*1 Richmond Toy Hughes E. v. Sue Etta Moore. 11, 1973.
June Record No. 8100.
Present, All the Justices. t Charles B. Francis II; W. Flannagan, Flannagan Woodward, Miles ( brief), on Flannagan, error. Glen M. for defendant Williams, in error.
I'Anson, delivered the the court. J., Moore, recover
Plaintiff, Sue Etta action to per- brought and shock sustained sonal consequence E. defendant, when an automobile driven Hughes, Toy *2 in crashed into the A trial resulted front of her home. porch jury was a verdict for the $12,000. for the sum of Judgment plaintiff entered on of the and defendant here a writ error. verdict, on can be no that there (1) contends
Defendant personal of the absence caused in contemporaneous physi- negligently the odor of alco- that of (2) the contact with testimony cal person; evidence; (3) in admitted was breath on defendant’s improperly hol a mistrial because Ins sustained motions should have the court that witnesses in and certain of testimony given by prejudicial improper insufficient the evidence was the that (4) of jury; presence was excessive. the verdict verdict; that support jury’s 11:30 on that about evidence shows The May p.m., near a his automobile was defendant while along highway operating road, car off he ran the Charles, Lee St. Virginia, County, home, of in the struck an automobile driveway plaintiff’s parked feet was set back crashed the house which into approximately from highway. found who accident State pressure trooper investigated a distance of skid made defendant’s car marks approx- extending feet on and off highway
imately paved portion her across with house. plaintiff’s property point a her between the Plaintiff was house doorway standing when room, window, kitchen and living looking through picture she heard a noise and of defendant’s car saw shining headlights her car of the into room. The crashed into the front living porch house, and after the car forth initial collision the moved back and several times. she her Plaintiff said that “froze in against porch tracks” thereafter and screamed. she became weak Immediately felt as if her under became fold her. She legs going very nervous, could and had in her chest night, sleep pains arms as the result of the collision. she received no Although physical without, from she could not breast-feed her three-month-old injury milk, lack of and her started. menstrual baby period Gabriel, Plaintiff Dr. Daniel consulted P. her family physician, on 1970. Dr. Gabriel testified that was nerv- May highly ous. She was unable to breast-feed her and the child was baby put aon bottle. Her menstrual had not normal period begun, child, her and the flow for mother nursing during period breasts.” her was He hormones for excessive. “diminishing prescribed worsened, He her nervousness treated for several weeks but Nelson, referred and he her to Dr. Pearce psychiatrist. reaction, with condition “anxiety Nelson
Dr. diagnosed was He testified she physical experiencing hysteria.” phobia con- and that her disturbance the emotional her body pain real, and serious dition pain problem. presented several over After “not period treating plaintiff imaginary.” if but that he said her months, happened anything good prognosis return her she would previous emotionally upset that there He condition. and nervous definitely the automobile connection” between “causal was a striking plaintiff’s emotional and condition. and her home accident, trial, two after Plaintiff testified at nearly years had she was still nervous. She her condition but very improved *3 Her take medication Dr. Nelson. prescribed by continuing than were still bust smaller menstrual irregular periods was in struck her home she its size. Before automobile normal mental condition. good physical an He said testified that his was 25 miles hour.
Defendant speed swerve him, a woman ran across the road in front of him to causing his car and lose control it. He denied that he left the skid marks a brother, His who was testified state passenger trooper. car, in the corroborated testimony.
Defendant,
counsel,
that under
law there can be
Virginia
says
or
disturbances
no
mental
emotional
negligently
willful,
unless
in cases not
wanton or vindictive
involving
wrong,
there has been a
Thus
contemporaneous physical injury
person.
he
is based on
and there was
that since this action
argues
willful,
no
no
wanton or vin-
physical
plaintiff,
impact upon
committed,
cannot recover in this
dictive wrong
plaintiff
159 Va.
case. In
of his
he relies on Bowles v. May,
position
support
419, 433,
Moore
(1932);
Inc.,
Hospital,
S.E.
Jefferson
v. United
(1967);
States,
Va.
In Bowles the that defendant’s remarks claimed threatening and emotion- her to become nervous gestures extremely which She suffered a stroke of ally upset. subsequently paralysis claimed was related she to the defendant’s threats. In causally course of the this court said: opinion
“.
.
there
. .
