408 A.2d 728 (Md. 1979), 14, Vance v. Vance

Docket Nº14.
Citation408 A.2d 728, 286 Md. 490
Opinion Judge[10] Murphy
Party NameArnold Leonard VANCE v. Muriel Gwendolyn VANCE.
Attorney[7] Thomas C. Gentner, with whom were Rollins, Smalkin, Weston, Richards & Mackie, Robert W. Fox, Timothy E. Welsh and Jerome S. Colt on the brief, for appellant.
Case DateDecember 12, 1979
CourtCourt of Appeals of Maryland

Page 728

408 A.2d 728 (Md. 1979)

286 Md. 490

Arnold Leonard VANCE


Muriel Gwendolyn VANCE.

No. 14.

Court of Appeals of Maryland.

December 12, 1979

Page 729

[286 Md. 492] Thomas C. Gentner, Baltimore (Rollins, Smalkin, Weston, Richards & Mackie and Robert W. Fox, Baltimore, and Timothy E. Welsh and Jerome S. Colt, Columbia, on the brief), for appellant.

Bernard F. Goldberg and Michael D. Rexroad, Ellicott City, for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, ORTH and COLE, JJ.

MURPHY, Chief Judge.

We granted certiorari in this case to consider two principal issues: (1) whether, under the "physical injury" test set forth in Bowman v. Williams, 164 Md. 397, 165 A. 182 (1933), damages were properly recovered by the plaintiff for emotional distress resulting from the defendant's negligent misrepresentation and (2) whether under the principles of Harris v. Jones, 281 Md. 560, 380 A.2d 611 (1977), the plaintiff presented legally sufficient evidence to the jury to establish all elements of the independent tort of intentional infliction of emotional distress.

The relevant facts are these: Arnold Vance (Dr. Vance) and Muriel Vance (Muriel) participated in a religious marriage ceremony in Arlington, Virginia on September 29, 1956. They lived together as husband and wife for eighteen years and had two children. On February 1, 1974, Dr. Vance left Muriel for another woman, prompting Muriel to seek and obtain a decree in the Circuit Court for Howard County awarding her alimony and child support. Dr. Vance filed a timely motion to strike the decree and annul the marriage on the ground that the marriage was void because he was not divorced from his first wife at the time he purported to marry Muriel.

As a result of this disclosure, Muriel sued Dr. Vance for compensatory damages for emotional distress which she claimed to have suffered as a consequence of Dr. Vance's [286 Md. 493] negligent misrepresentation concerning his marital status at the time of their ostensible marriage in 1956. Under another count of the declaration, Muriel sought damages from Dr. Vance for the intentional infliction of emotional distress which she claimed resulted from his concealment and belated revelation of their true marital status.

At the trial, evidence was adduced showing that Dr. Vance separated from his first wife in July of 1954 and subsequently initiated suit for an absolute divorce. Erroneously believing that he had obtained his final divorce decree on September 12, 1956, Dr. Vance told Muriel later that month that he was free to marry her. Approximately one month after his September 29, 1956 marriage to Muriel, Dr. Vance discovered that his divorce decree had not become final until October 16, 1956. There was evidence

Page 730

that Dr. Vance never told Muriel that their marriage was a nullity, and that Muriel did not discover that fact until Dr. Vance sought to annul the marriage twenty years later.

Muriel's mother testified that her daughter was in a state of emotional collapse after Dr. Vance filed the motion to annul the marriage. Testifying on her own behalf, Muriel said that upon learning that her marriage was void, she believed that her two children had been illegitimatized 1 and that she had been deceived throughout twenty years of marriage. She described her emotional reaction in these words:

"I just I couldn't function, I couldn't sleep, I was totally embarrassed by the fact that he had filed this and it became public knowledge, once it's filed. I consider it defamation of my character. I was too embarrassed to go out and socialize with people that tried to be kind to me. And I just couldn't function. I really thought I was going to have a nervous breakdown. And I even now have symptoms of an ulcer." [286 Md. 494]

Muriel's son by a former marriage, Walter Hess, testified that he frequently spoke with his mother in the days following the discovery that her marriage to Dr. Vance was void. He said that he was frightened by his mother's emotional depression, and that her appearance had changed from that of a woman of beauty to a person who looked "a wreck," with unkempt hair, sunken cheeks, and dark eyes. Hess testified that he had great difficulty in communicating with his mother during this period because she appeared detached, unaware of her own presence, and spent long periods of time crying and sobbing. Hess expressed fear that his mother would end up in an asylum.

No medical evidence was adduced to substantiate Muriel's claim of emotional distress, nor was any evidence produced that she took any medication for her condition.

