Fehely v. Senders

• Court: Supreme Court of Oregon
• Citation: 170 Or. 457,135 P.2d 283
• Parties: FEHELY <I>v.</I> SENDERS
• Decision Date: 16 March 1943

170 Or. 457 135 P.2d 283 FEHELY
v.
SENDERS Supreme Court of Oregon. Argued January 20, 1943. Reversed March 16, 1943.

Damages

1. One suffering injuries to his person because of another's negligence may recover damages for mental distress and anguish flowing from physical injuries directly and as natural consequence, whether present or fairly and reasonably to be apprehended.

Damages

2. An injured person's apprehension and anxiety as to some harm which may reasonably be expected to follow injury are "natural consequences of the injury", so as to authorize recovery of damages therefor from party responsible for injury.

Damages

3. An injured person should not be deprived of substantial compensation merely because he cannot prove extent of harm suffered with complete certainty, particularly where there can be no real equivalence between harm and compensation in money, as in case of emotional disturbance, or harm is of such nature as necessarily to prevent anything approximating accuracy of proof.

Damages

4. Mental anguish, not accompanying physical pain, though flowing from physical injury, is not too indefinite and remote to form basis for recovery of damages.

Damages

5. Apprehension by pregnant woman, personally injured, that harm to child may result from injuries, is such "mental anguish" as may properly be considered in estimating her damages.

Damages

6. In personal injury suit, extent of plaintiff's physical and mental suffering as result of injuries and compensation to be awarded her must be left to jury's sound judgment.

Damages

7. A jury's verdict, awarding housewife $1,500 damages for bruises to knee, thigh and head, cut ear, and abdominal blow, confining her to bed for two weeks and incapacitating her to do as much housework as formerly, and apprehension as to effects of such blow on herself and child, with which she was pregnant when injured held not so excessive as to indicate passion and prejudice.

Damages

8. In action for personal injuries to pregnant woman, absence of medical testimony that harm, which she apprehended might result to child from injuries, would probably follow therefrom, did not preclude submission to jury of evidence as to plaintiff's mental anguish because of such apprehension.

[170 Or. 458]

Damages

9. Emotional disturbances, which are wholly abnormal and unreasonable, conceding full weight to individuality, cannot be considered in determining damages caused by tortious conduct.

Damages

10. In action for personal injuries to pregnant woman, trial judge did not err in admitting evidence, and submitting to jury question, of plaintiff's mental anguish because of apprehension as to effect of injuries on unborn child.

Trial

11. In action for injuries to driver of automobile, with which one defendant's automobile collided after being struck in rear by automobile driven by codefendant, who was charged by complaint with negligence only in driving at unreasonable speed and failing to keep automobile under control, keep proper lookout, and decrease speed or swerve to avoid collision, instruction to find against such codefendant, if his negligence in failing to use outside traffic lane was sole proximate cause of accident, was erroneous as authorizing verdict against him on proof of negligence not alleged by plaintiff and submitting hypothesis calling for verdict in both defendants' favor.

Trial

12. In action for injuries to driver of automobile, with which one defendant's automobile collided after being struck in rear by automobile driven by codefendant, instruction that allegation in first defendant's answer that codefendant was negligent in failing to use outside traffic lane could not form basis of recovery by plaintiff, and that, if jury found that such negligence was sole proximate cause of accident, verdict would be against codefendant and in favor of plaintiff and first defendant, was erroneous as contradictory.

 See 15 Am. Jur. 593.
                 25 C.J.S., Damages, § 70.
                

Before BAILEY, Chief Justice, and BELT, ROSSMAN, KELLY, LUSK, BRAND and HAY, Associate Justices.

Appeal from Circuit Court, Multnomah County.

WALTER L. TOOZE, Judge pro tem.

Action by Lu Elda Fehely against William R. Senders and others for personal injuries sustained in

[170 Or. 459]

an automobile accident. From a judgment for plaintiff against named defendant, he appeals.

REVERSED.

James Arthur Powers, of Portland, for appellant.

James C. Dezendorf, of Portland (Dey, Hampson & Nelson, and Clarence J. Young, all of Portland, and Richard B. Maxwell, of Klamath Falls, on the brief), for respondent.

LUSK, J.

This action was brought to recover damages for personal injuries growing out of an automobile accident. There were three automobiles involved — one driven by the plaintiff Lu Elda Fehely; another driven by the defendant William R. Senders, allegedly on behalf of the defendant Lang, Senders & Co.; and the third driven by John J. Foy, allegedly on behalf of the defendant Consolidated Supply Company. On the trial the court granted a judgment of involuntary nonsuit in favor of the defendant Lang, Senders & Co., and submitted the case to the jury as to the other two defendants. The jury, by its verdict, exonerated Consolidated Supply Company and found in favor of the plaintiff and against the defendant William R. Senders. From the consequent judgment the defendant Senders has appealed.

