Francis H. (Francis Hermann) Bohlen.

Cases on the law of torts (Volume 1) online

. (page 32 of 124)
Font size
QR-code for this ebook

sation of it to an assembled mob might, under particular circum-
stances, very naturally produce that result, and a compensation
might be given for an act occurring as a consequene of an accusa-
tion of that crime.

I think the judgment of the Court of Exchequer Chamber
should be reversed.

Judgment reversed.



'The majority of the Law Lords held that the declaration showed no
cause of action since the loss of the husband's consortium was not the na-
tural result of a normal husband's belief in such an accusation against his
wife, but was rather due to some personal "idiosyncrasy," p. 592, in tlic par-
ticular husband which led him to take this unreasonable and unjustifiable step.



i^



2l8 BUCKNAM V. GREAT NORTHERN RAILWAY CO.



BUCKNAM V. GREAT NORTHERN RAILWAY CO.

Supreme Court of Minnesota, 1899. "6 Minn. 37^.

Buck, J. This action comes to this court upon an appeal from
an order sustaining- defendant's demurrer to the complaint. The
plaintiff alleges in her complaint : That at Crookston, on the evening
of October 10, 1898, she, with her husband and their little child,
went to the defendant's railroad station to meet the plaintiff's sister,
whose arrival she then expected over one of defendant's roads. At
this station the plaintiff' and her husband entered one of the de-
fendant's waiting rooms, and while there quietly seated, and prop-
erly behaving themselves, the defendant, by and through its agents
and servants in charge of said station and waiting rooms, supposing
that plaintiff's husband was not in fact her husband, and within the
line and scope of their powers and duties, wrongfully and unlaw-
fully charged plaintiff's husband with not being the husband of
this plaintiff, and then and there ordered plaintiff's said husband to
leave this plaintiff, and not to occupy the same room of said depot
building with this plaintiff, and then used harsh, violent, and abusive
language, and made threatening and insulting demands of and
towards plaintiff's husband, in her presence, in demanding him to
leave this plaintiff and said room, whereby she suffered a nervous
shock, and became faint, sick, and helpless, which said illness con-
tinued for a period of one week, during which time the plaintiff's
nervous system was violently agitated and deranged, whereby she
suffered great pain and sickness. She further alleges in her com-
plaint that she and her husband were rightfully in said depot build-
ing, and were properly conducting themselves, and that by reason
of said wrongful acts of defendant she was damaged in the sum of
$500.

Of course, the demurrer admits the material facts alleged in the
complaint ; but the question is, do all the facts stated constitute a
cause of action? It is not claimed that the action is one in slander,
and we need not discuss that view of the case. Nor does plaintiff
allege the acts to have been an assault and battery. She merely
alleges that the acts were wrongful and unlawful. It was not an
attempt to commit assault and battery either upon her or her hus-
band ; for there was not the slightest effort to apply the least actual
force to either, directly or indirectly. Nor does it appear that the
servant was in close proximity to either husband or wife when he
used the language alleged. And threats to commit an injury are
not actionable private wrongs, nor do words constitute an assault.
Cooley, Torts (2d Ed.) 29. But, if it were otherwise, the threats
here alleged were not made against plaintiff, but her husband, and
she would have no cause of action thereby.

The question raised is, does abusive, violent, and threatening
language used to a licensee by the servant of the railroad company
create a cause of action in behalf of the wife of such licensee, who
merely hears such language, and thereby becomes nervous and sick?



BUCKNAM V. GREAT NORTHERN RAILWAY CO. 219

The language was not addressed to her. It was not alleged that she
had induced the person supposed not to be her husband to come
into, or remain in, the ladies' waiting room. She was not accused
or charged with any wrongdoing, nor were any threats made against
her personally. If the plaintiff sustained a nervous shock and be-
came sick by reason of the language used to her husband, she must
have been peculiarly sensitive to such language ; but, in the prac-
tical workings of everyday life, people have a right to assume that
others are of ordinary physical and mental strength, and not specially
nervous or emotional, and liable to be made sick by language not
addressed to them, but to other persons.

