Wyman v. Leavitt

• Decision Date: 31 May 1880
• Parties: FRANCES WYMAN and another v. JOHN H. LEAVITT. SAMUEL D. WYMAN v. JOHN H. LEAVITT.
• Court: Maine Supreme Court

71 Me. 227

FRANCES WYMAN and another v. JOHN H. LEAVITT.

SAMUEL D. WYMAN v. JOHN H. LEAVITT.

Supreme Judicial Court of Maine.

May 31, 1880

ON EXCEPTIONS AND MOTION to set aside the verdict.

The facts sufficiently appear in the opinion.

Baker & Baker, for the plaintiffs.

The objection to the testimony of Mrs. Wyman is not well founded because:

I. The element of fear is a legal element of damage in a case like this.

II. These facts were a part of the res gestæ , and proper to go to the jury to determine whether there was gross negligence, amounting to a willful and wanton intent on the part of the defendant.

III. It was competent for Mrs. Wyman to testify to her own feelings and no other evidence was offered. Stowe v. Heywood, 7 Allen 118.

This is an action for injury to the domicil of the plaintiff, while she and her family were occupying it, and it is a legitimate element of damages, that the peace of the house was disturbed, and that the plaintiff was put in fear and peril not as a ground of action, but as an inevitable consequence.

It is absurd to hold that if a person assaults a dwelling house with huge rocks, and breaks in the roof, and endangers the lives of the owner and occupant, and her children, although they are not in fact killed or wounded, that the owner is to have no compensation for her fear, peril and mental suffering. Suppose the danger so alarming as to cause a fright, so great as to produce sickness, fever or insanity, would this be no element of damage?

The cases cited by the defendant's counsel are not analogous, and cannot control this case. The counsel further ably argued other questions arising in the case which it did not become necessary for the court to consider.

A. P. Gould and J. E. Moore, for the defendant, upon the question considered in the opinion, cited: 2 Greenl. Ev. § § 253, 267, 574; Wadsworth v. Treat, 43 Me. 163; Flemmington v. Smithers, 2 Car. & Pa. 292, (12 E. C. L. 131); Lynch v. Knight, 9 Ho. of Lord's Cases, 577, 598; Johnson v. Wells et als. 6 Nev. 224; Meagher v. Driscoll, 99 Mass. 281; Shearman & Red. Negligence, (2d ed.) § 608, a ; Black v. Carrollton R. R. 10 La.Ann. 33; Coakley v. North Penn. R. R. 6 Am. L. Reg. 355; Stowe v. Heywood, 7 Allen 118; Schouler, Domestic Rel. 356; Blaymire v. Haley, 6 Mees. & Wels. 55; Grinnell v. Wells, 7 M. & Gra. 1032 (49 E. C. L. 1032); Davies v. Williams, 10 Adol. & Ell. 725 (59 E. C. L. 723); Ballou v. Farnum, 11 Allen 73; Wade v. Leroy, 20 How. 43; Fay v. Parker, 53 N.H. 342.

VIRGIN J.

These are actions on the case against a sub-contractor to recover damages caused by his alleged negligence in blasting out a ledge within the located limits of a railroad, whereby rocks were thrown upon the plaintiffs' adjoining lands and buildings, and for not removing, within a reasonable time thereafter, rocks thus lodged on their respective premises.

The cases were tried together. At the trial, Mrs. Wyman's counsel asked her, when upon the stand as a witness, to " give the jury some idea of her anxiety in relation to the blasting of the ledge while she was in and about the house--in relation to herself and family." The question was seasonably objected to by the defendant, but the witness was allowed to answer as follows: " At first, I was not much frightened; then after the second Jordan began the heavy blasting, I used to watch my little boy when he went to school and came." This answer was objected to and admitted. After giving a detailed statement of the warnings of the blastings, she further testified in answer to the above general question: " I felt afraid the rocks would hit him" … " I was afraid." (Objected to; admitted.) " I was in fear from the time the second Jordan began to blow those heavy blasts, until they got through." This was also objected to.

The jury were required to find specially, among other things, how much damages they assessed in each action, " for negligence in blasting, including as well the mental anxiety, as the other sources of damages." The jury answered these questions; and in the case of Mrs. Wyman, they found the sum of $264.

There is no evidence in the cases of any injury to the persons of either party or to their child; or of any wanton conduct on the part of the defendant or of his servants. Was the testimony objected to and admitted in relation to Mrs. Wyman's fear of her own or of her child's safety, legally admissible?

As a general proposition, damages are recoverable when they are the natural and reasonable result of the defendant's unlawful act--that is when they are such a consequence as in the ordinary course of things, would flow from such an act. This is the broad rule, covering all the elements of damages, some of which do not enter into every case. The rule though correct as a general abstract statement has its limitations in particular cases. It may include insult and contumely, but they do not exist in every case of personal injury. Personal injury usually consists in pain inflicted both bodily and mental. When bodily pain is caused, mental follows as a necessary consequence, especially when the former is so severe as to create apprehension and anxiety. And not only the suffering experienced before the trial, but such as is reasonably certain to continue afterward, as the result of the injury, rightfully enters into the assessment of damages.

In trespass for assault and battery, the jury may consider not only the mental suffering which accompanies and is a part of the bodily pain, but that other mental condition of the injured person which arises from the insult of the defendant's blows. Prentiss v. Shaw, 56 Me. 427; Wadsworth v. Treat, 43 Me. 163. Or for an assault alone, when maliciously done, though no actual personal injury be inflicted. Goddard v. Grand T. Ry. 57 Me. 202; Beach v. Hancock, 27 N.H. 223; 2 Greene's Cr. Rep. 269. So in various other torts to property alone when the tort-feasor is actuated by wantonness or malice, or a willful disregard of others' rights therein, injury to the feelings of the plaintiff, resulting from such conduct of the defendant, may properly be...