115 Mo. App. 566 | Mo. Ct. App. | 1906
— The plaintiff’s, canse of action consists of two counts: The first is for assault and battery; the second alleges that defendant, willfully, and maliciously, annoyed, worried, and disturbed plaintiff by loud noises, by screaming, by beating on tin pans, fences and iron, in consequence of which she was made nervous, and her health was so affected that she could not sucessfully carry on her business of hand-painting and wood-carving. Plaintiff recovered judgment on the first count for $300 and the second for $200, from which defendant appealed.
Plaintiff and defendant lived on adjoining premises in the town of Hamilton, Missouri. Both were engaged in breeding and raising chickens on their respective premises. The plaintiff was also engaged in the business of hand-painting and wood-carving. The fence separating the premises of the parties proved insufficient to prevent the fowls of the parties from escaping from the grounds of the owners and the mingling of the different flocks. This, in time, as a matter of course, created antagonism between the two women. Finally, one day, the plaintiff chased and caught a chicken on her grounds, whereupon the defendant appeared on the scene and trouble resulted. Plaintiff’s evidence tended to show that defendant assaulted her and struck her on the head under the ear, which permanently injured her hearing. Defendant’s evidence tends to show that plaintiff was the aggressor and assaulted defendant. Plaintiff’s evidence also tended to prove that the defendant, in a spirit of maliciousness, created many and divers noises for the purpose of annoying plaintiff and that they had the effect to annoy and make her nervous to such an extent that she could not successfully carry on her business of hand-painting and wood-carving, which required a steady hand and concentration of the mind, and which also had the effect of injuring her health.
Defendant’s first contention is that she had the right to pursue and use all force reasonably necessary
The defendant’s chicken strayed upon plaintiff’s premises; she caught it, and, while she was holding it, according to plaintiff’s evidence, she said, “I want my chicken,” and struck plaintiff on the head. In so doing, she committed a breach of the peace, which the law does not justify. And the instruction asked by the defendant and refused by the court, to the effect that she might use “all force and means necessary to recapture her chicken, short of such as she knew would endanger the life of the plaintiff,” etc., was properly refused. The rule of the law that the owner may use all reasonable force to defend the possession of his property has no application. For, in the defense of one’s property, the law is very indulgent, and permits, at least, the use of all reasonable force to repel the aggressor.
The defendant contends that plaintiff’s second count does not contain a cause of action. In Deming v. Railway, 80 Mo. App. 152, it is held; “A passenger carried by his station and put off in the darkness cannot recover damages for mental suffering and fright unless such mental anguish is connected with a contemporaneous physical injury, and mere sickness resulting from fright, worry and overtaxation of strength after leaving the train will not justify a recovery of damages for mental suffering.” It seems the principle is well established in this State. [Trigg v. Railway, 74 Mo. 147; Strange v. Railway, 61 Mo. App. 586; Connell v. Telegraph Co., 116 Mo. 34.] In the latter case, the court holds that: “Damages cannot be recovered of a telegraph company for mental suffering and pain caused by its neglect to transmit and deliver a social message promptly, although it is informed by its contents that great mental suffering and pain will naturally result from its failure to do so.”
There are, however, many cases where there is no personal impact, but fright caused by negligence resulting in physical injury, a recovery is warranted on the ground that the injury is the proximate result of the negligence. [Mitchell v. Railway Co., 77 Hun (New York) 607; Purcell v. Railway, 49 Minn. 134; Fitzpatrick v. Railway, U. C. Q. B. 645; Hill v. Kimball, 76 Texas 210; Barbee v. Reese, 60 Miss. 906; Consul Stutz v. Railroad, 73 Wis. 147; Railroad v. Latimer, 128 Ill. 163; Oliver v. LaValle, 36 Wis. 592.] In Purcell v. Railroad, supra, the court said: “On the argument, there was
; The Missouri rule, as we have seen, is that,, where there has been no bodily impact, no damages are recoverable for mental anguish, but such damages are recoverable for injuries received in connection with such impact. There can be no good reason for the distinction. It is merely arbitrary. For illustration: Through the negligence of the carrier, its coaches are derailed and A, a female, suffers the loss of her little finger in consequence. She experiences both bodily pain and mental anguish, for both of which she may recover. B, also a female, who suffers no bodily injury, yet the shock to her mind is so great that she is made seriously sick so that it becomes necessary to take her to a hospital for a long time to be nursed and doctored at much expense, until she recovers, for Avhich, under the rule, she is not entitled to damages. The only plausible reason, if it can be a reason, for the distinction is that found in EAving v. Railway, supra, “That the scope of Avhat are known as accident cases will be very greatly enlarged for in every case of a collision on a railroad, the passengers, although they may have sustained no bodily harm, will have a cause of action against the company for fright to which they have been subjected. This is a step beyond any decision of any legal court of which we have knowledge.” We can appreciate the ruling in Johnson v. Wells, Fargo & Co., supra, which holds that there can be no recovery in either instance, because of mental distress, for the rea
And there is another distinction made that a party may recover, where “the injury is accompanied 'by circumstances of malice, insult, or inhumanity.” [Deming v. Railway, supra; Trigg v. Railroad, supra.] It is not within our province to overrule these cases: and we might, perhaps with safety, sustain plaintiff’s right to recover upon their authority, because the defendant’s acts were characterized by insult and malice, but we prefer to place our holding on the broader grounds of rightful justice, based upon consistent reasons. That no recovery should be had for mere mental anguish, not resulting in physical injury, including mental impairment, would be the proper rule in all case, regardless of the fact whether such mental anguish was, or was not connected with bodily injury. And why, as the mental anguish might be as great in one instance as the other, there is made a distinction is beyond comprehension.
We have been speaking of cases arising out of negligence and breach of contract. This case does not rest on the law governing breach of contract or negligence. The charge of the petition is that defendant’s conduct was spiteful and revengeful, wrongful and malicious, and perpetrated for the purpose of annoying plaintiff, which resulted in preventing her from attending to her business, harmfully affected her nerves, and injured her health. Plaintiff does not seek to recover for mental anguish but for injury to her health and business. The action is based upon willful and malicious trespass, which, under our criminal statute, constituted a breach of the peace and therefore unlawful. And we can see no good reason why the holding in Purcell v. Railroad, supra, does not apply, as the injury was a physical injury.
The conduct of the defendant also partook of the
We believe the case can be sustained upon the -ground that the acts complained of amount in law to a private nuisance as well as that they constitute a willful and unlawful trespass. Affirmed.