Alabama Fuel & Iron Co. v. Baladoni

• Citation: 15 Ala.App. 316,73 So. 205
• Decision Date: 28 November 1916
• Docket Number: 6 Div. 8
• Parties: ALABAMA FUEL & IRON CO. v. BALADONI.
• Court: Alabama Court of Appeals

73 So. 205

15 Ala.App. 316

ALABAMA FUEL & IRON CO. v. BALADONI.

6 Div. 8

Court of Appeals of Alabama

November 28, 1916

Appeal from City Court of Birmingham; Charles W. Ferguson, Judge.

Action by Charles Baladoni against the Alabama Fuel & Iron Company. From judgment for plaintiff, defendant appeals. Affirmed.

Percy Benners & Burr, of Birmingham, for appellant.

Perdue & Drake, of Birmingham, for appellee.

EVANS J.

Appellee (plaintiff below) brought his action on the case to recover for the loss of the services of his wife, occasioned by the alleged negligence of appellant. The right of recovery is appropriately challenged; appellant's chief contention being that the damages in question were the result of a fright, and were not recoverable. Defendant introduced no testimony, and its version of the circumstances of the case are to be had only from its answers to interrogatories propounded to it under the statute, and which were introduced by the plaintiff. From these, it appears, the defendant's version of the matter was widely variant from that of the eyewitnesses of the plaintiff, which was accepted by the jury as the basis of its verdict. Briefly stated, the plaintiff's testimony was about as follows: Appellee was a miner, working for defendant at Margaret, a mining camp or village; there he rented a house from the defendant for himself and family, consisting of his wife, Marie, and a five year old daughter. One Self was employed by the company, who was charged with the duty of policing or keeping order in and about the camp, and also that of renting the houses. On the day of the wrong complained of, Self rode up to the home of appellee and inquired of his wife if he had gone to his work. While seated on his horse talking to the wife, who was then on the porch of her house a few feet away, Self shot the dog of appellee. According to the testimony of the two eyewitnesses--the wife and her next door neighbor--the dog and appellee's little girl were, at the time of the shooting, but a few feet apart, and both within a few feet of the steps to the porch where appellee's wife was. Self was then also but a few feet away from the dog, but further from it than he was from the child. The wife was enceinte the allegation of the complaint being that she was far gone in pregnancy. The shooting of the dog, under the circumstances of its occurrence, so unnerved and upset the wife that she took to her bed and the following day had a miscarriage. From this, it is alleged, she has never fully recovered, and is still unable to attend to her household duties; she was confined to a hospital three months, and appellee, besides losing the society of his wife, incurred and paid out upwards of $400 in and about her medical treatment.

Counsel for appellant, following a long line of decisions to that effect, earnestly insist that damages for injuries superinduced by fright are not recoverable. It may be justly said that the decisions on this subject, both English and American, and particularly the latter, are in irreconcilable confusion.

Counsel respectfully insist that this court fell into "grave error" in promulgating the doctrine announced in the case of Spearman v. McCrary, 4 Ala.App. 473, 58 So. 927, and urge upon us to recede from that case and disaffirm the holding therein. Upon petition to the Supreme Court, a writ of certiorari to review this case was denied. Ex parte Spearman, 177 Ala. 672, 58 So. 1038. After careful examination of a great number of authorities pro and con, we are of opinion that the conclusion reached by the learned judge in Spearman's Case, supra, accords with the better considered cases. It is our opinion that physical injuries directly caused by fright, which was the proximate consequence of defendant's negligence, are recoverable, and may be sustained both in reason and on principle.

The authorities holding that such damages may not be recovered may be summarized as grounding their opinions on the following reasons: (1) It is argued that since there can be no recovery for fright alone, it must necessarily follow that there can be no recovery for the consequences of fright; (2) that physical injury resulting from fright caused by negligence is not the proximate result of the negligence; and (3) that on the ground of expediency or public policy, recovery should be denied because of the danger of opening the door to fictitious litigation, easily simulated, and the impossibility of estimating the damages.