At the close of the evidence, the trial judge (Macgill, J.) directed a verdict for Dr. Vance on the count of the declaration charging intentional infliction of emotional distress. The jury returned a verdict in Muriel's favor for $50,000 on the negligent misrepresentation count, but the trial court thereafter entered a judgment N.O.V. for Dr. Vance on this count. Muriel appealed both rulings and as to each the Court of Special Appeals reversed. Vance v. Vance, 41 Md.App. 130, 396 A.2d 296 (1979).

Writing for the Court of Special Appeals, Chief Judge Gilbert concluded that there was evidence before the jury that Muriel "suffered from emotional distress as a result of learning that her 'marriage' of almost 20 years was no marriage at all." He said that under Maryland law, as set forth in Bowman v. Williams, 164 Md. 397, 165 A. 182 (1933), a right of recovery exists for emotional distress "if it results in physical injury"; and that the evidence, considered in a light most favorable to Muriel, was sufficient to support a jury finding that she was "physically injured." The Court of Special Appeals, quoting from Bowman (164 Md. at 404, 165 A. 182), observed that the mental distress must result in " 'some clearly apparent and substantial physical injury, as manifested by an external condition or by symptoms clearly indicative of a resultant pathological, physiological, or mental [286 Md. 495] state.' " The court said: "We think the evidence . . . supports a finding by the jury of physical injury from (Muriel's) 'external condition.' (Muriel's) nervousness, spontaneous crying, hollowed appearance, and inability to relate to the present, all constituted evidence of an external condition." Vance v. Vance, supra, 41 Md.App. at 137, 396 A.2d at 301. The court characterized as "outmoded" the belief that there can be no injury to the mind without overt manifestations of bodily harm. It said that "the psyche is as susceptible of injury as the body, and that the absence of apparent physical damage does not serve to lessen the extent of the mental injury." Id. at 138, 396 A.2d at 301.

Page 731

In concluding that the trial court also erred in directing a verdict for Dr. Vance on the count of the declaration charging intentional infliction of emotional distress, the Court of Special Appeals held that there was legally sufficient evidence before the jury, if believed, to establish all elements of the tort under Harris v. Jones, 281 Md. 560, 380 A.2d 611 (1977).


Dr. Vance contends that the Court of Special Appeals was wrong in holding that Muriel's emotional distress, resulting from the alleged negligent misrepresentation of his marital status, constituted a "physical injury" within the contemplation of the Bowman rule. He argues that claims based solely on emotional distress are not compensable and that "external" evidence of emotional distress cannot be equated with the physical injury requirement of the Bowman case. Rather, he argues, there must be a link between the external condition and a physical injury which, to satisfy the dictates of Bowman, must be "clearly apparent and substantial." The physical injury must be shown, he contends, by objective indicia of emotional distress evidenced by physical deterioration in the nature of bodily injury. Dr. Vance suggests that Muriel's nervousness, spontaneous crying, hollowed appearance and inability to relate to the present are but physical manifestations of an allegedly distressed mental [286 Md. 496] state and that, unaccompanied by any bodily injury, are insufficient to show physical injury under the Bowman test.

As the trial judge so carefully instructed the jury, a cause of action for negligent misrepresentation exists where one relies on the statements of another who negligently volunteers an erroneous opinion, intending that it be acted upon; the defendant must either know or should know that loss or injury likely will result if the erroneous representation is acted upon. Piper v. Jenkins, 207 Md. 308, 313, 113 A.2d 919 (1955); Holt v. Kolker, 189 Md. 636, 639, 57 A.2d 287 (1948); Virginia Dare Stores v. Schuman, 175 Md. 287, 1 A.2d 897 (1938). That Muriel suffered emotional distress as the ultimate, foreseeable result of Dr. Vance's negligent misrepresentation of his marital status in 1956 was established to the jury's satisfaction. Whether Muriel can recover damages for her mental distress depends upon a proper interpretation of the Bowman "physical injury" standard, thus necessitating a brief examination of the historical and evolutionary context within which the rule developed.

Under the traditional rule, formulated in the nineteenth century, courts did not recognize a duty to refrain from the negligent infliction of emotional distress and therefore recovery of damages solely for mental distress was not permitted. See Green v. Shoemaker, 111 Md. 69, 73 A. 688 (1909); Spade v. Lynn & Boston R. R., 168 Mass. 285, 47 N.E. 88 (1897); Lynch v. Knight, 11 Eng.Rep. 854, 9 H.L. Cas. 577 (1861); Annot., 64 A.L.R.2d 100-149 (1959). Instead, damages for mental distress had a parasitic status; recovery was dependent upon an immediate physical injury accompanying an independently...

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