Maury v. United States, Civ. No. 33528.

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
Citation139 F. Supp. 532
Decision Date04 April 1956
Docket NumberCiv. No. 33528.
PartiesMelvin M. MAURY and Mary Jane Maury, Plaintiffs, v. UNITED STATES of America et al., Defendants.

Benjamin F. Marlowe, Oakland, Cal., for plaintiffs.

Lloyd H. Burke, U. S. Atty., Frederick J. Woelflen, Asst. U. S. Atty., San Francisco, Cal., for defendant United States.

OLIVER J. CARTER, District Judge.

Plaintiffs have moved to amend their first amended complaint by adding an alleged "Second Cause of Action." The material portion of the amendment is set forth in proposed paragraph II as follows:

"That as a direct and proximate result of the said carelessness and negligence of the said defendants and each of them as aforesaid, Michael Maury, minor son of plaintiffs, lost his life; that during the fire which destroyed the home of plaintiffs, plaintiffs were present; that plaintiffs with full knowledge that their child was in the said burning house, suffered extreme fright, shock and mental anguish; that as a direct and proximate result of said shock and mental anguish, plaintiff Mary Jane Maury suffered a nervous breakdown and has been confined in the hospital; that plaintiff suffered general damages as a result of said shock and mental anguish, in the sum of $100,000.00."

The first cause of action is for the wrongful death of the child and its propriety as a matter of pleading is not challenged.

This action is brought under the provisions of the Tort Claims Act, 28 U.S.C. § 1346(b), where an action may be brought against the United States, "* * * under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." This occurrence is alleged to have taken place in California. Therefore the validity of the amendment must be determined according to the law of California.

The Government opposes the amendment asserting that it fails to state a cause of action under California law, and, therefore, fails to state a claim for relief under the Federal Rules of Civil Procedure, 28 U.S.C.A. The gist of the alleged claim is that plaintiffs were damaged in that they became physically ill from shock and mental anguish caused by the knowledge that their small child was being burned to death in a house which was burning because of the negligent conduct of agents of the defendant. In essence this is a claim for damages produced by shock from fear of danger or harm to another, where the danger or harm was caused by ordinary negligence, and where the claimant was not himself endangered or harmed.

That this field of tort law is not without conflict is illustrated by the following quotation from the Restatement of the Law of Torts, Vol. 2, p. 851, caveat to Section 313:

"The Institute expresses no opinion as to whether an actor whose conduct is negligent as involving an unreasonable risk of causing bodily harm to a child or spouse is liable for an illness or other bodily harm caused to the parent or spouse who witnesses the peril or harm of the child or spouse and thereby suffers anxiety or shock which is the legal cause of the parent's or spouse's illness or other bodily harm."

The general rule as stated in the legal encyclopedias seems to be contrary to plaintiffs' theory.

"No recovery may be had for mental anguish or wounded feelings of the parent by reason of injury to the child". 67 C.J.S., Parent and Child, § 55, p. 761.
"As a general rule, no recovery is permitted for a mental or emotional disturbance, or for a bodily injury or illness resulting therefrom, in the absence of a contemporaneous bodily contact or independent cause of action, or an element of wilfulness, wantonness, or maliciousness, in cases in which there is no injury other than one to a third person, even though recovery would have been permitted had the wrong been directed against the plaintiff. The rule is frequently applied to mental or emotional disturbances caused by another's danger, or sympathy for another's suffering. It has been regarded as applicable to a mental or emotional disturbance resulting from an injury not only to a stranger, but also to a relative of the plaintiff, such as a child, sister, father, or spouse." 52 Am.Jur. 417.
"* * * such suffering mental suffering is not compensable if it is experienced by the plaintiff as the result of seeing or learning of an actual infliction of serious physical injury on a third party." 14 Cal.Jur.2d 679.

Plaintiffs, recognizing the general rule, assert that California does not follow the general rule, citing Deevy v. Tassi, 21 Cal.2d 109, 130 P.2d 389, and Lindley v. Knowlton, 179 Cal. 298, 176 P. 440. It is apparent that plaintiffs have misconceived the thrust of these cases, and have ignored the other California cases on the subject. Thus far the California courts have not permitted damages in any case where there was not some element of physical injury to, or reasonable fear of injury to the claimant, except in cases of intentional torts, outrageous conduct, or interference with some interest in real property. Where the mental distress, or physical illness resulting from mental distress, occurs as the result of intentional or outrageous conduct recovery is permitted.1 Deevy v. Tassi, supra, upon which plaintiffs rely, falls within this class of cases, and is, therefore, clearly distinguishable from the case at bar. There the conduct which was held to be actionable was a violent physical assault on the members of a family in which all of the plaintiffs were physically injured by the intentional conduct of the defendants. Also, this case does not fall into...

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4 cases
  • Amaya v. Home Ice, Fuel & Supply Co.
    • United States
    • United States State Supreme Court (California)
    • March 12, 1963
    ...fright or mental shock from injuries received by another when the claimant himself sustained no physical injury.' In Maury v. United States (1956, N.D. Cal.) 139 F.Supp. 532, an action by parents for the wrongful death of their child, the plaintiff sought to add a second cause of action bas......
  • Lessard v. Tarca, 108070
    • United States
    • Superior Court of Connecticut
    • May 6, 1957
    ...two strikingly similar to the facts in the present case may be noted; Clough v. Steen, 3 Cal.App.2d 392, 39 P.2d 889, and Maury v. United States, D.C., 139 F.Supp. 532. Connecticut was one of the earliest jurisdictions to recognize mental suffering consequent upon a physical injury as a per......
  • French v. Casto, Civ. A. No. 793.
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • April 6, 1956
    ......Civ. A. No. 793. United" States District Court S. D. West Virginia. April 6, 1956.139 F. Supp. 528\xC2"......
  • Reed v. Moore
    • United States
    • California Court of Appeals
    • December 11, 1957
    ...is not, however, authority to sustain an action for damages produced by an apprehended danger or peril to a third person. Maury v. United States, D.C., 139 F.Supp. 532. We quote the following from 52 American Jurisprudence, page 'As a general rule, no recovery is permitted for a mental or e......

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