14 Ga. App. 722 | Ga. Ct. App. | 1914
Lead Opinion
(After stating the foregoing facts.) Taking in reverse order the points- raised by the demurrer, we first consider the suggestion that the plaintiff -has no right to. recover damages for an assault upon her husband. We do not consider, under the allegations' made in the petition, that this question is involved, since it appears that’plaintiff is seeking to recover for independent damage resulting directly to her on account of or as a consequence of an alleged wilful and malicious assault made upon her husband by the defendant, with knowledge of the fact that she was-pregnant and in close proximity when the 'assault was made. The objection that the petition shows on its face that the fright from which the plaintiff suffered was occasioned by her own act, in approaching the scene of the alleged disturbance, we do not consider well taken, since her conduct in the premises was 3 natural consequence which, should have been anticipated by the fomentor of the disturbance; and the party guilty of the tort must be held liable for the reasonable and natural consequences to be anticipated therefrom. When the- plaintiff’s husband was called from the house and from her presence, and loud and abusive language, addressed to him by the defendant, thereafter reached her ears, the call of both nature and affection must have irresistibly drawn her to the door of the house, where she could discover the cause of the disturbance and the degree of danger, if any, that threatened her husband. This consequence
The first'ground of the demurrer presents a somewhat more difficult question. In the case of Williamson v. Central Railway Co., 127 Ga. 125, 131 (56 S. E. 119,122), it is said that “it is clear that the defendant is liable to the plaintiff for all elements of damages which legitimately flow from the tort,” but that “as a general rule, damages for mere fright are not recoverable. See State Mutual Life Asso. v. Baldwin, 116 Ga. 860 [43 S. E. 262]; Mabry v. City Electric Co., Id. 624 [42 S. E. 1025, 59 L. R. A. 590, 94 Am. St. R. 141]; Cole v. Atlanta R. Co., 102 Ga. 478 [31 S. E. 107]; Chapman v. Telegraph Co., 88 Ga. 763 [15 S. E. 901, 17 L. R. A. 430, 30 Am. St. R. 183].” It is said further, however, that “There, 'of course, may be instances where fright may be considered as an element of damages, but they should be restricted to where there is some physical injury attending the cause of the fright, or, in the absence of physical injury, where the fright is of such character as to produce some physical or mental impairment directly and naturally resulting from the wrongful act. Under any other conditions, fright should be regarded as mere emotion, and not sufficiently substantive to be the basis of a recovery for damages. See also, in this connection, Joyce on Dam. §§ 220, 221.” In Bray v. Latham, 81 Ga. 640 (8 S. E. 64), it is held that “wrongfully to cause, aggravate, or protract illness- is an injury to health,” and that such a tort may be redressed by damages. It appears to be clear, under the ruling in the Chapman case, supra, that one may not recover damages for mental pain and suffering alone, brought about by the negligence of a defendant; but on the other hand, as intimated with equal clearness in the case of Williamson V. Central Bailway Co., supra, it is otherwise “where there is some physical injury attending the cause of the fright, or, in the absence of physical injury, where the fright is of such character as to produce some physical or mental impairment directly and naturally resulting from the wrongful act.” In the case of Bunn v. Western Union Telegraph Co., 2 Ga. App. 845, 846 (59 S. E. 189), it is held' that “While mental suffering, unaccompanied by injury to purse or person, affords no basis for 'an action predicated upon wrongful acts merely negligent, yet such damages may be recovered
In Gulf &c. R. Co. v. Trott, 86 Tex. 412 (25 S. W. 419, 40 Am. St. R. 866), and in San Antonio &c. R. Co. v. Corley, 87 Tex. 432 (29 S. W. 231), the Supreme Court of Texas denies the right of recovery for fright when it is neither attended,nor followed by any other injury; but the same court, in the case of Hill v. Kimball, 76 Tex. 210 (13 S. W. 59, 7 L. R. A. 618), sustained a recovery where a miscarriage was caused by a mental shock unaccompanied by any physical violence whatever to the person of the injured woman. And in Gulf &c. R. Co. v. Hayter, 93 Tex. 239 (54 S. W. 944, 77 Am. St. R. 856, 47 L. R. A. 235), the court held .that where a physical injury results from a fright or other. mental shock, caused by the wrongful act or omission of another, the injured party may recover damages, if the act or omission is the proximate cause of the injury in the light of all the circumstances, to have been foreseen as a natural and probable" consequence thereof. The rule declared by the New York Court of Appeals, that no recovery can be had for injuries due solely to fright and excitement, unaccompanied by 'actual, immediate, personal injury, does not apply to cases of wilful tort. Preiser v. Wielandt, 48 App. Div. 569 (62 N. Y. Supp, 890).