The admission of evidence of mental anguish, claimed to have been suffered by the plaintiff as the result of her injuries, is assigned as error. The plaintiff was six months in pregnancy at the time of the accident. Her injuries consisted of bruises on the left side of her body to the knee, thigh, and head, a cut ear, and a blow on the abdomen caused by striking against the steering wheel of the automobile she was driving. On the advice of her physician she remained

170 Or. 460

in bed for two weeks after the accident. Her physician also advised her not to use the steps which led to a house-boat on the river where she lived, and for that reason she did not return to the house-boat but moved to her mother's home where she stayed until after the child was born. She was not able to do as much housework as formerly, and was rendered nervous and continued to be so until the birth of the child. She did not sleep well. She testified, over objection, that she was afraid of what the blow on her abdomen might do to the child or might do to herself. This apprehension continued until the baby came and for a few days thereafter, because, as she said, "I didn't know just how the baby was coming out after it got here." There was a normal delivery and normal baby.

The precise question here for decision is whether the apprehension (which in this instance proved to be groundless) of a pregnant woman that her child may be born dead or deformed as the result of an injury to her person is an element of damage. The question has never been passed on by this court, but in a number of other jurisdictions the right to recover damages for mental distress of this character has been sustained. Bowley v. Duca, 80 N.H. 548, 120 Atl. 74; Prescott v. Robinson, 74 N.H. 460, 69 Atl. 522, 17 L.R.A. (N.S.) 594; Elliott v. Arrowsmith, 149 Wash. 631, 272 P. 32; Gagnon v. Rhode Island Co., 40 R.I. 473, 101 Atl. 104, LRA 1917 E 1047; Macke v. Sutterer, 224 Ala. 681, 141 So. 651; Davis v. Murray, 29 Ga. App. 120, 113 S.E. 827; Selman v. Cockrell (La. App.), 198 So. 785; Gares v. Abate (La. App.), 189 So. 165; Muller v. Herrin Motor Lines (La. App.), 184 So. 406. The only contrary decision of which we are aware is Nevala v. Ironwood, 232 Mich. 316, 205 N.W. 93, 50 A.L.R. 1189, where the court likened the case to one

170 Or. 461

in which a woman who suffered a miscarriage as a result of an assault was denied recovery for consequent grief over the loss of offspring, and said:

"If grief over actual loss of offspring is too delicate a subject to be weighed by any scales the law has at its command, surely mere apprehensions, proven by time to have been borrowed trouble, are outside the realm of pecuniary compensation."

1. It is established by the decisions of this court that one suffering from injuries to his person due to the negligence of another may recover for mental distress and anguish which directly and as a natural consequence flows from the physical injury whether present or fairly and reasonably to be apprehended. Smith v. Pacific Northwest Public Service Co., 146 Or. 422, 435, 29 P. (2d) 819; Perry v. Pickwick Stages, 117 Or. 598, 605, 243 P. 787; Rostad v. Portland Ry., L. & P. Co., 101 Or. 569, 581, 201 P. 184; Coffey v. Northwestern Hospital Association, 96 Or. 100, 115, 183 P. 762, 189 P. 407; Adams v. Brosius, 69 Or. 513, 517, 139 P. 729, 51 L.R.A. (N.S.) 36; Boatright v. Portland Ry., L. & P. Co., 68 Or. 26, 29, 135 P. 771; Maynard v. Oregon Railroad Co., 46 Or. 15, 18, 78 P. 983, 68 L.R.A. 477. This is the general rule (15 Am. Jur., Damages, 592, § 175; 1 Sedgwick on Damages (9th Ed.) 62, 43i); but there is a marked difference in judicial attitude toward the question of what character of mental suffering is to be regarded as the natural result of a physical injury. The varying views of the courts are well summarized in Am. Jur., id., 606, § 187, as follows:

"Some courts regard grief, anxiety, worry, mortification, and humiliation which a person suffers by reason of physical injury as component parts of the mental suffering for which damages may be allowed. Others take the view that mental

170 Or. 462

distress or anguish produced by the operation of the mind in the contemplation of the physical condition to which the injured party is reduced, or in contemplation of any extraneous suffering or inconvenience that such condition might entail, whether it respects the person himself or others, is not to be considered as the natural result of the defendant's wrongful act, and is not a proper element of damages."

This court has...