Buchanan v. Stout

108 N.Y.S. 38 | N.Y. App. Div. | 1908

MIller, J.:

The plaintiff has recovered a judgment for $100 forpersonal injuries resulting from shock and distress of mind caused by seeing a, pet cat mangled by the defendant’s dog. The assault Occurred on the premises occupied by the plaintiff, and her claim is that the action is for trespass, and that all damages resulting therefrom,, including mental distress, are recoverable.

We do not deem it necessary at this time to discuss the proposi-' tion that damages for injuries caused by a dog are not recoverable-unless a vibious propensity of the dog and knowledge thereof on the part of the owner be shown. An action of trespass does not lie merely because one’s dog happens, to wander upon the premises of another; at least when not accompanied by the owner. ■ We will assume that there was sufficient proof in this case of viciousness and,scienter. The action then is in effect an action for negligence or nuisance; and it seems plain that the rule stated in Mitchell v. Rochester, Railway Co. (151 N. Y. 107) is applicable, to wit: “No recovery can be had for injuries sustained by fright occasioned by the negligence of another, where there is no immediate personal iirjjuy.” True, this rule has no application to a case of willful wrongs where an intention to cause mental distress is shown, and probably not to cases of wantonness. (Sade v. Lynn & Boston Railroad, 168 Mass. 285; Preiser v. Wielandt, 48 App. Div. 569.) The case before us does not disclose either willfulness or gross negligence on the defendant’s part. In the case of the loss, of a parent or child, a wife or a husband, through the negligence of another, the mental distress thereby occasioned cannot be a basis for a recovery, but only the pecuniary loss sustained, and we think in this case the plaintiff was limited to the pecuniary loss sustained by the death, of her cat, and' there was no proof to show what that -was. There is no claim that the plaintiff was attacked; she was-u perfectly secure in her house, and witnessed the. tragedy from her j window. . .

The judgment must be reversed.

Woodward, Jerks, Hooker and Gayhor, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.