Bouillon v. Laclede Gaslight Co.

• Citation: 129 S.W. 401,148 Mo. App. 462
• Parties: BOUILLON v. LACLEDE GASLIGHT CO.
• Decision Date: 17 May 1910
• Court: Court of Appeal of Missouri (US)

129 S.W. 401

148 Mo. App. 462

BOUILLON v. LACLEDE GASLIGHT CO.

St. Louis Court of Appeals. Missouri.

May 17, 1910.

Rehearing Denied June 14, 1910.

1. ASSAULT AND BATTERY (§ 2)—CIVIL LIABILITY —WHAT CONSTITUTES ASSAULT—VIOLENT LANGUAGE.

A wrongful entry into plaintiff's flat by defendant's agent and the frightening of plaintiff so as to cause a miscarriage by using violent language toward her maid, when the latter attempted to shut the agent out as directed by plaintiff, was not an assault upon plaintiff.

2. DAMAGES (§ 20)—CONSEQUENCES OF TORT.

A trespasser is liable for for such injuries as result naturally, necessarily, and proximately from his wrongful act.

3. DAMAGES (§ 20)—CONSEQUENCES OF TORT.

Fright and mental anguish arising from a trespass to person or property are proper elements of damage in an action for trespass, whether or not the wrongdoer reasonably anticipated the result of his trespass, and though physical injury did not result; so that, where defendant's agent wrongfully entered plaintiff's flat to read a gas meter, which was in fact in a part of the house not occupied by plaintiff, and caused her to have a miscarriage by frightening her by the use of violent language to her maid, plaintiff could recover damages for the miscarriage resulting from the fright and mental anguish caused by the trespass, though defendant's agent did not know that plaintiff was confined because of pregnancy.

4. DAMAGES (§ 18)—TORT ACTIONS—REMOTE DAMAGES.

In cases of affirmative wrong, damages are not remote so as to bar recovery, when they are directly traceable to the wrongdoers of the wrongful act.

5. MASTER AND SERVANT (§ 302)—INJURIES TO THIRD PERSONS—MASTER'S LIABILITY.

The agent of a gas company authorized to read gas meters was acting within the scope of his employment in entering plaintiff's part of a flat and attempting to open the door for the purpose of reading a meter, though the meter was in fact in a part of the building not occupied by her, so as to make the company liable for physical injuries to plaintiff from the agent's use of violent language in attempting to enter plaintiff's flat; it not being essential that the act be specially authorized or necessary to the performance of the agent's duties.

Appeal from St. Louis Circuit Court; M. N. Sale, Judge.

Action by Winnie Bouillon against the Laclede Gaslight Company. From a judgment for defendant on a directed verdict, plaintiff appeals. Reversed and remanded.

P. P. Mason and A. A. Paxson, for appellant. Percy Werner, for respondent.

NORTONI, J.

This is a suit for damages accrued through physical injuries which resulted from fright. At the conclusion of plaintiff's case, the court directed a verdict for defendant, and plaintiff prosecutes the appeal.

It appears that plaintiff, a married woman, resides in the lower flat at 812 North Jefferson avenue in the city of St. Louis, and at the time in question was there sick in bed. She was pregnant with child and threatened with a miscarriage. She had been confined to her bed in care of a physician for about one month, when, on October 16th, defendant's agent came to the front door of her apartment, and demanded admission for the purpose of reading the gas meter. It appears plaintiff did not use gas at all in connection with her household, but a meter had been installed in the basement immediately under her flat in connection with the flat above occupied by other tenants. Plaintiff testified that she heard some one knocking at the front door, which, it seems, was almost adjacent to the room in which she was confined to her bed. Upon hearing loud raps at the door, she directed the nurse to answer the call. The nurse opened the door, and defendant's agent said: "I am from the Laclede Gas Company, and I came to read that meter." The nurse answered, "You can't come through here to-day. The lady is awfully sick here," to which the agent replied, "I have to read the meter." Thereupon plaintiff said to the nurse, "Cora, shut the door. It is getting awfully cold in here," and defendant's agent grabbed the door, saying, "Don't you shut the door on my hands." Plaintiff said to the nurse, "Shut the door on his hand if he don't take it out," and said to the defendant's agent, "You haven't any right to molest me when I am sick, and I don't use gas anyhow." To this defendant's agent replied, "By God, I don't know whether you do or not, and I am going to find out. That is what I am going to find out." Plaintiff relates defendant's agent said "that is what he was there for, and that, by God, he was going to find out, and I said, `For mercy sake, Cora, shut the door,' and he said, `God damn it, don't you shut the door on my hand,' and I said, `For goodness' sake tell him to go around the back and go in the way he has been coming in,'" whereupon defendant's agent desisted his attempt to go through plaintiff's apartment, and entered the basement by a side or back door, as was proper. The testimony discloses that the controversy between defendant's agent and plaintiff's nurse at the door continued for probably five minutes, that as a result thereof plaintiff became greatly frightened and shocked, and was seized immediately thereafter with a nervous chill. It seems that she had several chills during the evening, and suffered a miscarriage on the following day as a result of the excitement and fright occasioned by the conduct of defendant's agent in unlawfully attempting to enter her apartment. The nurse who attended plaintiff at the time gave testimony to the same effect as plaintiff, and her physician testified that in his opinion the miscarriage occurred as a result of the fright occasioned by the conduct of defendant's agent. It appears, too, that plaintiff was sick for a considerable period thereafter, and that her health is permanently impaired as a result of the misfortune.

