Hines v. Evans

Nov 11, 1920
11491
Reporters:
, ,
Before:
Jenkins
Jenkins, P. J.

(After stating the foregoing facts.) 1. The petition in this case does not allege wantonness on the defendant’s part. If, therefore, as claimed in the several grounds of the demurrer, the original petition should be construed as an action to recover damages arising from mere negligence causing fright, shock, and mental suffering, but which was neither attended with physical injury nor followed by physical or mental impairment as a direct and natural consequence, then it would fail to set forth a cause of action and should have been dismissed. Under such a construction it could not even be aided by amendment, since not even a defectively stated cause of action would be shown to amend by. Davis v. Muscogee Mfg. Co., 106 Ga. 126 (32 S. E. 30); Burton v. Wadley Southern R. Co., 25 Ga. App. 599 (103 S. E. 881, 882). Taking the term “physical injury” as being synonymous with “bodily harm” or “bodily hurt,” while the original petition shows that the demolition of the house caused the plaintiff to be “ thrown about,” and that “ said shock and injury ” almost instantly caused her mind to become unbalanced, it is true that the nature, extent, and character of the injury is in no wise set forth and described, and while the amendment elaborates as to the manner in which the injury was occasioned, in that it says she was thrown about, upon, and against the floor and that the shock thus received caused “ great bodily and mental pain and suffering,” even the amendment entirely fails to set forth anything at all as to the nature, character, and extent of the bodily hurt. The defendant’s counsel contend that there is therefore nothing in the petition, even as amended, which could authorize a recovery for physical injuries.

While, as against a demurrer pointing out that the nature and extent of such alleged injuries were not set forth and described, we hardly think that special damages could be recovered therefor, still the language of the demurrer does not in fact raise this precise question. It does not deny the right to recover damages for the element of physical injury because the nature, extent, and char*833acter are not adequately set forth, but disputes the existence of a cause of action merely because, in the language of the demurrer, “ the petition shows by the facts alleged that no physical injuries attended the cause for fright.” We think the petition does show physical injuries inflicted contemporaneously with the shock. Even as originally brought, the petition shows that the demolishment of the house caused the plaintiff Lo be “thrown about,” that there was at the time both “shock and injury.” In other words, she was physically thrown about the room, shocked, and injured. This Avould certainly seem to constitute a battery of her person, resulting-in- physical injury, the nature and extent of which axe not described. By amendment it is shoAvn that she was thrown about, upon, and against the floor, and from such shock and injury suffered great bodily as well as mental pain. We do not think, therefore, that it can be properly said, in the language of tbe demurrer, that “ the petition shows by the facts alleged that no physical injury attended the cause for fright;” and since the demurrer must be taken to confine itself to the objections stated, tire general allegations setting fortli an accompanying physical injury should be taken as sufficient.

2. Tbe demurrer, in order to authorize dismissal of the suit, necessarily had to raise the additional objection that tbe petition fails to show that the alleged mental impairment “ was the natural and proximate result of the fright or shock, or that the defendant could or should have known that the negligent acts alleged in the jietition would with reasonable certainty cause the results complained of.” The two statements here contained amount, we think, to one and the same objection, since if it be granted that the defendant’s misconduct was the efficient cause of the injury and that the result complained of directly followed as the reasonable and natural consequence, then the defendant would be chargeable with knowledge that such an effect avotlIcI likely follow from such a cause. Indeed, it might be stated as an underlying- principle of general application in negligence cases that if the injury complained of could not have been reasonably foreseen and anticipated as the direct and natural result of the defendant’s act, then the wrong is not actionable. It is altogether impossible to harmonize the various holdings of the different courts of the country upon the question whether damages can he recovered where fright *834is occasioned by the negligence of the defendant unaccompanied by any sort of concurrent physical injury, but where the shock or fright is of such nature as to be directly followed as a natural and reasonable consequence by physical or mental impairment. (See, for a general and exhaustive treatment of this and kindred questions, 1 Sutherland on Damages (3d ed.), § 21 et seq.) The rule, however, as recognized in this State has been stated by the Supreme Court in Williamson v. Central R. Co., 127 Ga. 125, 131 (56 S. E. 119), as follows: “As a general rule, damages for mere fright are not recoverable. See State Mutual Life Asso. v. Baldwin, 116 Ga. 860; Mabry v. City Electric Co., Id. 624; Cole v. Atlanta R. Co., 102 Ga. 478; Chapman v. Western Union Telegraph Co., 88 Ga. 763. 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.” (Italics ours.)

In the instant case the ground of demurrer now under consideration points out that the petition fails to show either contemporaneous physical injury, or that the resulting mental impairment was the natural and proximate consequence of the fright. As we understand the principle, even whore in such a case there is attendant physical injury, in order to recover for resulting mental or physical impairment, such consequences must naturally and proximately follow. Does the petition in this case authorize a recovery for this element of damage ? From the statement of the pleadings above made, it will be seen that the petition charges directly and in terms that the stated negligence on the part of the defendant constituted the “ sole and proximate ” cause of the plaintiff’s mental derangement. Again, it is alleged that “ as a result of said shock and injury the mind of petitioner almost instantly became unbalanced,” etc. It is plain, therefore, both from the facts alleged and from the charge as in terms made, that the insanity was actually and almost instantly brought about by the mental and physical shock. Such being the case and no independent intervening cause being indicated or disclosed, but, on the contrary, such a cause being distinctly negatived, we do not think that it is abso*835lutely required that the petition should state as its conclusion either that such cause was proximate or that such result reasonably and naturally followed. From the facts stated, this is but a conclusion, and from the facts stated, if proved, it would become a question for the jury. 8 A. & E.- Enc. of Law (2d ed.), 581, § 7.

Learned counsel for the defendant base much of their able argument upon the ruling made by this court in Goddard v. Watters, 14 Ga. App. 722 (82 S. E. 304). In that ease there was no contemporaneous physical injury, and it appears that the ruling there made was not based upon the theory that the subsequent physical injury could not have followed as the direct and natural result of the alleged nervous shock, but the decision, as well as the dissenting opinion, appears to have been arrived at upon the theory that the petition failed to show a wilful or wanton intent on the part of defendant to injure the plaintiff. It is not our understanding of the rule adopted in this State that wilfulness or wantonness is a necessary element of negligence in order to enable one to recover damages either where the fright is accompanied with actual physical injury or where it is followed by physical or mental impairment as a direct, natural, and probable consequence. Wilfulness and wantonness is a necessary element where it is sought to recover for mere fright or mental suffering alone, and it may be true that it would authorize a recovery where the impairment actually resulted, but does not naturally follow as a usual, probable consequence. We are therefore unable to follow in their entirety the pronouncements made by this court in the case referred to, although in most respects the law as there laid down is clearly and aptly stated. See a comprehensive treatment of the entire subject-matter in a note to that case as reported in 7 Negligence and Compensation Cases Annotated, 1.

Judgment affirmed.

Stephens and Smith, JJ., concur.