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.10 At commonlaw, the husband s injury was legally cognizable, even though today we wouldregard the harm of adultery as an intangible injury likely to produce emo-tional distress in the betrayed spouse.To the 19th-century mind, however,the seduction of the wife by the defendant was regarded not simply as anevent that caused emotional distress to the husband but as a loss of the hus-band s right of exclusive sexual access to his wife.Such an injury was viewedas analogous to a loss of property and was thought of as permanent in natureand as properly giving rise to a legal claim, regardless of the husband s sub-jective response.Accordingly, the claim for criminal conversation was classi-38 | The Measure of Injury fied as a discrete intentional tort that afforded the husband a right to recoverall consequential damages, rather than a claim for emotional harm.11It was also telling that the claim for criminal conversation was gender-specific; until the turn of the 20th century, it could not be brought by a wifeagainst a defendant who had had sexual intercourse with her husband.12Courts reasoned that the wife lost nothing of permanent value when herhusband committed adultery.Reflecting a sexual double standard, the pre-vailing norm was that a wife should ordinarily forgive her husband whenhe committed adultery and thereby repair the marital relationship.Becauseshe had no right to her husband s sexual fidelity, any injury the wife sufferedwas relegated to the class of noncompensable hurt feelings and emotionaldisturbance, rather than analogized to a tangible property loss.13 Crucially,when the plaintiff was a woman, the harm of adultery was conceptualizedas an intangible harm; and, following the basic rule that denied recovery formental disturbance alone, the law placed no value on the plaintiff s injury insuch situations.Rarely is the connection between gender and the recognition of injuryas explicit and as straightforward as it was in the old tort of criminal con-versation.As mentioned earlier, for quite some time, tort doctrine has beengender-neutral on its face claims given to husbands are given to wives andvice versa.However, the example of the criminal conversation tort does high-light a prominent feature of the nervous-shock cases that arose at the turn ofthe 20th century.As in the criminal conversation tort, in the nervous-shockcases, the legal categorization of the claim as an emotional distress claimwas affected by the gender of the plaintiff.The plaintiffs in each of the earlyclassic cases that came to define the nervous-shock claim were women, anda connection between women and fright-based injury was forged from thebeginning.Several of these women were pregnant at the time of the frighten-ing occurrence and suffered miscarriages that they believed were caused bytheir fright.Many women seeking compensation for fright-based injury alsoalleged that they suffered from some form of hysterical disorder, a condi-tion that was thought to be peculiar to women.Thus, it is not surprising thatsome courts viewed these claims as distinctive in nature and treated themless favorably than other negligence claims that also produced a combinationof physical and emotional harms.The most prominent early U.S.case arose in New York in 1896 when aplaintiff, Annie Mitchell, suffered nervous shock while waiting to board oneof the defendant s horse-drawn railway cars.14 The car came so close to hittingMitchell that she actually stood between the horses heads when they wereHistorical Frames | 39 stopped. Corroborated by medical evidence, Mitchell claimed that her frighthad caused her to lose consciousness and to suffer a miscarriage.At the time the case was decided, the development of negligence law wasstill in its early stages.Particularly with the growth of railroad travel, courtswere faced with the novel question of deciding how to categorize injurycaused by nervous shock produced by the dramatic rise in the number ofrailway accidents and incidents
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