.
.
can be no
for mental
[I]n Virginia
anguish
suffering resulting
negligence unaccompanied
159 Va. at
by contemporaneous physical injuries
person.”
433,
“It
is now
fact
or a
well
that terror
severe mental
accepted
shock
be the direct and
cause of wreck to the
may
proximate
nervous
of which
be a visible
system,
consequence
may
When such
a willful,
is due to
wanton and vindic-
injury.
fright
tive
is
wrong, recovery
generally permitted, notwithstanding
fact that there is no
. . . .”
from without
contemporaneous injury
“This
While
success
class which
not favored.
falls within
possible
actions should not
bar
or
groundless
unrighteous
nevertheless, because of the fact that
case,
meritorious
detection, the court
be so
without
shock
easily feigned
ain
doubtful case. The
should
should allow recovery
evidence,
clear and
(1)
convincing
prove
required
act, a chain of unbroken
commission
wrongful
between the
act and the
causal connection
injury.”
alleged
In plaintiff, reversing judgment facts, and held case is its that the each own particular governed by *4 that there was a causal connection did not evidence support finding words and stroke. between alleged insulting that an in a motion for Moore, We held in supra, allegation judg- willful, wanton and acts terror or ment vindictive causing charging caused suffi- shock which to mental proximately injury tort, the fact that there an intentional ciently alleged notwithstanding contact, erred in was no and that the trial court sustaining physical 441, a demurrer 158 to motion for 208 Va. S.E.2d judgment. at 127. and Ferrell construed Bowles to mean that there can be
Soldinger mental recovery anguish negli- suffering to the gence unaccompanied by contemporaneous physical willful, absent wanton and vindictive person wrong. hand,
On other in Penick v. Mirro, (E.D.Va. F.Supp. 1960), Bowles was construed to mean it is not to the necessary creation of to reimbursement for caused mental right negligently or disturbance, emotional even when wanton, the act is not or willful that there be actual of the tortfeasant instrument impact upon The court said that plaintiff’s body. important question whether the was of substance and identifiable in “damage” sufficiently of the claimant. It further observed that recovery Bowles was denied on the basis of the solely insufficiency evidence to establish on the of the defendant. any wrongdoing part clear, Bowles is not and it is
Admittedly subject conflicting But from consideration of all constructions. that was said in Bowles construed to mean that there can it be for a negli- emotional disturbance and its con- gently physical to the person, unaccompanied sequences by contemporaneous physical willful, wanton absent or vindictive it is injury, wrong, provided clear and evidence that a alleged proved convincing wrongful act was committed and that there was an unbroken connec- causal tion between the act and the alleged physical injury. Since Bowles there have been trends and significant developments
in the law rule” which were not referred to relating in the briefs of the Thus in order to the rule in Vir- parties. clarify we deem it to consider the of the rule, ginia, reasons important origin therefor, and its status in other present jurisdictions dealing with the issue.1 decision landmark of Victorian Railways Commissioners v. Coultas, 1888), has been cited as the App.Cas. (Eng. leading case for the that there can be no proposition results of mental without There for dam- anguish impact.2 nervous age system oncoming train was denied that: upon ground Annot., 1. See to recover “Right emotional disturbance or its conse- quences, impact wrong.” the absence of or other actionable A.L.R.2d 2. rule was abandoned 13 Sons, later in Dulieu v. White & years 2 K.B. 669, Daley 681. LaCroix, But see also Mich. 6 at fn. 179 N.W.2d (1970), fn. 6 at 393 where said that the dubious distinction accorded Victorian Railways Commissioners v. Coultas as to the requirement open ques tion, in view of especially certain statements in that For the nemesis opinion. Railways Victorian Commissioners be, (3rd Prosser, has proven Ed.), p. see Torts 350, fn. *5 mere sudden terror “Damages arising unaccompanied by any a mental shock, actual but nervous or occasioning injury, cannot think, under be circumstances, such their con- Lordships which, sidered a course of ordinary consequence things, would flow from the If it were negligence gate-keeper. can, held that it would be to their that they appears Lordships that for much what lia- extending liability beyond negligence has been held Not in such case hitherto to be. bility only but in case where an accident present, every negli- had shock, serious nervous there be gence given might claim for on account of mental injury. difficulty which now in case of de- often exists of alleged physical injuries whether act would termining they negligent be claims.” increased, and a wide field greatly imaginary opened Cas. at 225-26. App. the rule before in this views country crystallized Divergent 2.3 fn. in Dulieu White Sons, supra, abandoned England (1896), N.Y. Co., 151 45 N.E. Ry. v. Rochester Mitchell rule.” American became the authority adopting leading said: New York Court There the Appeals action, it is cannot the basis of an form “Assuming there- no can be had obvious injuries blindness, disease, That the result nervous from. insanity, These no or even changes principle. miscarriage, way of the or the extent results show degree fright, merely damages. concession would of the
“Therefore
result
logical
respondent’s
mere
can be had for
be,
seem to
fright,
only
the direct
are
had
but also that none can be
for injuries
conclu-
lead
. . . These considerations
it.