Many vexatious, annoying, and humiliating things frequently
occur in every community that are not actionable. Such things
may affect those peculiarly sensitive, while to others they would
seem only a matter of indifference. The latter, tmaffected thereby,
could not maintain an action for a personal wrong; aild, if the for-
mer should be permitted to do so, we should have htigated a ques-
tion of comparative nervousness and sensitiveness as an element of
damages, and the courts burdened with vexatious litigation where
there was neither slander, physical injury, negligence, nor intent to
injure or frighten a third person, and where the defendant might
be entirely unaware of the physical condition of the person so al-
leged to be injured. There may have been cases, in actions of tort,
where substantial damages have been recovered for mental suffer-
ing, — as cases of assault without battery, false imprisonment where
there was no physical contact, breach of promise of marriage, and
seduction, where a parent brings the action ; but, as was said in
Larson v. Chase, 47 Minn. 307, at page 311 :

"For the law to furnish redress, there must be an act which,
under the circumstances, is wrongful ; and it must take effect upon
the person, the property, or some other legal interest of the party
complaining. Neither one without the other is sufficient. This is
but another way of saying that no action for damages will lie for
an act which, though wrongful, infringed no legal right of the
plaintiff, although it may have caused him mental suffering."

For the servant in this case to use abusive language to the hus-
band of plaintiff was not any infraction of her legal right, and
hence not a legal wrong to her.

Counsel, in his argument, does not make any point that the lan-
guage used was actionable because it was used towards her hus-
band as such, but assumes the broad ground that, where a railway
company is charged with the duty of maintaining a quiet and or-
derly waiting room, it is actionable for one of its emplovees to use
violent, abusive, and insulting language to a third person in the
presence of a female occupant, when such language and threats
naturally tend to, and actually do, frighten such occupant, from
the effects of which she became ill. This assumes that the threats
and abusive language used to other persons were the proximate
cause of the sickness and mental suff'ering. Damages sustained
by a wrongful act must be the natural result of that act : that is,



220 BUCKNAM 7'. GREAT NORTHERN RAILWAY CO.

it must be the proximate cause. Within these rules, the language
oi' the defendant's -s«4:^ailt to a third person was not the proximate
cause of her sickness. She apprehended no danger to herself; at
least she could not reasonably do so. She was not in any place of
peril. If an action of this kind can be maintained, we do not see
why nervous and sensitive persons present at a riot or public dis-
turbance cannot have a cause of action, if thereby they become
nervous and sick, or suffer mentally, even if they do not receive
bodily injury. It is evident from the plaintiff's complaint that her
only injury proceeded from fright and nervous excitement and dis-
tress, and, as the injury was not the natural or proximate resUttrof
the act complained of. the order appealed from should b^ ^a ffirmed.
There is nothing in the case of Purcell v. St. Paul City Ry. Co.,
48 Minn. 134, 50 N. W. 1034, cited by the appellant, which contra-
venes the views herein expressed. There the injured party, plain-
tiff, was a passenger on a street-railway car, and by its negligence
the company placed plaintiff in a place of great peril, and fear of
death or great bodily injury, causing such a shock that she was
thrown into violent convulsions and subsequent illness. That case
is not analogous to this.
Order affirmed.'^

