Stewart v. Gilliam
| Decision Date | 12 December 1972 |
| Docket Number | No. 71--785,71--785 |
| Citation | 271 So.2d 466 |
| Parties | J. Parks STEWART, Individually and as Administrator of the Estate of Jane R. Stewart, Deceased, Appellants, v. Freddie LaVerne GILLIAM and Robert Leo Bradley, Appellees. |
| Court | Florida District Court of Appeals |
William Ford Duane, of Robertson & Williams, Orlando, for appellants.
R. James Stroker and Fred M. Peed, of Gurney, Gurney & Handley, Orlando, for appellee Freddie Laverne Gilliam.
Monroe E. McDonald and John Singer McEwan, II, of Sanders, McEwan, Mims
& McDonald, Orlando, for appellee Robert Leo Bradley.
This appeal from a final summary judgment in favor of the defendants presents this court with the proposition of whether a plaintiff may maintain a cause of action and recover for the Physical consequences of a mental or an emotional disturbance caused by a negligent act in absence of physical impact.
Plaintiffs Jane R. Stewart and J. Parks Stewart, her husband, originally initiated their complaint against the defendants, Gilliam and Bradley, seeking compensatory damages and alleging, inter alia, that on January 20, 1970, defendants negligently and carelessly operated their motor vehicles so as to collide with each other and ultimately to collide with the residence of the plaintiffs. The complaint further alleged that 'as a direct and proximate result of the negligence of the Defendants, Freddie LaVerne Gilliam and Robert Leo Bradley, the Plaintiff, Jane R. Stewart, Suffered serious and grievous personal injuries, including a shock to her nervous system which resulted in a coronary insufficiency and myocardial infarction and a left lateral cerebellar lesion.' Defendants' vehicles were involved in an intersectional collision, both being propelled over the curb, the Gilliam vehicle coming to rest at an oak tree on the Stewarts' property and the Bradley vehicle directly striking the masonry residence of the plaintiffs causing minor damage to the dwelling. The accident occurred shortly before nine in the morning; Mrs. Stewart was still in bed but not asleep. Mrs. Stewart heard the crash at the intersection and then heard the crash of the cars striking the tree and the house. When Mrs. Stewart heard the car hit the house she got out of bed, went to the front porch, looked through the window and saw Bradley's car against her house with steam coming out of the radiator; she was also able to observe the Gilliam vehicle resting against the oak tree. She was unable to get out the back door of her house through the kitchen because of the Bradley vehicle so she ran back through the den and out another back door to ascertain if anyone was hurt. She then went back into her house to use the telephone also permitting various people to come into her house to use the phone.
Within 15 minutes after returning to the house, Mrs. Stewart went back to bed because of chest pains and approximately two hours later she was in the intensive care unit of the Orange Memorial Hospital. At the time the car struck Mrs. Stewart's house she said she felt no physical impact. When she was examined at the hospital there were no outward signs of physical injury. Mrs. Stewart described the 'impact' as follows:
'Q When the accident occurred, you say you heard it. Did you feel the car hit the house?
'A I certainly did.
'Q Could you describe that for me?
'A Well, it just hit with a great thud and then it, evidently, bounced back and came forward and hit my house twice.
'Q Did it shake the house or did it shake the bedroom?
'A I wouldn't say it shook the house. The house is masonry, but it hit with a great thud, enough that my cat jumped down, and he was running around like he was crazy.
'Q Then, as I understand it, you could hear it, because it was a large crash?
'A Certainly could. My house is small, yes, sir.
'Q You actually couldn't tell it in the sense that it shook you or the house?
'A Well, I couldn't say that it shook the masonry house. My house doesn't vibrate at all with the traffic going by, because it is all masonry and concrete floor.
'Q I don't suppose it shook either you or the house, as far as you can recall?
'A I wouldn't say so.'
Mrs. Stewart remained at the hospital from January 20 until February 17, 1970. 1
Following the accident on January 20, Dr. Morton Levy, who had been Mrs. Stewart's family physician for a 20-year period, examined her and diagnosed her condition as being myocardial infarction; she subsequently developed a cerebral embolus. 2 Dr. Levy indicated that Mrs. Stewart had no prior history of coronary disease although she had hypertension over a period of years. In his opinion as to what caused the myocardial infarction and cerebral embolus, Dr. Levy stated:
'A I think her cerebral embolus was secondary to a myocardial infarction, and I think her myocardial infarction was probably secondary to Severe and sudden fright, secondary to this Automobile crashing into her house.'
