Tobin v. Grossman
Decision Date | 27 November 1967 |
Citation | 284 N.Y.S.2d 997,55 Misc.2d 304 |
Parties | Philomena TOBIN, as Natural Parent and Guardian of Gregory Tobin, an infant, and Philomena Tobin, Plaintiffs, v. Stuart GROSSMAN, Defendant. |
Court | New York Supreme Court |
Sanford Rosenblum, Albany, for plaintiffs (Eugene R. Spada, Albany, of counsel).
Donohue, Bohl, Clayton & Komar, Albany, for defendant.
This is a motion on behalf of the defendant 'for an Order dismissing the third cause of action contained in the plaintiff's complaint on the ground that said third cause of action fails to state a legal cause of action.'
The allegations germane to a determination of the instant motion are contained in paragraphs 'THIRTEENTH' and 'FOURTEENTH' of the complaint and are as follows:
A proper disposition of the instant motion requires an appraisal of the history of litigation of this character.
Such appraisal of necessity requires a beginning with the celebrated case of Mitchell v. Rochester Railway Co., 151 N.Y. 107, 45 N.E. 354.
In that case the plaintiff 'testified that from fright and excitement caused by the approach and Proximity of the team she became unconscious, and also that the result was a miscarriage, and consequent illness.' (pp. 108, 109, 45 N.E. p. 354.) (Emphasis supplied.)
For a long time the bar generally understood that recovery was denied in the Mitchell case and would be continued to be denied solely because the Courts would not permit recovery in noncontact fright or emotional disturbance cases.
Such misconception has been dispelled by the recent case of Battalla v. State of New York, 10 N.Y.2d 237, 219 N.Y.S.2d 34, 176 N.E.2d 729, where we find that public policy alone apparently has been the stumbling block.
The soundness of such conclusion is borne out on page 240, 219 N.Y.S.2d on page 36, 176 N.E.2d on page 730, of such case when the Court, referring to Mitchell stated:
Surprisingly enough the Court, on the same page, continued with this language:
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