Hughes v. Moore

• Citation: 197 S.E.2d 214,214 Va. 27
• Parties: Toy E. HUGHES v. Sue Etta MOORE.
• Decision Date: 11 June 1973
• Court: Supreme Court of Virginia

Page 214

197 S.E.2d 214

214 Va. 27

Toy E. HUGHES v. Sue Etta MOORE.

Supreme Court of Virginia.

June 11, 1973.

Rehearing Denied Sept. 7, 1973.

Charles B. Flannagan, II, Francis W. Flannagan, Bristol (Woodward, Miles & Flannagan, Bristol, on brief), for plaintiff in error.

Glen M. Williams, Jonesville, for defendant in error.

Before SNEAD, C.J., and I'ANSON, CARRICO, HARRISON, COCHRAN, HARMAN and POFF, JJ.

I'ANSON, Justice.

Plaintiff, Sue Etta Moore, brought this action to recover for personal injuries sustained as a consequence of fright and shock caused when an automobile driven by the defendant, Toy E. Hughes, crashed into the front porch of her home. A jury trial resulted in a verdict for the plaintiff for the sum of $12,000. Judgment was entered on the verdict, and defendant is here on a writ of error.

Defendant contends (1) that there can be no recovery for personal injuries negligently caused in the absence of contemporaneous physical contact with the person; (2) that testimony of the odor of alcohol on defendant's breath was improperly admitted in evidence; (3) that the court should have sustained his motions for a mistrial because of certain improper and prejudicial testimony given by witnesses in the presence of the jury; (4) that the evidence was insufficient to support the jury's verdict; and (5) that the verdict was excessive.

The evidence shows that about 11:30 p.m., on May 2, 1970, while defendant was operating his automobile along a highway near St. Charles, in Lee County, Virginia, he ran the car off the road, struck an automobile parked in the driveway of plaintiff's home, and crashed into the house which was set back approximately 35 feet from the highway.

The State trooper who investigated the accident found pressure or skid marks made by defendant's car extending a distance of approximately 285 feet on and off the paved portion of the highway and across plaintiff's property to the point of impact with her house.

Plaintiff was standing in a doorway of her house between the kitchen and living room, looking through a picture window, when she heard a noise and saw the headlights of defendant's car shining into her living room. The car crashed into the front porch of the house, and after the initial collision the car moved back and forth against the porch several times. Plaintiff said that she 'froze in her tracks' and screamed. Immediately thereafter she became weak and felt as if her legs were going to fold under her. She became very nervous, could not sleep that night, and had pains in her chest and arms as the result of the collision. Although she received no physical injury from without, she could not breast-feed her three-month-old baby for lack of milk, and her menstrual period started.

Plaintiff consulted Dr. Daniel P. Gabriel, her family physician, on May 4, 1970. Dr. Gabriel testified that plaintiff was highly nervous. She was unable to breast-feed her baby and the child was put on a bottle. Her menstrual period had begun, which is not normal for a mother during the period of nursing her child, and the flow was excessive. He prescribed hormones for her 'diminishing breasts.' He treated plaintiff for several weeks but her nervousness worsened, and he referred her to Dr. Pearce Nelson, a psychiatrist.

Dr. Nelson diagnosed plaintiff's condition as 'anxiety reaction, with phobia and hysteria.' He testified that she was experiencing physical pain in her body from the emotional disturbance and that her condition presented a serious mental problem. The pain was real, and 'not imaginary.' After treating plaintiff over a period of several months, he said her prognosis was good but that if anything happened to upset her emotionally she would return to her previous physical and nervous condition. He was definitely of the opinion that there was a 'causal connection' between the automobile striking plaintiff's home and her emotional and physical condition.

Plaintiff testified at the trial, nearly two years after the accident, that her condition had improved but she was still very nervous. She was continuing to take medication prescribed by Dr. Nelson. Her menstrual periods were still irregular and her bust was smaller than its normal size. Before the automobile struck her home she was in good physical and mental condition.

Defendant testified that his speed was 25 miles an hour. He said a woman ran across the road in front of him, causing him to swerve his car and lose control of it. He denied that he left the skid marks testified to by the State trooper. His brother, who was a passenger in the car, corroborated defendant's testimony.

