Conley v. United Drug Co.

• Decision Date: 16 June 1914
• Citation: 218 Mass. 238,105 N.E. 975
• Parties: CONLEY v. UNITED DRUG CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

218 Mass. 238

105 N.E. 975

CONLEY v. UNITED DRUG CO.

Supreme Judicial Court of Massachusetts, Norfolk.

June 16, 1914

COUNSEL

Harold C. Haskell, of Boston, for plaintiff.

Sawyer Hardy & Stone, of Boston (Edward C. Stone, of Boston, of counsel), for defendant.

OPINION

CROSBY J.

This is an action brought by a minor, by her next friend, for physical injuries alleged to have been received by her by reason of the explosion of a cylindrical tank. This tank was about four feet long and seven inches in diameter, and contained liquid carbonic acid gas. The explosion occurred in the basement of a building owned and, with the exception of the first floor, occupied by the defendant as a factory. The plaintiff was employed by the United Perfume Company, who occupied the first floor of the building.

1. The defendant contends that the plaintiff's injuries were due wholly to fright, and that she is precluded from recovery under the rule established in the case of Spade v. Lynn & Boston Railroad, 168 Mass. 285, 47 N.E. 88, 38 L. R. A 512, 60 Am. St. Rep. 393. The jury would have been warranted in finding upon the evidence that the explosion was so severe as to cause the floor near where the plaintiff and other girls were at work to be splintered and ripped up, that bottles were thrown about the room and broken, and that the girls was were employed on this floor with the plaintiff were greatly excited and endeavored to escape. The plaintiff testified that she did not recall that she was struck by anything or that she was thrown down, but that she fainted and did not recollect anything thereafter until she found herself at her home. There was also evidence that she was examined by a physician on the morning after the explosion; that this examination 'disclosed tenderness on the plaintiff's right side, shoulder and hip, and some days later a slight discoloration developed on the shoulder and side, and * * * there was a mark over her right shoulder and another near her hip.' The physician testified that these injuries could have been caused by a fall or by being thrown violently against some object in the room. In view of the effect of the explosion upon the plaintiff and the fear and fright caused thereby, a jury might find, notwithstanding the absence of such testimony, that she was thrown to the floor or against some object and so received the physical injuries described. Upon such a finding, manifestly the rule laid down in Spade v. Lynn & Boston Railroad, supra, would not be applicable. If, as the defendant contends, the physical injuries which the plaintiff received were due to her falling upon the floor when by reason of fright she fainted and became unconscious, still we are of opinion that the rule adopted in Spade v. Lynn & Boston Railroad does not apply. We think that if the effect of the excitement and fright under which the plaintiff labored was to cause her to faint and fall to the floor and thereby sustain physical injuries, she would not be barred from recovery. The distinction between the case at bar and the Spade Case lies in the fact that in that case, unlike the present case, there was no evidence of physical injury, and for that reason it was held 'that there can be no recovery for fright, terror, alarm, anxiety or distress of mind, if these are unaccompanied by some physical injury.' Spade v. Lynn & Boston Railroad, 168 Mass. 285, 290, 47 N.E. 88, 38 L. R. A. 512, 60 Am. St. Rep. 393; Gannon v. N. Y., N.H. & H. R. R., 173 Mass. 40, 52 N.E. 1075, 43 L. R. A. 833; Berard v. Boston & Albany Railroad, 177 Mass. 179, 58 N.E. 586; Homans v. Boston Elev. Ry., 180 Mass. 456, 458, 62 N.E. 737, 57 L. R. A. 291, 91 Am. St. Rep. 324; Cameron v. New England Telegraph & Telephone Co., 182 Mass. 310, 65 N.E. 385; Driscoll v. Gaffey, 207 Mass. 102, 92 N.E. 1010.

2. Without question the plaintiff was physically injured as the result of the explosion and while she was in the exercise of due care. Proof of these facts alone, however, are not sufficient to entitle her to recover. In...