It has been held in several cases that one who engages in a quarrel with the husband of an enceinte woman, in her hearing, without knowledge of her presence of condition, is not liable for a miscarriage. 1 Sutherland on Damages (3d ed.), 76, and cases there cited. But it was held in the case of Engle v. Simmons, 148 Ala. 92 (41 Southern, 1023, 7 L. R. A. [N. S.] 96, 121 Am. St. R. 59,12 Ann. Cas. 740), that one who causes nervous excitement in a pregnant woman by a wrongful trespass upon her home, to such an extent as to cause her to miscarry, is liable to her for the bodily pain and suffering endured which may be traced directly to the wrongful act, though no physical violence be done to her person. And it was held in Watkins v. Kaolin Manufacturing Co., 131 N. C. 536, 540 (42 S. E. 983, 60 L. R. A. 617), that an action will lie for physical injury or disease resulting from fright or nervous shock caused by negligent acts; but it was further held in that case
From the cases referred to, and from many others examined, we draw the conclusion that no recovery can be had for fright alone, caused by negligence merely, unless the negligence is so gross as to show a wanton disregard of the consequences on the part of the person causing the injury, and the physical injury resulting is one which would naturally flow as a consequence of the act complained of, so that the defendant must have foreseen the results which followed; or if, as held in the case of Dunn v. Western Union Telegraph Co. supra, the wrong against the plaintiff was wanton, voluntary, or intentional, tile defendant may be held liable for the natural and direct resulting effects. To put the matter in condensed form, it appears that no recovery can be had on account of fright alone, caused by less than such gross negligence on the part of one acquainted with the condition of the plaintiff, or with the, facts' and circumstances surrounding the plaintiff, as would authorize the conclusion that the defendant must have known that certain definite physical injuries would naturally flow from or follow the fright or nervous excitement brought about ,by him; or unless the fright, resulting in physical injuries ' or impairment of health, should have been brought about deliberately, maliciously, or wantonly by the defendant, through an utter disregard of the natural and probable consequences to the injured party, or from a wilful intent so to injure the party.
In the case under consideration, while it is alleged in the fifth paragraph of the petition that the defendant knew that the plaintiff was. pregnant and had been for several months preceding the date when he created the disturbance with her husband, and knew that she was in the house near which he assaulted her husband by drawing a revolver on him with intent to injure, 'and while there is an allegation that'he nevertheless wilfully and maliciously assaulted her husband as aforesaid, it is not alleged that the defendant com
Again, it does not appear, from any specific allegation in the petition, how or in what manner the -nervous shock to the plaintiff prostrated her, caused her great pain and suffering, and caused her to be delivered prematurely of the child then en ventre sa mere, nor how long the alleged premature birth occurred before the termination of the usual period of gestation — whether weeks before, or hours before the event was expected to happen. It- does not appear, from the allegations in the petition, that the premature birth, whether premature by hours or weeks, was the sole cause of the pain and suffering which the plaintiff underwent at the time her child was born; and, from the allegations touching the sequels? of childbirth, it does not clearly appear that the occurrence of the birth before the expected time was the exclusive proximate and producing cause of the injuries to the health of plaintiff, or how far they contributed thereto. Having in mind the strictness of the rule in this State as to recoveries on account of consequences resulting from fright, and bearing in mind, as decided in Williamson v. Central Railway Co., supra, that such recoveries must be confined to instances where there is physical injury attending the cause of fright, or where, if there is no such physical injury, the fright is of such character as to produce some physical or mental impairment directly and naturally resulting from the wrongful act, we are constrained to hold that the general demurrer to the petition was properly sustained. Judgment affirmed.
Dissenting Opinion
dissenting. I concur in the principles announced in the headnotes, but since I think the allegations of the petition sufficiently charging the defendant with gross negligence, to withstand the demurrer, it is my opinion that the court erred in dismissing the petition.