LAWYERS REPORTS ANNOTATED NEW SERIES. George Huston, the husband of plaintiff, had been ill with typhoid fever, and was recovering, when defendant's street supervisor, who was engaged in marking the street line, in attempting to dig a hole for a marker, encountered a stone, which he undertook to shatter with a charge of dynamite. He was at work immediately in front of the Huston residence, and knew of the illness of Mr. Huston and his wife. Without giving notice to them of his intention, he exploded the charge, the noise and concussion from which were sufficient to shatter window glass in the neighborhood. Mr. Huston was greatly shocked and frightened, and immediately attempted to go to the relief of his wife. The shock and exertion APPEAL by plaintiff from a judgment of caused a relapse, and he gradually became Court of Common Pleas for North-weaker until he died two weeks later. ampton County in favor of defendants in an Mr. Harry C. Cope, for appellant: action brought to recover damages for injuries alleged to have been caused by defendant's negligence. Affirmed. Subject Note.-Right to recover for physical injury resulting from fright caused by a wrongful act. I. Introduction, 49. II. Fright caused by negligence. a. Treating physical injury resulting from fright as a mere incident of the fright, 53. b. Remoteness of the damage, 54. c. Doctrine of expediency, 63. d. Miscellaneous cases, 65. III. Fright resulting from wilful tort, 66. IV. Fright because of another's danger, 68. I. Introduction. That mere fright, without any physical injury resulting therefrom, cannot form the basis of a cause of action, is well settled. It cannot be denied that the suffering in such cases may be very real, and that it may be the proximate result of a negligent The leading English case, Victorian R. Co. v. Coultas, L. R. 13 App. Cas. 222, which is authority for all the others which act. But such injuries are, as a rule, slight and unimportant; and, even when they are considerable, they give no right of action, since the law is designed to meet general conditions, and not exceptional cases. The chief reason, probably, for denying recovery, is the difficulty of administering any other rule in practice. Many ill consequences follow from wrongs for which the law cannot afford redress because of the inadequacy of the methods and means of courts to reach just results with sufficient certainty. The evidence of such injury is entirely within the control of the sufferer, and the opportunity for simulation is so great, and the means of testing the truth of the allegations so inadequate, that a wise public policy seems to forbid the allowance of a recovery in such cases. But when the physical frame is visibly affected by the fright, these considerations are no longer of much force. When a material physical injury has resulted from fright caused by a negligent act, simple justice and all the deny a recovery, has been dissented from in | 380; 1 Sutherland, Damages, § 21; 1 Dulieu v. White, 70 L. J. K. B. N. S. 837. Thomp. Neg. § 155; 1 Beven, Neg. pp. 76– Homans v. Boston Elev. R. Co. 180 Mass. 84; Sedgw. Damages, 8th ed. § 861; 1 456, 57 L. R. A. 291, 91 Am. St. Rep. 324, Joyce, Damages, § 364; Tuttle v. Atlantic 62 N. E. 737. City R. Co. 66 N. J. L. 327, 54 L. R. A. 584, 88 Am. St. Rep. 491, 49 Atl. 450; Sanderson v. Northern P. R. Co. 88 Minn. 162, 60 L. R. A. 406, 97 Am. St. Rep. 509, 92 N. W. 542; Watson v. Dilts, 116 Iowa, 249, 57 L. R. A. 559, 93 Am. St. Rep. 239, 89 N. W. 1068. A recovery may be had provided the act or omission is the proximate cause of the injury. gard the physical injury, which is the real basis of the action, merely as evidence of the degree of the fright or the extent of the damages. Moreover, as before stated, the right to recover in this case is subject to none of the objections to the right to recover for fright alone. Here the courts have to deal with a tangible injury to the body, quite as capable of proof and of measurement in damages as if it resulted from an actual blow, and not with a vague, indefinite injury to peace of mind, impossible of proof and easily simulated. Gulf, C. & S. F. R. Co. v. Hayter, 93 Tex. 239, 47 L. R. A. 325, 77 Am. St. Rep. 856, 54 S. W. 944; Watkins v. Kaolin Mfg. Co. 131 N. C. 536, 60 L. R. A. 617, 42 S. E. Mr. Russell C. Stewart, for appellee: 983; Denver & R. G. R. Co. v. Roller, 49 There can be no recovery for fright. L. R. A. 77, 41 C. C. A. 22, 100 Fed. 738; Fox v. Borkey, 126 Pa. 164, 17 Atl. 604; Cameron v. New England Teleph. & Teleg. Ewing v. Pittsburgh, C. C. & St. L. R. Co. Co. 182 Mass. 310, 65 N. E. 385; Smith