^Accord: Phillipps v. Dickerson, 85, 111. 11 (1877), violent assault on
third party in ignorance of plaintiff's proximity and advanced pregnancy;
Haas V. Mete, 78, 111. App. 46 {1898), hysteria caused by angry questions
about canning peaches; Braiin v. Craven, 175 111. 401 (1898), plaintiff seated
with back to door startled by defendant entering noiselessly and speaking to
her suddenly and violently — "It could not have been reasonably anticipated that
any injury therefrom could reasonably have resulted", Phillips, J., p. 420.
C. C. & St. L. R. R. V. Stewart, 24 Ind. App. 374 (1899), a mother frightened
at the peril to which the defendant's negligence exposed her daughter ; Sperier
V. Ott, 116 La. 1087 (1906), illness caused by wrongful arrest of young chil-
dren; Mahoiiey v. Dankzvart, 108 Iowa, 321 (1899); anxiety for safety of
mother exposed to defendant's negligent blasting; IVyman v. Leavitt, 71 Me.
227 (1880), fright at peril of children, due to defendant's blasting, not recover-
able as special damage in action of trespass for invasion of land by stones
thrown thereby upon it; Nelson v. Craivford, 122 Mich. 466 (1899), defendant
dressing up as a woman "to have a little fun" frightened pregnant woman
and caused miscarriage; Sanderson v. R. R., 88 INIinn. 162 ('1902'), injuries
due to fright at unlawful attempt to remove plaintift''s children from train;
Renner v. Canfield, 36 Minn. 90 (1886), plaintiff, frightened by shot fired at
dog, miscarries; Fox v. Borkey, 126 Pa. 164 (1889), plaintiff, frightened by
blasting; R. R. v. Barry, 98 Tex. 248 (1904). pregnant woman, frightened
by wrongful flooding of husband's premises, miscarries; Smith v. Johnson &
Co. (unreported) citing Didieu v. White & Sons, L. R. 1901, 2 K. B. 669, p. 675.
man made ill by seeing another killed. See also, Allen, J., & Holmes, C. J.,
Spade V. R. R., 168 Mass. 28-, p. 289 nnd 172 Mass. 488, p. 491. See 41 Am.
Law Reg. N. S. p. 168, n. 63— but cf. Gulf. Etc. R. R. v. Coopivood, 96 S. W.
(Tex. Civil App. 1906), 103; 16 Tex. Ct. Rep. 354, where a mother recovered
damages for the mental distress and anxiety caused her by the trainmen's
failure to render her the assistance necessary to remove her desperately ill
daughter from the train; and Spearman v. McCrary, 58 So. 927 (Ala. 1912),
a mother recovered damages for injuries due to fright caused by witnessing
the danger to which her children were negligentlv subjected. In Yates v.
So. Kirby Collieries etc., L. R. 1910, 2 K. B. 538. a master was held liabl ?
for neurasthenia caused by the shock of witnessing the shocking injuries of
a fellow workman, under the Workmen's Compensation Act of 1906 which
eliminates fault as a basis of liability. In Gillespie v. R. R.. 178 N. Y. 347, it
was held that a railway owes to its passengers a duty to carry them not merely




WILKINSON V. DUWNTON 221

WILKINSON V. DOWNTON.

In the Queen's Bench Division, 1897. L. R. 2 Q. B., 57.

Case came up for furtlier consideration before Wright, J.,
after a trial by jury and verdict for j)laintiff : assessing the expense
of railway fares at i^. loy^d. and damages for the injury caused by
the nervous shock at loo/.

Wright, J. In this case the defendant, in the execution of
what he seems to have regarded as a practical joke, represented
to the plaintiff that he was charged by her husband with a message
to her to the effect that her husband was smashed up in an accident,
and was lying at The Elms at Leytonstone with both legs broken,
and that she was to go at once in a cab with two pillows to fetch
him home. All this was false. The effect of the statement on the
plaintiff' was a violent shock to her nervous system, producing vom-
iting and other more serious and permanent physical consequences
at one time threatening her reason, and entailing weeks of suffering
and incapacity to her as well as expense to her husband for medical
attendance. These consequences were not in any way the result of
previous ill-health or weakness of constitution ; nor was there any
evidence of predisposition to nervous shock or any other idiosyn-
crasy.* * *

As to this IS. loyzd. expended in railway fares on the faith of
the defendant's statement. I think the case is clearly within the
decision in Pasley v. Freeman (1789), 3 T. R. 51. The statement
was a misrepresentation intended to be acted on to the damage of
the plaintiff.

The real question is as to the 100/., the greatest part of which
is given as compensation for the female plaintiff's illness and suf-
fering. It was argued for her that she is entitled to recover this as
being damage caused by fraud, and therefore within the doctrine
established by Pasley v. Freeman (1789), 3 T. R. 51, and Langridge
V. Levy (1837), 2 AI. & W. 519. I am not sure that this would not
be an extension of that doctrine, the real ground of which appears
to be that a person who makes a false statement intended to be acted
on must make good the damage naturally resulting from its being
acted on. Here there is no injuria of that kind. I think, however,
that the verdict may be supported upon another ground. The de-
fendant has, as I assume for the moment, wilfully done an act cal-
culated to cause physical harm to the plaintiff' — that is to sav, to
infringe her legal right to personal safety, and has in fact thereby
caused physical harm to her. That proposition without more ap-
pears to me to state a good cause of action, there being no justifica-
tion alleged for the act. This wilful injuria is in law malicious,
although no malicious purpose to cause the harm which was caused
nor any motive of spite is imputed to the defendant.

It remains to consider whether the assumptions involved in the
proposition are made out. One question is whether the defendant's
act was so plainly calculated to produce some effect of the kind
which was produced that an intention to produce it ought to be im-

safely but courteou.sly and peacefully and is liable for mental distress caused
bv rudeness of emplovces, but see aliter as to innkeepers and guests, De Wolf
V. Ford. 104 X. Y. Supp. 876 (.1907).






