Herrick v. Evening Express Pub. Co.

• Decision Date: 04 April 1921
• Citation: 113 A. 16
• Parties: HERRICK v. EVENING EXPRESS PUB. CO.
• Court: Maine Supreme Court

113 A. 16

HERRICK

v. EVENING EXPRESS PUB. CO.

Supreme Judicial Court of Maine.

April 4, 1921.

Exceptions from Supreme Judicial Court, Aroostook County, at Law.

Action by Alice Chase Herrick against the Evening Express Publishing Company. A demurrer to the declaration was overruled, and defendant brings exceptions. Exceptions sustained, demurrer sustained, and declaration adjudged bad.

Argued before CORNISH, C. J., and HANSON, PHILBROOK, MORRILL, and WILSON, JJ.

William R. Roix, of Presque Isle, for plaintiff.

William C. Eaton, of Portland, for defendant.

MORRILL, J. Defendant's general demurrer to the declaration was overruled, and the case is before us upon exceptions to that ruling.

The material facts alleged in the declaration may be succinctly stated thus: On August 5, 1918, the plaintiff was living, and engaged in business, in Wasbburn, Aroostook county; she was the mother of Nathan C. Herrick, who on that date was serving in the American Expeditionary Forces overseas. The defendant is the publisher of a daily paper in Portland, called "Evening-Express Advertiser"; in the issue of that paper of said 5th day of August, under the heading of "Boy Dies Across," the defendant, in the language of plaintiff's allegation, "carelessly and negligently published a certain sketch of Nathan C. Herrick of Mechanic Falls, son of Mrs. A. C. Herrick of Mechanic Falls, who was killed across, and carelessly and negligently below the title of said sketch published the picture of Nathan C. Herrick, son of Mrs. A. C. Herrick of Washburn, Maine." A copy of tills issue came in the usual course of distribution to the house of one Katherine Chouinard of Portland, a sister of the plaintiff, with whom the plaintiff and her husband were visiting, and was seen by the plaintiff, who, as the plaintiff alleges, "recognized the picture as that of her son and immediately after seeing the picture looked above said picture at the heading of the sketch connected with the picture and read, 'Boy Dies Across,' meaning and conveying to the plaintiff the news that Nathan C. Herrick, son of Mrs. A. C. Herrick, the said plaintiff, was dead, and solely because of the careless and negligent publishing of the picture of Nathan C. Herrick, son of the plaintiff, by the said defendant corporation, the said plaintiff immediately became sick and disordered in mind and body and so remained and continued for a long space of time, to wit, to the time of the making of this writ, during all of which time the said plaintiff suffered great pain in body and mind and was hindered and greatly prevented from performing and transacting her lawful business as milliner at said Washburn, during that time to be done and transacted, and was put to great expense, all to the damage of the plaintiff," etc.

The alleged carelessness and negligence in publishing the news item relating to the death of Nathan C. Herrick, of Mechanic Falls, can give no cause of action to the plaintiff; the item itself was true. The plaintiff's rights must rest upon the allegation of carelessness and negligence in publishing, in the manner set forth, the) picture of plaintiff's son. It is not alleged that the publication of the picture was done wantonly, or from wrong motives, or in willful disregard of plaintiff's parental feelings.

The question is therefore presented whether under such circumstances the plaintiff has any cause of action for her mental pain and anguish caused by the shock of the supposed death of her son and her sickness resulting therefrom. We think not.

In case of injury to a child, the father may maintain an action based upon a loss of services, but generally a parent cannot recover damages for injury to parental feelings. Wyman v. Leavitt, 71 Me. 227, 231, 36 Am. Rep. 303, note 306. There are exceptions to this rule, as in cases of seduction or forcible abduction, which are based upon loss of services, but also involve the element of intentional, wanton, and willful wrong.

In case of physical injury to the person caused by negligence, mental suffering resulting from such injury is a legitimate element of damage; but if no bodily injury is alleged or proved, there can be no premise upon which to base a conclusion of mental suffering. Colby v. Inhabitants of Pittsfield, ...