Assuming the facts to be as testified by the eyewitnesses, it cannot be contended that in shooting the dog on appellee's premises, and under the conditions and circumstances above set out, Self personally did not breach a duty owing to both the appellee and his wife. Pretermitting for the time any question of scope of agency, the question turns upon the remoteness and speculativeness of the damages. To say that, "since there can be no recovery for fright alone, it must necessarily follow that there can be no recovery for the consequences of fright" is plainly a non sequitur. Damages, when confined to fright alone, is dealing with a metaphysical, as contradistinguished from a physical, condition, with something subjective instead of objective, and entirely within the realm of speculation. So the damages suffered where the only manifestation is fright are too subtle and speculative to be capable of admeasurement by any standard known to the law; but when the damages are physical and objective as consequent upon the physical pain and incapacity manifested by and ensuing upon a miscarriage, the damages are quite as capable of being measured by a jury as if they had ensued from an impact or blow. Then the question recurs upon the second reason of the decisions above, to wit: Are the damages the proximate result of the negligence or of the fright? The primary cause is none the less the proximate cause becauses it happens to operate through successive instrumentalities; that is to say, where the injury naturally and probably ensues in unbroken sequence, uninfluenced or uncontrolled by an independent, intervening efficient cause, the injury is referred to the primary as the proximate cause. Here the firing of the pistol caused the fright, and the fright in turn so operated upon the nervous or physical system as to cause the miscarriage and injury, and the fright was but a link in the chain of causation, the injury being referred to the negligent act as the causa causans, setting in motion the agencies ultimating in the injury. See Armstrong v. Montgomery, 123 Ala. 233, 249, 26 So. 353; M. & O.R.R. Co. v. Christian Moerlein Brewing Co., 146 Ala. 404, 41 So. 17; Jones v. Union Foundry Co., 171 Ala. 225, 231, 55 So. 153. That such is the case, and that fright may not be said to be an intervening efficient, or proximate, cause of the injury, nor a concurrent cause, is borne out in the analogy of the law, for where one is placed in sudden peril, and but for his fright consequent thereon the injury would not have occurred, the injured person under the stress of emergency is not chargeable with contributory negligence if he fail to act as under ordinary circumstances he might, but the injury is referable solely to the primary, negligent act that set in motion the dangerous agency. If the wife was "far gone in pregnancy," as alleged in the complaint, this fact might have been noted by an ordinarily prudent man, and the question of a miscarriage might have been easily anticipated as a contingency likely to happen upon the firing of a pistol in the immediate presence of the wife and child.

The doctrine of expediency or public policy--the third reason upon which some of the decisions above referred to are rested--is a doctrine that should be very sparingly and cautiously employed, for if a person's rights have been unlawfully invaded, it would ill become a court of justice to withhold its remedy on the ground of expediency. It may be that physical injuries springing out of fright are easily simulated, and relief granted in such instances would open the door to fraud and imposture; but this is a matter involving the proof of the case and is addressed rather to the good sense and honesty of purpose of our juries than to the courts.

In the case of Engle v. Simmons, 148 Ala. 92, 95, 41 So. 1023 [[[7 L.R.A. (N.S.) 96, 121 am.st.rep. 59, 12 ann.cas. 740], our supreme court quotes with approval a Texas case (Hill v. Kimball, 76 Tex. 210, 13 S.W. 59, 7 L.R.A. 618) as follows:

"That a physical, personal injury may be produced through a strong emotion of the mind there can be no doubt. The fact that it is more difficult to produce such an injury through the operation of the mind than by direct physical means affords no sufficient ground for refusing compensation in an action at law when the injury is intentional or negligently inflicted. It may be more difficult to prove the connection between the alleged cause and the injury, but if it be proved, and the injury be the proximate result of the cause, we cannot say that a recovery should not be had. Here, according to the allegations of the

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