Plaintiff brought this action in the trial court for damages claiming extreme and prolonged anguish, pain and a resulting heart condition allegedly caused by defendant’s willful, fraudulent, and wanton acts concerning the disposition of plaintiff’s deceased son’s body.
Prior to his death plaintiff’s son entered into certain agreements with the University of Michigan Medical School to donate his body for research. It was his desire that the body be transported to the university at Ann Arbor by ambulance. This fact was allegedly made known to the plaintiff, to the defendant, and to the DeLong Ambulance Service. Contrary to those wishes, the body was shipped by train in spite of the plaintiff’s direct request to use an ambulance and, in fact, in spite of the plaintiff’s request to get the body off the train after plaintiff discovered the body was being shipped by train. Plaintiff was unable to locate her son’s body for almost three days, which she alleges caused the mental and physical disabilities which formed the basis of her action.
The defendant filed a motion for summary judgment which was granted; the trial court also denied the plaintiff’s motion for rehearing from which the plaintiff appeals.
*667 The single issue here is: Can the plaintiff recover for injuries produced by emotional distress proximately caused by defendant’s negligence without accompanying physical impact?
Recovery for mental disturbance caused by a defendant’s negligence but without accompanying physical injury or physical consequences or any independent basis for tort liability has been for years generally denied in Michigan.
Nelson
v.
Crawford
(1899),
This long-standing rule, however, has been recently overruled by the Michigan Supreme Court in
Daley
v.
LaCroix
(1970),
“We conclude that the ‘impact’ requirement of the common law should not have a continuing effect in Michigan and we therefore overrule the principle to the contrary contained in our previous cases.
“We hold that where a definite and objective physical injury is produced as a result of emotional distress proximately caused by defendant’s negligent conduct, the plaintiff in a properly pleaded and proved action may recover in damages for such physical consequences to himself notwithstanding the absence of any physical impact upon plaintiff at the time of the mental shock.”
It remains then to determine whether or not the
Daley
case is to be applied prospectively or retrospectively. In that regard the Supreme Court stated in
Daley
(p 14): “[W]e are persuaded to hold
*668
that the new rule applies to all pending and future cases as in
Bricker
v.
Green
(1946),
“This does not limit the applicability of this decision to cases in which the cause of action accrues after the date of filing this decision, but includes all cases in which trial or appeal occurs after that date.”
We hold that this is a pending appeal within the meaning expressed by the Supreme Court and adopt the retrospective application rule as stated.
We reverse the trial court’s summary judgment, requiring a hearing on the merits, and remand this matter to the trial court for action not inconsistent with this opinion and in accordance with the decision of the Supreme Court in the Daley case.
No costs to either party, a settled rule of law having been overturned by the Supreme Court.