so.
To such a result we think no Court should submit. The telegraph company is the servant rather than the master of its patrons. It is their prerogative to determine what messages they will present, and so they are lawful it is bound by law, upon payment of its toll, to transmit and deliver them correctly and promptly. It has no right to say what is important and what is not, what will be’ profitable to the receiver and what will not, what has a pecuniary value and what has not; but its single and plain duty is to make the transmission and delivery with promptitude and accuracy. When that is done its responsibility is ended; when it is omitted through negligence, the company must answer for all injury resulting, whether to the feelings or to th,e purse — one or both — subject alone to the proviso that the injury be the natural and. direct consequence of the negligent act.
Continuing the discussion, and as illustrative Of his position as to the allowance or non-allowance of a recovery for injury to the feelings, Mr. Wood says that an action will' not lie for “charging a lady with being a prostitute or a gentleman with [707]*707being a scoundrel, a black-leg, a cheat,” etc., unless the charge be productive of some special damages apart from mental anguish occasioned thereby. Wood’s Mayne on Damages, 75.
This is conceded to be true at common law, because, as stated by the same author, such offenses are not by the common law crimes in the legal souse. But if by statute the making of such charges be rendered actionable per sc, and the injured party in that way got a standing in Court, a recovery may be had for all damages sustained, including mental suffering.
In this connection, and in addition to what has already been said with regard to the right of action growing out of the defendant’s breach of duty, it is to be observed that we have a statute which expressly confers the right of action. Section 1541 of our Code requires telegraph companies to transmit'and deliver all proper messages “correctly and without unreasonable delay; ” and for a failure to do so, the defaulting company is, by Section 1542, declared to be “liable in damages to the party aggrieved.”
The language of each section is general, broad, and comprehensive. The act does not discriminate between messages appertaining to matters pecuniary merely and those having reference to matters of a domestic nature, as are those now before us. ■ On the contrary, all must be transmitted and delivered alike. The obligation upon the company 'is the same in the one class of eases as in the [708]*708other; and if default occur, the remedy is the same for one person that it is for another person.
There is no discrimination with respect to the nature of the messages to "be conveyed, nor. is there any discrimination with respect to the nature of the damages to be recovered for the company’s default. One section imposes a general duty, and the other gives a universal right of action for the breach of that duty. And of necessity the nature and amount of damages recoverable in each particular case are to be determined by the character of the message and the extent of the injury caused by the defendant’s default.
It is true that the “officer or agent” of the company who willfully violates any of the provisions of Section 1541 is, by Section 1542, declared to be “guilty of a misdemeanor,” but that does not take the place of or diminish the civil liability. Both remedies are expressly given, and neither is exclusive or in lieu of the other. The offending officer or agent is guilty of a misdemeanor, and he and the company are “ also liable in damages to the aggrieved party.”
The question with respect to' the measure of damages in a case like this, though not of frequent occurrence heretofore, is not entirely new; J nor is the view we have expressed without express j authority to sustain it.
Sherman & Kedfield say:
“In case of delay or total failure of delivery) of messages relating to matters not connected.’ [709]*709with 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 messages. Delay in the announcement of a death, an arrival, the straying of a child, and the like, may often be 'productive of an injury to the feelings which cannot easily be estimated in money, but for which a jury should be at liberty to award fair damages. Yet in such cases the damages should not be enhanced by evidence of any circumstances which could not reasonably have been anticipated as probable from the language of the written message.” Sher. & Red. on Neg., Sec. 605, p. 662.
To the same effect are the following cases: So Rellc v. W. U. Tel. Co., 55 Texas, 303 (40 Am. R., 805); G., C. & Santa Fe R’y Co. v. J. T. Levy, 59 Texas, 542 (46 Am. R., 269); Stuart v. W. U. Tel. Co., 66 Texas, 580 (59 Am. R., 623).
In the first of these cases the telegraph company was held to be liable to So Relie for injury to his feelings, caused by its failure to promptly transmit and deliver to him a telegram announcing the death of his mother, whereby he was prevented from attending her funeral.
. Levy’s case is properly reported in the headnote, which is as follows: .
“The plaintiff delivered to the defendant, a railway company operating a -telegraph, a message on Sunday, announcing the death of his wife and child to his father, and requesting him to come [710]*710to Mm. The defendant negligently failed to deliver the message until the next day, too late for the funeral. Held: That the plaintiff was entitled to . recover, and that exemplary damages were proper.”
In the other case, Stuart sued the defendant for the non-delivery of a telegram, whereby he was prevented from seeing his brother in his last illness and being present at his funeral. Compensation for injury to the feelings was allowed, and a judgment for $2,500 was sustained.
The father of the plaintiff’ in the Levy case just mentioned also brought suit for the negligent failure of the company to deliver to him his son’s telegram. The Court held that he (the father) could not recover for mental suffering, because he averred no actual damage to sustain his action; and in this decision So Kelle’s case was disapproved to the extent that it was supposed to authorize a recovery for injury to the feelings only. G. C. & Santa Fe R’y Co. v. J. Levy, 59 Texas, 563 (46 Am. R. 278).
These four are the only cases hearing upon the exact question under consideration which we have been able to find, or to which our attention has been called by counsel.
Then, upon what we regard as sound reason, public policy, and authority as well, we are. constrained to differ with Ilis Honor, the Circuit Judge, and hold that the first ground of demurrer is not well taken in any particular.
[711]*711That the amount, of damages allowable in such a case as this is not capable of easy and accurate mathematical computation is freely conceded; hut that should not he a sufficient reason for refusing or defeating the right of action ’ altogether; for the same objection may he urged with the same force in all cases where mental and bodily suffering are treated as proper elements of damage.
It is very appropriately said, however, in the conclusion of the opinion in So Relie’s case that “great caution should he observed in the trial of cases like this, as it will he so easy and natural to confound the corroding grief occasioned by the loss of the parent or other relative with the disappointment and regret occasioned by the fault or neglect of the company; for it is only the latter for which a recovery may be had, and the attention of juries might well he called to that fact.”
Nor do we think the suggestion that the decision wo are making may encourage the bringing of other suits of a similar nature is of very great moment as a matter for the consideration of the Court in its endeavor to reach a just and sound conclusion.
It is rather to he hoped that instances of such dereliction of plain, easy, and important duty have not been very numerous in the past, and that they will seldom transpire in the future.
The other ground of demurrer is, that the plaintiffs cannot maintain this action for want of [712]*712privity of contract between them and the defendant. This ground is also bad.
The question is whether a person, to whom. a telegrapic message is directed, has a right of action against the company for its negligent delay or non-delivory of the message.
. “ In England this question is undoubtedly answered in the negative. In America, on the other hand, it is invariably answered in the affirmative.” Gray’s Com. by Tel., Sec. 65; Wharton on Neg., Sec. 758; 3 Suth. on Dam., 314; Slier. & Ned. on Neg., Sec. 560; 2 Thomp. on Neg., p. 847, Section 11.
The application of the American rule in this case is proper in the highest degree, for the messages themselves show unmistakably that they were intended for the benefit of Mrs. Wadsworth, and that she, of all persons, was the one interested in the intelligence to be conveyed.
Moreover, she is “ the party aggrieved,” and our statute gives the right of action to such party. Code (M. & Y.), §1542.
The judgment is reversed, and the case remanded at the cost of defendant.