222 WILKINSON r. DOWNTON

puted to the defendant, regard being had to the fact that the effect
was produced on a person proved to be in an ordinary state of heahh
and mind. I think that it was. It is difficult to imagine that such a
statement, made suddenly and with apparent seriousness, could fail
to produce grave effects under the circumstances upon any but an
exceptionally indifferent person, and therefore an intention to pro-
duce such an eft'ect must be imputed, and it is no answer in law to
say that more harm was done than was anticipated, for that is com-
monly the case with all wrongs. The other question is whether the
effect was, to use the ordinary phrase, too remote to be in law re-
garded as a consequence for which the defendant is answerable.
Apart from authority, I should give the same answer and on the
same ground as the last question, and say that it was not too remote.
Whether, as the majority of the House of Lords thought in Lynch
v. Knight (1861), 9 H. L. C. 577, at pp. 592, 596, the criterion is in
asking what would be the natural effect on reasonable persons, or
whether, as Lord Wensleydale thought, the possible infirmities of
human nature ought to be recognized, it seems to me that the con-
nection between the cause and the effect is sufficiently close and
complete.

[The court then discusses Coultas v. R. R., L. R. 13, A. C, 222/
which it holds is not an authority on which this case ought to be
decided.]

A more serious difficulty is the decision in Allsop v. Allsop, 5
H. & N. 534, which was approved by the House of Lords in Lynch
V. Knight, 9 H. L. C. 577. In that case it was held by Pollock, C. B.,
Martin, Bramwell, and Wilde BB., that illness caused by a slander-
ous imputation of unchastity in the case of a married woman did not
constitute such special damage as would sustain an action for such
a slander. That case, however, appears to have been decided on the
ground that in all the innumerable actions for slander there were no
precedents for alleging illness to be sufficient special damage, and
that it would be of evil consequence to treat it as sufficient, because
such a rule might lead to an infinity of trumpery or groundless
actions. Neither of these reasons is applicable to the present case.
Nor could such a rule be adopted as of general application without
results which it would be difficult or impossible to defend. Suppose
that a person is in a precarious and dangerous condition, and another
person tells him that his physician has said that he has but a day to
live. In such a case, if death ensued from the shock caused by the
false statement, T cannot doubt that at this day the case might be
one of criminal homicide, or that if a serious aggravation of illness
ensued damages might be recovered. Judgment for plaintiff.'^



* See Mitchell v. R. R. and Purcell v. R. R., post.

'^Accord: Hill v. Kimball, 76 Tex. 210 (1890), a landlord knowing- of the
pregnancy and proximity of the wife of his tenant made a violent and boister-
ous attack on some negroes. "Defendant was also aware that any undue ex-
citement to a lady in that condition was likely to produce serious injury to
her health." Gaines, J., p. 215.

While invasions of property do not usually involve injury to the owner's



WASHINGTON & GEORGETOWN R. R. CO. V. IIICKEV 227,

CHAPTER IV.
Proximate and Remote Cause.



SECTION I.
Concurrent Cause.



WASHINGTON AND GEORGETOWN RAILROAD CO. v.

HICKEY.

Supreme Court of United States, 1897. 166 U. S., 521.

On the trial evidence was given tending to show that the plain-
tiff was a passenger on a crowded open car of the defendant horse
railroad company ; upon its coming to a point where its tracks inter-
sect those of the defendant steam railroad, the steam cars were seen
approaching at a rapid rate ; the street car stopped, as the railroad
safety gates were being lowered; then they were raised and the
street car started across, but after it got on the steam railroad
tracks the gates were again lowered, shutting in the street car. The
steam train was all the time moving quite rapidly toward the cross-
ing and the passengers seeing this, they rushed in commotion to
escape from the car, pushing Mrs. Hickey off the car and injuring
her. The gates being again raised, the driver whipped up his horses
and the car got across before the train came to the crossing.^

Mr. Justice Peckham delivered the opinion of the court.

This action was brought by the defendants in error, who are
husband and wife, to recover from the defendants (the one being a
horse car company and the other a steam railroad company) dam-
ages for personal injuries sustained by the wife on account of the
alleged negligence of the servants of the defendants. The facts of
the negligence were alleged in the declaration, and each defendant
filed a plea of not guilty, upon which issue was joined. A trial was
had in the Supreme Court of the District of Columbia, resulting in
a verdict for the plaintiffs, the judgment upon which having been
aflfirmed by the Court of Appeals, the defendants have brouglit the
case here for reviev;.