Defendant insists the facts relied upon present no cause of action known under the various heads of tort, unless it be for an assault, and then proceeds to point out why no assault on plaintiff is shown by the proof. No one can doubt that the case fails to disclose an assault on plaintiff as the controversy was principally had with, and all the insulting language directed against, another, the nurse. However this may be, the facts reveal a valid ground of liability on the score of trespass, and this is true notwithstanding the damages laid are not for the commission of the initial act of trespass, but relate instead to its consequence alone. Although defendant's agent had a right to enter the basement beneath plaintiff's apartment for the purpose of reading the gas meter, it is entirely clear that he had no authority to enter or pass through plaintiff's flat for that purpose. She was not a consumer of gas, and the gas meter was in no sense connected with her household. Plaintiff is assured peaceful repose of her home against unwarranted intrusion from others. A trespasser is liable to respond in damages for such lnjuries as may result naturally, necessarily, directly, and proximately in consequence of his wrong. This is true for the reason the original act involved in the trespass is unlawful. Wyant v. Crouse, 127 Mich. 158, 86 N. W. 527, 53 L. R. A. 626. As to what matters do so result depends upon the particular facts of each case. The consequence may be one thing in one case and something different in another, but, be this as it may, if an injury is directly traceable to the unlawful invasion of plaintiff's right as the proximate cause, a recovery may be had therefor. It may be that fright is a necessary and natural result of a trespass committed upon one's dwelling by force or violence, and that the fright so entailed occasions a physical injury. If such be the case, then the injury or damage entailed as a result of the fright occasioned in the first instance by the mode or manner of the trespass is regarded as consequential to the trespass. Hickey v. Welch, 91 Mo. App. 4; McAfee v. Crofford, 54 U. S. 447, 14 L. Ed. 217; Lesch v. Great Northern, etc., Ry. Co., 93 Minn. 435, 101 N. W. 965; Brownback v. Frailey, 78 Ill. App. 262; Barbee v. Reese, 60 Miss. 906; Yoakum v. Kroeger (Tex. Civ. App.) 27 S. W. 953; Chicago, etc., Ry. Co. v. Hunerberg, 16 Ill. App. 387; Preiser v. Wielandt, 48 App. Div. 569, 62 N. Y. Supp. 890; 1 Cooley on Torts (3d Ed.) 95, 96, 97, 98. The doctrine is that, though a mere mental disturbance of itself may not be a cause of action in the first instance, fright and mental anguish are competent elements of damage if they arise out of a trespass upon the plaintiff's person or possession, and may be included in a suit for the trespass if plaintiff chooses so to do, or, if a physical injury results from such fright, a cause of action accrues from the trespass for compensation as to the physical injury and its consequences alone which may be pursued, even though plaintiff seeks no compensation for the original wrong. Hickey v. Welch, 91 Mo. App. 4; Larson v. Chase, 47 Minn. 307, 50 N. W. 238, 14 L. R. A. 85, 28 Am. St. Rep. 370; Meagher v. Driscoll, 99 Mass. 281, 96 Am. Dec. 759.

In instructing a verdict for defendant, it seems the trial court acted upon the general rule which obtains with respect to negligent torts as though the damages sought to be recovered were remote. It must be conceded that in such cases no cause of action exists for a mere mental disturbance such as fright or anguish not resulting from a physical injury unless it be in circumstances of malice, insult, or inhumanity directed against the plaintiff. Trigg v. St. Louis, etc., Ry. Co., 74 Mo. 147, 41 Am. Rep. 305; Connell v. Western Union Tel. Co., 116 Mo. 34, 22 S. W. 345, 20 L. R. A. 172, 38 Am. St. Rep. 575. And it is true it does not clearly appear in this case that the words of insult were directed against the plaintiff personally. In other words, the profane epithets and the disturbance of the peace, though in plaintiff's hearing,...