consequences
sustained
that no
can be had for
sion
by fright
no immedi-
another, where there is
occasioned
109-10,
at
45 N.E.
354-55.
ate
N.Y.
injury.”
personal
v. State,
in Battalla
the New York Court of
Significantly,
Appeals,
(1961), ex
N.E.2d 729
N.Y.2d
N.Y.Supp.2d
that:
decision,
overruled its Mitchell
saying
pressly
Smith,
Liability
and Disease: Legal
See
“Relation of Emotions to Injury
Stimuli,”
30 Va.
Psychic
Rev. 193
L.
“Before
to a résumé of the
evolution
doctrine in
*6
passing
State,
to note that it has been
it is well
thoroughly repudiated
it,
courts which initiated
English
rejected
majority
American
abandoned
jurisdictions,
by many
originally
it,
diluted,
and
numerous
mi-
adopted
through
exceptions,
Moreover,
which retained it.
it is the
of scholars
nority
that the
an action should be enforced.” 10 N.Y.2d
right
bring
239,
36,
at
219
at
A of courts have or not rapidly increasing majority repudiated followed the rule” for the reasons early difficulty back had been minimized tracing resulting injury through fright the advance of medical science; of fraud should possibility not those with claims from cases; their prevent legitimate proving and that courts should not shirk their because of the duty merely of an increase in which has to be a not possibility litigation, proved Robb fact. See v. 454, Railroad 58 Pennsylvania 210 Company, Del. A.2d 709 Falzone (1965); Busch, 559, v. 45 A.2d 12 (1965); 214 N.J. 182, Trent v. Tenn. 409, 55 S.W.2d Barrows, (1965); 397 411 App. Savard v. 405, Cody Chevrolet, Inc., 126 Vt. 234 A.2d (1967); 656 Okrina 400, 165 v. Midwestern 282 Minn. N.W.2d (1969); 259 Corp., v. 401, Niederman Pa. A.2d Brodsky, 436 261 v. (1970); 84 Daley LaCroix, supra; 156, 169-74, 52 State, v. Haw. P.2d Rodrigues 509, 518-20 (1970). eminent scholars considered the and have rule are
Many virtually unanimous in it as condemning unjust experience contrary logic.4 (3rd § Prosser, supra, 1964), 55, 349-52; See James, Torts § Ed. at Harper Torts, 18.4, (1956); Smith, Law of at 1031-39 “Relation of Emotions to Injury McNiece, Stimuli,” supra; Disease: Legal Liability Psychic “Psychic Injury consid reveals that total have
Our research jurisdictions at have either the rule. Of these least 25 ered rejected completely Since or abandoned it unsound. being every jurisdiction issue, considered the Court of Wash which has except Supreme 652, 80 Wash.2d in the case of Schurk Christensen, ington either the rule or refused has abandoned P.2d 937 (1972), adopt fn. 261 A.2d Niederman v. 436 Pa. at Brodsky, See supra, it. cases after above. and those decided cited fn.l, Niederman, comment, Contact,” Without also Clev. See Fright “Injuries 331, 337 (1966). Mar.L.Rev. the reasons for of Bowles,
Based on a close believing scrutiny rule our existence of the are not we logical, today clarify impact that where conduct is We adhere view rule. negligent, merely wanton, or willful, vindictive, lacking, *7 hold, for there be no emotional disturbance alone. We can recovery that the claim is disturbance and however, where for emotional physi- therefrom, there be cal for resulting may negligent injury the the lack of conduct, notwithstanding physical impact, provided clear injured pleads proves convincing properly by party or his was the natural result of evidence that injury fright other caused the defendant’s In shock by proximately negligence. if, if, in such a case but there is words, there only of causal shown a clear unbroken chain connection between disturbance, and act, the emotional negligent physical injury. course, familiar rule, is to limitations. subject standard of conduct measured A defendant’s by generally of a normal knowl- reaction to be Absent expected person. specific a defendant of a unusual there should sensitivity, edge by be no or emotional disturbance consequent to a where a normal individual physical injury hypersensitive person Prosser, would affected under the See not be circumstances. supra, § § 2 55, 352; 18.4, at Restatement 1035; James, supra, Harper § 313, c (Second), of Torts comment at 114. the rule are not that
Under
we
today
adopted
saying
plaintiff,
in-
in an action
recover
negligence, may
shock
witnessing injury
juries
another,
fright
by
a defendant toward
occasioned
allegedly
by
York,”
1,
(1949); Green,
New
L.Rev.