The refusal of the court to charge as requested- was excepted
to and is now made a ground for the reversal of the judgment by

{eeVmgs— White v. Dresser, 135 Mass. 150 (1883'), if the defendant knows
of facts rendering fright or other mental distress likely, it and its effects may-
be proved in aggravation of damages. So where a landlord wrongfully and
noisily tore down the tenant's house, knowing that the latter's wife was dan-
gerously ill within, it was held that the tenant might recover damages for
the death caused by the shock and fright so occasioned, Preiser v. U'iclandt
and Roth. 48 N. Y. App. Div. 569 (1900).

* This statement of facts is condensed from that given in the opinion of
<he Court, p. 522.

' The substance of the instructions requested sufficiently appears from
the argument of counsel quoted in the opinion of the Court.



:^24 WASHINGTON & GEORGETOWN R. R. CO. Z'. HICKEY

this court. In his argument here the counsel for the horse car com-
pany said: "The gist of all of which instructions is that no matter
whether it was negligence or not for the street car company to drive
its car upon the steam car track, yet, if the jury found that it was
the lowering of the gates (and not the negligence, if it were such,
in going upon the steam track) that caused the injury, then they
should find for the street car company. The gist of the instructions
is that it was the lowering of the gates that caused the injury."

The vice in all this argument, as we think, consists in the at-
tempted separation into two distinct causes (remote and proximate)
of what in reality was one continuous cause. It leaves out of view
the action of the driver of the street car as to whether he was or
was not negligent, provided the jury should say the accident would
not have happened if the gates had not been improperly lowered.
That is, although the jury should find that the act of the driver was
negligent, and by reason of that negligence his car was placed in
such a position that the negligent lowering of the gates concurred
with his action in producing the injury, the street car company must
be absolved, if the jury should be able to say that but for such neg-
ligent lowering of the gates (which the driver of the horse car had
no reason to foresee) the accident would not have happened. This
is an attempt to separate that which upon the facts in this case
ought not to be separated. The„ so-called two ne^ligjent arts_jyere,
in fact, united in producin^Jhe_restilt,,-arLd_tlTey-Jtiiade one cause of
concurring_ne^rg-eTreeIon""th e_ pa_rt_of both companies. They w ere
m point oftime_substantially simultaneous ax;ts_and^_parts_o|_one
w!ToTe'transaction,~ancl it would be improper to attem pt a separation
-TTrttreTTTannerasked forT)3rth^TminserjofjIie;;]^^
.—-^ — The alleged negligence of the horse car driver consisted in en-
deavoring to cross at all, under the circumstances, until after the
passage of the train on the steam railroad. Upon the evidence the
jury would have been justified in finding that he had no right to
indulge in any close calculation as to time in attempting to cross
the steam car tracks before the train thereon reached the point of
intersection ; that it was a negligent act in making the attempt under
a state of facts where the least interruption or delay in the crossing
over by the horse car would probably lead to an accident. In this
view of the evidence and finding, it was not material that the driver
had no ground to expect the particular negligent act of lowering
the gates and the consequent obstruction to his passage across the
steam car tracks, or that he would have had time to cross if the
delay thus occasioned had not occurred. The jury had the right to
find it was negligent to cause his car to be so placed that any delay
might bring on a collision. The apparent liability to accident, if
any delay should occur from any cause whatever, was plain, and
such fact would support a finding of negligence in attempting to
cross before the steam car train had passed. In such case it would
be no excuse that the particular cause of a possible or probable de-
lay, viz., the lowering of the gates, was not anticipated. The im-
portant fact was that there existed a possibility of delay, and, there-



WASHINGTON & GEORGETOWN K. R. CO. V. HICKEV 225

fore, of very great danger, and that danger ought to have been
anticipated and avoided. A delay might be occasioned at that time
by an ahnost infinite number of causes; the horses might stumble,
the harness might give way, the car might jump the track; a hun-
dred different .hings might happen which would lead to a delay,
and hence to the probability of an accident. It was not necessary
that the driver should foresee the very thing itself which did cause
the delay. The material thing for him to foresee was the possi-
bility of a delay from any cause, and this he ought naturally to