Defendant, by counsel, says that under Virginia law there can be no recovery for negligently caused mental or emotional disturbances in cases not involving a willful, wanton or vindictive wrong, unless there has been a contemporaneous physical injury to the person. Thus he argues that since this action is based on negligence and there was no physical impact upon the plaintiff, and no willful, wanton or vindictive wrong was committed, the plaintiff cannot recover in this case. In support of his position he relies on Bowles v. May, 159 Va. 419, 433, 166 S.E. 550, 555 (1932); Moore v. Jefferson Hospital, Inc., 208 Va. 438, 158 S.E.2d 124 (1967); Soldinger v. United States, 247 F.Supp. 559 (E.D.Va.1965); Ferrell v. Chesapeake & Ohio Ry. Emp. Hosp. Ass'n, 336 F.Supp. 833 (W.D.Va.1971).

In Bowles the plaintiff claimed that defendant's threatening remarks and gestures caused her to become extremely nervous and emotionally upset. She subsequently suffered a stroke of paralysis which she claimed was causally related to the defendant's threats. In the course of the opinion this court said:

'. . . (I)n Virginia . . . there can be no recovery for mental anguish and suffering resulting from negligence unaccompanied by contemporaneous physical injuries to the person.' 159 Va. at 433, 166 S.E. at 555.

'It is now a well accepted-fact that terror or a severe mental shock may be the direct and proximate cause of wreck to the nervous system, the consequence of which may be a visible physical injury. When such fright is due to a willful, wanton and vindictive wrong, recovery is generally permitted, notwithstanding the fact that there is no contemporaneous injury from without . . ..' 159 Va. at 437, 166 S.E. at 556.

The opinion further stated:

'This case, which is the first of the kind to reach this court, falls within a class which is not favored. While the possible success of unrighteous or groundless actions should not bar recovery in a meritorious case, nevertheless, because of the fact that fright or mental shock may be so easily feigned without detection, the court should allow no recovery in a doubtful case. The plaintiff should be required to prove by clear and convincing evidence, (1) the commission of the wrongful act; and (2) a chain of unbroken causal connection between the alleged act and the physical injury.' 159 Va. at 438, 166 S.E. at 557.

In reversing a judgment for the plaintiff, this court stated that each case is governed by its own particular facts, and held that the evidence did not support a finding that there was a causal connection between the alleged insulting words and the stroke.

We held in Moore, supra, that an allegation in a motion for judgment charging willful, wanton and vindictive acts causing terror or mental shock which proximately caused injury to the plaintiff sufficiently alleged an intentional tort, notwithstanding the fact that there was no physical contact, and that the trial court erred in sustaining a demurrer to the motion for judgment. 208 Va. at 441, 158 S.E.2d at 127.

Soldinger and Ferrell construed Bowles to mean that there can be no recovery for mental anguish and suffering resulting from negligence unaccompanied by contemporaneous physical injuries to the person absent a willful, wanton and vindictive wrong.

On the other hand, in Penick v. Mirro, 189 F.Supp. 947 (E.D.Va.1960), Bowles was construed to mean that it is not necessary to the creation of a right to reimbursement for negligently caused mental or emotional disturbance, even when the act is not willful or wanton, that there be actual impact of the tortfeasant instrument upon the plaintiff's body. The court said that the important question was whether the 'damage' was of substance and sufficiently identifiable in the person of the claimant. It further observed that recovery in Bowles was denied solely on the basis of the insufficiency of the evidence to establish any wrongdoing on the part of the defendant.

Admittedly Bowles is not clear, and it is subject to conflicting constructions. But from a consideration of all that was said in Bowles it may be construed to mean that there can be recovery for a negligently caused mental or emotional disturbance and its physical consequences to the person, unaccompanied by contemporaneous physical injury, absent a willful, wanton or vindictive wrong, provided it is alleged and proved by clear and convincing evidence that a wrongful act was committed and that there was an unbroken causal connection between the alleged act and the physical injury.

Since Bowles there have been significant trends and developments in the law relating to the 'impact rule' which were not referred to in the briefs of the parties. Thus in order to clarify the rule in Virginia, we deem it important to consider the origin of the rule, the reasons therefor, and its present status in other jurisdictions dealing with the issue. ¹

The landmark decision of Victorian Railways Commissioners v. Coultas, 13 App.Cas. 222 (Eng. 1888), has been cited as the leading case for the proposition that there can be no recovery for the physical results of mental anguish without impact. ² There recovery for damage to plaintiff's nervous system caused by defendant's oncoming train was denied upon the ground that:

'Damages arising from mere sudden terror...