v. 147 Pa. 40, 14 L. R. A. 666, 30 Am. St. Rep. Postal Teleg. Cable Co. 174 Mass. 576, 47709, 23 Atl. 340; Linn v. Duquesne, 204 Pa. L. R. A. 323, 75 Am. St. Rep. 374, 55 N. E. 551, 93 Am. St. Rep. 800, 54 Atl. 341; Mitanalogies of the law seem to require that | the person guilty of the negligence shall be liable in damages for the results thereof. Te sustain recovery in such a case is not to introduce any new cause of action, nor does it require the formulation of any new principles. Every link in the chain of reasoning is covered by old and well-established ruies. Yet perhaps no other question of the law of negligence has created so much dissension among the authorities. And judicial conservatism has led many of the courts to refuse recovery upon grounds which show great lack of clearness in reason- The objection that the physical injury in ing, and failure to perceive the simple, well-such case cannot be regarded as the proxiestablished principles by which the question is governed. Three different theories why there should be no recovery in such a case are advanced, not one of which it is believed will bear the test of analysis: First, it is argued that, since there can be no recovery for fright alone, it must necessarily follow that there can be no recovery for the consequences of fright; second, that physical injury resulting from fright caused by negligence is not the proximate result of the negligence; third, that, on the ground of mere expediency, recovery must be denied, because of the danger of opening the door to fictitious litigation and the impossibility of estimating the damages. The courts which argue that, if there can be no recovery for fright alone, it must logically follow that there can be no recovery for the consequences of the fright, lose sight of the fact that in the first case the sole basis of the action is the fright, which the courts regard as too intangible and uncertain to be the foundation of a right to damages, while in the second case the basis of the action is not the fright, but the physical injury, a tangible, material harm, which the law has always regarded as a legal injury. When the courts say, as they sometimes do, that, although a physical injury results, the right of action must still depend upon the question whether a recovery may be had for fright, they entirely misconceive the situation, and treat the fright, which is but a link in the chain of causation, as the foundation of the cause of action, and re mate result of the negligent act is equally untenable. An act is a proximate cause of an injury when the injury is the natural and probable consequence of the act in the light of the attending circumstances; and it is not necessary that the injury should immediately follow the wrong if it is directly traceable to it without any other cause intervening. As stated in the frequently quoted definition of proximate cause in Milwaukee & St. P. R. Co. v. Kellogg, 94 U. S. 469, 24 L. ed. 256, the primary cause may be the proximate cause of a disaster, though it operates through successive instruments; and the question always is, Was there an unbroken connection between the wrongful act and the injury,-a continuous operation? Did the facts constitute a continuous succession of events so linked together as to make a natural whole, or was there some new and independent cause intervening between the wrong and the injury? And this intervening cause must be one not set in motion by the original wrongdoer, but something entirely independent. In case of physical injury resulting from fright caused by negligence, the only cause intervening between the wrongful act and the injury is the fright. But the fright itself is set in motion by the wrongful act. How, then, can it be deemed an independent, intervening cause? If the fright is a natural consequence of the wrongful act, and the fright causes the nervous shock and consequent physical injury, what is there to break the natural connection between the chell v. Rochester R. Co. 151 N. Y. 107, 34 L. R. A. 781, 56 Am. St. Rep. 604, 45 N. E. 354; Spade v. Lynn & B. R. Co. 168 Mass. 285, 38 L. R. A. 512, 60 Am. St. Rep. 393, 47 N. E. 88; Ward v. West Jersey & S. R. Co. 65 N. J. L. 383, 47 Atl. 561; Smith v. Postal Teleg. Cable Co. 174 Mass. 576, 47 L. R. A. 323, 75 Am. St. Rep. 374, 55 N. E. 380; White v. Sander, 168 Mass. 296, 47 N. E. 90. the nonsuit. We do not concede either point, and this case might be affirmed on either. But we have had the case reargued before the full court, to settle finally the main question that there can be no recovery of damages from fright or other merely