222 Mich. 157 | Mich. | 1923
Defendant conducts an undertaking business in the city of Detroit. On the morning of April 11, 1920, defendant was called by plaintiff, or someone in her household, and advised that an infant had died in her house during the preceding night, and he was requested to come and take charge of and bury it. Defendant’s assistant at once repaired to plaintiff’s home and found that the baby belonged to a Mrs. Lago, a married woman, who .had been a guest for several weeks at plaintiff’s home. The baby had prematurely arrived and was slightly deformed in
It is plaintiff’s claim that she was so horrified and frightened over the threat of defendant to leave the body of the deformed child that she fainted after defendant left her house, and thatTO days later she suffered a miscarriage by reason thereof, and was made sick for several days thereafter. At the conclusion of the proofs defendant requested a directed verdict, but the trial court overruled the motion and submitted the question to the jury. After considering the question for a time they awarded plaintiff damages in the sum of $500.
It is asserted, but not argued, by plaintiff’s counsel that when defendant made this visit and returned the body he was guilty of an assault. There is nothing in the record that has been called to our attention which would support this assertion. It is not shown that defendant offered any physical violence, or that he threatened her, or that any such thing was contemplated by defendant. Unless there was a threat or offer on the part of defendant to do plaintiff physical injury, there was no assault, within the law. 3 Cyc. p. 1066.
The questions of trespass and assault being eliminated, the case is so similar to Nelson v. Crawford,
In this case Mr. Justice Grant calls attention to the fact that the courts are divided on the question whether damages may be recovered - for fright or mental anguish, where there is no physical injury. Many of the eases are reviewed in the opinion and the conclusion is reached that what defendant did was not an assault and that no damages could be recovered for fright and mental distress, because there was no physical injury. This case has been many times referred to and approved in subsequent cases, and the doctrine of that case was directly applied in Ellsworth v. Massacar, 215 Mich. 511.
A leading case on the question, and one often cited, is Mitchell v. Railway Co., 151 N. Y. 110 (45 N. E. 354, 34 L. R. A. 781, 56 Am. St. Rep. 604). In that case it is said, in part:
“If the right of recovery in this class of cases*162 should be once established, it would naturally result in a flood of litigation in cases where the injury complained of may be easily feigned without detection, and where the damages must rest on mere conjecture or speculation. The difficulty which often exists^ in cases of alleged physical injuries, in determining whether they exist, * * * would not only be greatly increased, but a wide_ field would be opened for fictitious or speculative claims. To establish such a doctrine would be contrary to principles of public policy. * * * We think the most reliable and better-considered cases, as well as public policy, fully justify us in holding that the plaintiff cannot recover for injuries occasioned by fright, as there was no immediate personal injury.”
The case of Ewing v. Railway Co., 147 Pa. St. 40 (23 Atl. 340, 30 Am. St. Rep. 709), considers the question:
“The wrong of which the plaintiff Eva Ewing complains was a collision of cars upon the railway of the defendant company, in consequence of which the cars ‘were broken, overturned, and thrown from the track, and fell upon the lot and premises of the plaintiffs, and against and upon the dwelling house of plaintiffs, and thereby and by reason thereof greatly endangered the life of the said Eva Ewing, then being in said dwelling house, and subjected her to great fright, alarm, fear, and nervous excitement and distress, whereby she then and there became sick and disabled, and continued to be sick and disabled from attending to her usual work and duties, and suffered and continues to suffer great mental and physical pain and anguish, and is thereby permanently weakened and disabled,’ etc. To this statement the defendant demurred, and the court below entered judgment for defendant upon such demurrer. This ruling is assigned as error. It is plain from the plaintiff’s statement of her case that her only injury proceeded from fright, alarm, fear, and nervous excitement and distress. There was no allegation that she had received any bodily injury. If mere fright, unaccompanied with bodily injury, is a cause of action, the scope of what are known as ‘accident cases’ will be*163 very greatly enlarged, for in every case of a collision on a railroad the passengers, although they may have sustained no bodily harm, will have a cause of action against the company for the ‘fright’ to which they have been subjected. This is a step beyond any decision of any legal tribunal of which we have knowledge,” . ¡
This case is reported in 14 L. R. A. 666 and an. appended note discusses the cases and the variance of the courts on the question. A valuable note is also annexed to the case of Gulf, etc., R. Co. v. Hayter, 77 Am. St. Rep. 856 (93 Tex. 239, 54 S. W. 944, 47 L. R. A. 325).
Whatever may be the merits of the respective rules of damage this court has aligned itself with those; courts which hold that no damages can be assessed! for fright or mental distress unless accompanied with; physical injury. The case is devoid of any evidence of assault, and, if we apply the rule laid down in Nelson v. Crawford, supra, the defendant was entitled to a directed verdict. The trial court was in error in not granting defendant’s motion.
■ The judgment will be set aside with no new trial. Defendant will recover his costs.