Barnett v. Sun Oil Co.
| Decision Date | 03 January 1961 |
| Citation | 113 Ohio App. 449,172 N.E.2d 734 |
| Parties | , 18 O.O.2d 12 Stanley BARNETT, Administrator of the Estate of Mae Barnett, deceased, Plaintiff-Appellee, v. SUN OIL COMPANY, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Spraul, Henkel & Reyering, Cincinnati, for plaintiff-appellee.
Pogue, Helmholz, Culbertson & French and Edward J. Utz, Cincinnati, for defendant-appellant.
The facts in this case disclose that Mae Barnet was the mother of a number of children, and that she had been accustomed to look after the needs of these children, that she had been suffering from heart disease; that her ankles had been swollen and that she had shortness of breath and headache; that she had been being treated by Dr. Samuel Bell for this condition, and that she further had been a patient in the hospital for this condition. The facts further disclose that on June 30, 1956, the defendant drove a double tandem tractor trailer, loaded with gasoline, down State Avenue hill, as it approaches Harrison Avenue, in the City of Cincinnati, lost control of the vehicle and hit a utility pole; that gasoline was spilled and exploded; that the said street was under repair at the time; that sewer hole tops had been lifted above the general level of the surface of the street; that after the collision a fire ensued; that it was burning in the street and subsequently spread to some building on the west side of Harrison Avenue.
The facts also reveal that a daughter on the second floor of the residence came to the top of the steps and called to her parents that there was a fire in the street; that the Barnett residence is at 1381 Harrison Avenue, on the West side; that the front of the residence is built out to the sidewalk line and the rear of the residence was built into a hill at the rear of the house; that on the west end of a concrete area way, which was at the north side of the residence, and about twenty feet from the front of the house on the ground level, there was a side entrance which opened into the said areaway; that at the west end of the concrete area was a flight of six steps which lead to the rear yard; that when the fire broke out Mae Barnett and her husband were in bed in the bed room on the ground floor; that they arose and started to leave the premises to reach Ernst Street in the rear of their property; that they proceeded up the said concrete steps; that they went through the yard and up the fourteen steps to the second level of the barn (to the rear of their property) to reach Ernst Street (to the rear); that when they reached a point near Ernst Street, Mrs. Barnett said that she could go no further, and they took her to a neighbor's porch, where she died.
The facts further reveal that the death certificate shows that Mrs. Barnett died from hypertension heart disease.
A judgment for $41,000, which was later reduced to $20,000, was returned by the jury, and the case is in this Court on an appeal from that judgment.
The question for the Court to determine is whether or not, in the light of all the circumstances of the case, the defendant can be charged with recoverable negligence. The cases on this subject lay down certain conditions which much be present before recovery can be had: 1) in cases of pure fright without physical injury 2) in cases where physical injury has resulted. Now, in a negligence case there can be no recovery for fright or stock unaccompanied by physical injury, unless the act complained of was 'intentional, wilful or wanton.'
The English law likewise is that no recovery can be had without physical injuries. And from 16 Minn. Law Review, 860, we find that in Mees v. Western Union Telegraph Co., D.C., 55 F.2d 691, it was held that 'an action cannot be predicated on mental suffering alone, physical sickness resulting therefrom is not actionable because it is not the proximate result of defendant's negligence. * * * where there is no actual physical impact and the wrong is not wilful, damages cannot be allowed for physical sickness or disability resulting merely from mental anguish.'
Paragraph 1 of the syllabus in Koontz v. Keller, 52 Ohio App. 265, 3 N.E.2d 694, 695 is as follows:
'In a negligence case there can be no recovery for fright or shock unaccompanied by physical injury, unless the act complained of was intentional, wilful or wanton.'
Many years previously (1894) in Kester v. Western Union Telegraph Co., 8 Ohio Cir. Ct.R. 236, the Court held that mental suffering brought about by the failure to receive a telegram announcing a death and time of a funeral unless there are accompanying physical injuries, is not actionable. And in a later case, Hillard v. Western & Southern Life Ins. Co., 68 Ohio App. 426, 34 N.E.2d 75, the same rule in a case where there are no physical injuries is laid down. In a case involving negligence which causes fright, there can be no recovery without wantonness, wilfulness and intention.
See, also Lehman v. Brooklyn City Ry. Co., 47 Hun, N.Y., 355.
Otherwise (without intention, wilfulness and wantonness) the personal injury must be accompanied by 'contemporaneous physical injury.' Miller v. Baltimore & Ohio S. W. R. Co., 78 Ohio St. 309, 85 N.E. 499, 18 L.R.A.,N.S., 949, approved and followed. Moreover, 'a personal injury or disability which, in the light of the surrounding circumstances could not have been reasonably anticipated as a possible result of the particular negligence, is not actionable.' Davis v. Cleveland Ry. Co., 135 Ohio St. 401, 21 N.E.2d 169.
In Davis v. Cleveland Ry. Co., 135 Ohio St. 401, 21 N.E.2d 169, the syllabus is as follows:
'In a personal injury action involving ordinary negligence, no liability exists for fright and its consequences when such fright is unaccompanied by contemporaneous physical injury.'
'A personal injury or disability which, in the light of the surrounding circumstances, could not have been reasonably anticipated as the probable result of the particular negligence, is not actionable.'
See, also Haile's Curator v. Texas & Pacific Ry. Co., 5 Cir., 60 F. 557, 23 L.R.A. 774, and State for Use of Aronoff v. Baltimore Transit Co., 197 Md. 528, 80 A.2d 13, and Mauney v. Gulf Refining Co., 193 Miss. 421, 422, 8 So.2d 249, 9 So.2d 780, and Dahlstrom v. Shrum, 368 Pa. 423, 84 A.2d 289, and Uvalde Const. Co. v. Hill, 142 Tex 19, 175 S.W.2d 247. Also, Herrick v. Evening Express Publishing Co., 120 Me. 138, 113 A. 16, 23 A.L.R. 358; Southern Express Co. v. Byers, 240 U.S. 612, 36 S.Ct. 410, 60 L.Ed. 825.
Because the case of Miller v. Baltimore & Ohio S. W. R. Co., 78 Ohio St. 309, 85 N.E. 499, 18 L.R.A., N.S., 949 (decided June 9, 1908) has been followed by the Courts for many years in cases such as the case before us, we set out the syllabus as follows:
'In an action to recover damages for injuries sustained through the negligence of another, the law regards only the direct and proximate results of the negligent act as creating a liability against the wrongdoer.
'In contemplation of law, an injury that could not have been foreseen or reasonably anticipated as the probable result of an act of negligence, is not actionable.
'No liability exists for acts of negligence causing mere fright or shock, unaccompanied by contemporaneous physical injury, even though subsequent illness results, where the negligent acts complained of, are neither wilful nor malicious.'
And 39 Ohio Jur., (2d) p. 494, Section 11 treats the subject of foreseeability as follows: ...
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SANFORD v. Ohio Dep't of HEALTH
...wilful, damages cannot be allowed for physical sickness or disability resulting merely from mental anguish * * *.'" Barnett v. Sun Oil Co. (1961), 113 Ohio App. 449, 450-451, quoting Mees v. Western Union Telegraph Co., 55 F. 2d, 691. {¶ 8} Nonetheless, even if plaintiff had established an ......