'Q Doctor, is it just as probable that the myocardial infarction was caused by the physical activities related to the accident, such as the running outside to find out what happened and running back in to make a phone call and moving around when people came into the house and talking to some people, if she did talk to some people?
'A I don't think so.
'Q In other words, you think it was the fright?
'Q Okay. Then in your opinion, Doctor, based on the history given you and the examination and the treatment and your following the patient, the cause of the myocardial infarction was the fright she suffered as the result of hearing the impact to the house or accident at her house?
'A Basically, yes.'
In entering the summary judgment the trial court made the following findings:
'That although there was an impact between the house in which the Plaintiff resided and the Defendant ROBERT LEO BRADLEY'S vehicle, there was no physical contact with the Plaintiff.
'That there was some evidence there was or may have been some tremor in the house but the Plaintiff was not conscious of this.
'That there was some evidence that the only other thing that reached the Plaintiff was the sound of the impact of Defendant's automobile with the house, and 'The medical testimony shows that the Plaintiff suffered a myocardial infarction as a reaction to the fright caused by the noise of the collision of Defendant's vehicle with the house.'
The trial court's entry of the summary judgment is consistent with the judicially established precedent heretofore in effect, namely, that no recovery can be had for mental pain and suffering Unaccompanied by any physical injuries in the absence of wantonness, wilfulness or malice. Clark v. Choctawhatchee Electric Co-Operative, Fla.1958, 107 So.2d 609; Crane v. Loftin, Fla.1954, 70 So.2d 574; Dunahoo v. Bess, 1941, 146 Fla. 182, 200 So. 541; International Ocean Tel. Co. v. Saunders, 1893, 32 Fla. 434, 14 So. 148; Kirksey v. Jernigan, Fla.1950, 45 So.2d 188. Cf. Way v. Tampa Coca Cola Bottling Company, Fla.App.1972, 260 So.2d 288.
Dunahoo was concerned with the careless and negligent manner in which the plaintiff's body was handled, the court finding no recovery for mental anguish unconnected with physical injury. Kirksey also involved the manner in which the dead body of plaintiff's child was handled, but here the court, while reaffirming the rule as it related to a Negligent breach of contract, refused to extend the rule to a case founded purely In tort where the wrongful act reasonably implied Malice. International Ocean Tel. Co. involved mental pain and suffering as a result of the failure of a telegraph company to promptly deliver a telegraphic message. No recovery was permitted. Cf. Griffith v. Shamrock Village, Fla.1957, 94 So.2d 854.
In the Crane case the plaintiff sought damages for personal injuries alleged to have resulted from fright and mental anguish unaccompanied by direct physical impact, i.e., plaintiff had to flee from her automobile in order to avoid being struck by a locomotive which was alleged to have been operated at an excessive speed across a heavily traveled highway. The court clearly announced the rule that absent a showing of wilful and wanton negligence on the part of the railroad, plaintiff could not recover damages for personal injuries resulting from fright and mental anguish Unaccompanied by direct physical impact or trauma.
This rule was recently restated in Clark, supra, where the Supreme Court permitted plaintiff to recover for an emotional disturbance caused by an electrical shock. There were no burns on the body of the plaintiff but she did Feel a shock. There was no doubt but that the court found impact. A high power line carrying 7,200 volts of electricity had fallen on some gasoline pumps near a building where plaintiff was ironing and the power line discharged an electric current which shocked the plaintiff. The court observed:
'But the symptoms were sufficient to warrant the conclusion that she was, indeed, shocked instead of having become emotionally upset by fright from the electrical display.'
Florida, therefore, has aligned itself with those jurisdictions requiring physical impact as a prerequisite for maintaining a cause of action for personal injuries--so that there can be no recovery for injuries resulting from a mental or emotional disturbance unaccompanied by physical trauma. The rule previously announced has been Rejected by a majority of American jurisdictions and England and has been...
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Champion v. Gray, 81-1309
...emotional states and physical injuries have been significantly refined since the impact rule was first announced. Stewart v. Gilliam, 271 So.2d 466 (Fla. 4th DCA 1973), quashed, 291 So.2d 593 (Fla.1974). Due to the advances of medical science in the field of psychic injuries, it is foreseea......
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...should stand as written.We observe, however, that reliance upon Gilliam v. Stewart, Fla.1974, 291 So.2d 593 (overruling Stewart v. Gilliam, 4 D.C.A. 1973, 271 So.2d 466), cited by Judge Gee's note 1, as the "Florida Supreme Court's definitive opinion * * * by which Florida embraced the impa......
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