mental suffering unconnected with physical injury. The principle was really decided in Fox v. Borkey, 126 Pa. 164, 17 Atl. 604, and has been confirmed and enforced in Ewing v. Pittsburgh, C. C. & St. L. R. Co. Mitchell, Ch. J., delivered the opinion of 147 Pa. 40, 14 L. R. A. 666, 30 Am. St. the court: Rep. 709, 23 Atl. 340, and Linn v. Duquesne, The learned judge below not admitting, but conceding for the purpose of his view, that there was evidence of negligence and of proximate cause sufficient to carry the case to the jury, nevertheless refused to take off negligent act and the injury suffered? The analogies of the law also demonstrate the absurdity of the theory that the fright is an independent, intervening agency, which breaks the chain of causation. If a man places another in sudden peril, and, in atters of the body are a part of the physical tempting to escape therefrom, the latter sus-system, and are not only susceptible of tains an injury, the original wrongdoer is lesion from external causes, but are also liable therefor, although, if the person liable to Be weakened and destroyed from whose safety was imperiled had remained causes primarily acting upon the mind. If passive, no injury would have resulted. His these nerves, or the entire nervous system, is impulsive act, having been the result of the thus affected, there is a physical injury negligence which placed him in danger, is thereby produced, and, if the primal cause not regarded as an independent, intervening of this injury is tortious, it is immaterial cause sufficient to relieve the original wrong whether it is direct, as by a blow, or indoer from liability. So, if one frighten a direct, through some action upon the mind." horse, causing him to run away, he may be Sloane v. Southern California R. Co. 111 held liable for injury to person or property Cal. 668, 32 L. R. A. 193, 44 Pac. 320. done by the horse in its flight. As stated by the court in Hickey v. Welch, 91 Mo. App. 4, the ancient superstition which found the proximate cause of nervous and physical diseases in diabolical possession was scarcely more ridiculous than the theory that when a physical ailment follows a great fright due to another's tortious act, the fright, and not the tort, is the proximate cause of the injury. Indeed, the courts themselves place more stress on the argu ment that physical injury is not the natural or probable consequence of the fright. But that serious physical illness and suffering may be the consequence of fright or exposure to sudden peril is matter of common knowledge. The effect of sudden peril or fright is almost invariably to produce nervous disorder. All emotions are due to miThe doctrine of expediency, however, has nute physical changes in the nervous sys-probably been most influential with the tem, and, if the change resulting from the courts which have denied the right to renervous shock is extensive, it sometimes in- cover. Their judicial conservatism is duces disease. "The interdependence of the alarmed at the idea that to permit recovmind and body is in many respects so close ery in such cases would open up a new field that it is impossible to distinguish their re- of litigation which they fear would overspective influence upon each other. It must whelm the courts with a flood of meretribe conceded that a nervous shock or par cious cases. But if a wrong has been comoxysm, or a disturbance of the nervous sys-mitted, and a material injury has resulted tem, is distinct from mental anguish, and therefrom, it is hardly becoming for a falls within the physiological, rather than court of justice to refuse recovery simthe psychological, branch of the human or ply on the ground that to permit ganism. It is a matter of general knowl-recovery would establish a edge that an attack of sudden fright, or an ΟΙ action, and possibly induce It is true that in many cases it might reasonably be argued that fright so great as to cause serious physical injury was not the natural or probable consequence of the negligent act, and every case must, of course, depend upon its own peculiar circumstances. In many cases which have denied the right to recover on the ground that the injury was not the natural or reasonable result of the negligent act, the decision was probably perfectly just; but in the majority of these cases the court, instead of contenting itself with deciding that the circumstances of the case were not such as to justify recovery, has gone further, and laid down the broad proposition that no recovery can ever be had for physical injuries resulting from fright caused by negligence. new cause others |