“Fright
Tort
in
24
31
Liability
St.Johns
(1933); Throckmorton,
supra.
Cases,”
for Fright,”
27 Ill.L.Rev. 761
“Damages
rule”
was
case to reconsider
stated Schurk
not
5.
majority
proper
it
in a
case.
but it
not
that would not reconsider the rule
deciding
proper
was
a third
or caused
to a third
person,
by seeing
resulting injury
after
has
See
it
been inflicted
through
negligence.
v.
471,
(1968);
v.
108 N.H.
A.2d 728
Waube
Jelley
LaFlame,
603, 612-13,
Schurk v.
(1935);
216 Wis.
The evidence was admissible on the issue of defendant’s negligence *8 in the his automobile. v. Va. Prestage, operation Jackson 481, 483-84, 132 S.E.2d 504 (1963).
doWe not with defendant’s that certain contention statements agree to defendant’s case were made the the prejudicial presence and the court should have sustained his motions for a mistrial. jury The record shows that most of the evidence of was complained The cumulative. trial court sustained all the hearsay objections to the of and told the it. testimony complained jury disregard None of the of was so to defendant’s testimony complained prejudicial case that mistrial would have been justified.
Nor do we with defendant’s contention that there agree evidence of his on because evidence did not negligence part show how and the accident The evidence was suffi- why happened.
cient to warrant a that the defendant was by finding jury guilty which was a cause of the accident. proximate defendant that the verdict was excessive.
Finally, argues jury’s rule or standard fixed can be is no There by The amount to be for mental measured suffering. for the to determine in view of is awarded jury question largely of each case. Unless the and circumstances facts particular as to is so excessive shock conscience of the award amount that the was influenced court, and to create impression jury by will not be the verdict disturbed jury partiality prejudice, 196, 204, Va. Williams Paving Company Kreidl, us. S.E.2d amount for the cannot that the awarded
We injuries say was excessive. sustained fixed as this case the burden
Since the law of proof prepond- evidence, suf- evidence shows erance of result of emotional distress as a fered proximately conduct, the judgment negligent
Affirmed. Harrison, J., dissenting. nor as we have rule
I neither would modify abrogate case demonstrates construed and it. The instant heretofore applied its wisdom. of an automobile sight frightened upset
Appellee com- later she consulted her Three accident. family physician days not He did other conditions. of nervousness and apparently plaining had so for three months as abnormal these conditions elapsed regard doctor hormones her last since the birth of prescribed baby. “I too much at time. He said: did not think and phenobarbital. us.” she con- However, when have incidents We all little upset he that she visit recommended tinued to psychiatrist. upset her reaction”. The “anxiety diagnosed problem psychiatrist He trans- was a sedative and treatment psychotherapy. prescribed his office with her”. lated the latter mean “talking Appellee He “for continued on occasions. said five activity prognosis course she has unless of she should be good doing things doing He said “outside” stir her also some that will other up again”. thing she had known an he would have of what told him appellee *9 or what caused it. emotional problem, rule, relaxed I do not consider the majority’s Applying sufficient to show that diminish- evidence physicians appellee’s of her menstrual breasts and the were the ing resumption period she natural result or shock that on the experienced night accident. The established distress emotional testimony only was not following frightening experience. Appellee hospitalized, $12,000. $112, totaled and her medical bills only I would reverse.