Kirby v. Jules Chain Stores Corporation

• Decision Date: 16 December 1936
• Docket Number: 530.
• Citation: 188 S.E. 625,210 N.C. 808
• Parties: KIRBY v. JULES CHAIN STORES CORPORATION et al.
• Court: North Carolina Supreme Court

188 S.E. 625

210 N.C. 808

KIRBY v. JULES CHAIN STORES CORPORATION et al.

No. 530.

Supreme Court of North Carolina

December 16, 1936

Appeal from Superior Court, Mecklenburg County; T. J. Shaw Emergency Judge.

Action by Estelle Kirby against the Jules Chain Stores Corporation and another. Judgment for plaintiff, and defendants appeal.

No error.

Whether fright caused by collecting agent's conduct in calling pregnant woman a deadbeat and threatening to have her arrested resulted in premature birth of dead child held for jury on conflicting testimony in her action against principal and agent for trespass to person.

Civil action for willful trespass to the person.

Plaintiff purchased a dress and a hat from the corporate defendant in the summer of 1933, to be paid for on the installment plan. The account originally amounted to $13.98 or $14.98, but had been reduced by some payments.

On July 5, 1934, S. M. Russell, collecting agent of the corporate defendant, went to the home of the plaintiff, who was living with her parents at the time, and asked if she had anything to pay on her account. Plaintiff replied that she did not, as she was then not able to work, being in her seventh month of pregnancy, but that she would pay as soon as she could. Russell, without getting out of his automobile, which was about fifteen feet from the plaintiff, is alleged to have retorted: "By G ------ you are like all the rest of the damn deadbeats. You wouldn't pay when you could. * * * If you are so damn low you won't pay, I guess when I get the sheriff and bring him down here, you will pay then."

Plaintiff testifies: "He said he was going right then and send the sheriff after me, and scared me to death. He said, By G ---- he was going to bring the sheriff down there and arrest me said guess I'd pay then. * * * He called me a deadbeat. * * * He repeated it three or four times, and, as he drove off that is what he said. * * * He didn't get out of the car he just hollered at me."

About two weeks prior to this, plaintiff's father had ordered the defendant Russell, who was then trying to collect on the account, to leave the premises because of plaintiff's condition, and Russell's profanity and apparent anger. On the occasion in question, the plaintiff, her mother and sister were the only persons in the house. "There were no menfolks at home."

Continuing plaintiff says: "Then I took sick in about two hours after he left, real sick. * * * I had been feeling good up to that time. * * * From that time on, I was in pain and on the following Wednesday night my child was prematurely born. It was dead."

Dr. G. W. Black testifies that in his opinion the fright occasioned by the conduct of the defendant Russell could have produced the premature birth of plaintiff's child.

There was denial of the plaintiff's testimony by the defendant Russell; and Dr. Nance, who attended the plaintiff at the birth of her child on July 12, 1934, testifies: "I have an opinion satisfactory to myself. * * * The baby appeared to be fully developed. * * * Birth apparently not premature. * * * It was a breach presentation. * * * Death due to contraction of cervix around baby's neck. * * * Nothing to indicate a miscarriage."

The jury answered the issue of liability in favor of the plaintiff and assessed her damages at $1,000. From judgment thereon, the defendants appeal, assigning errors.

Tillett, Tillett & Kennedy and John A. Kleemeier, Jr., all of Charlotte, for appellants.

Carswell & Ervin, of Charlotte, for appellee.

STACY, Chief Justice (after stating the case).

At the outstart of the argument in this court, the defendants interposed a demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. This must be overruled. The case is controlled by the principles announced in Freeman v. Acceptance Corporation, 205 N.C. 257, 171 S.E. 63, Beasley v. Byrum, 163 N.C. 3, 79 S.E. 270, May v. Tel. Co., 157 N.C. 416, 72 S.E. 1059, 37 L.R.A. (N.S.) 912, Arthur v. Henry, 157 N.C. 438, 73 S.E. 211, Kimberly v. Howland, 143 N.C. 398, 55 S.E. 778, 7 L.R.A. (N.S.) 545, Watkins v. Mfg. Co., 131 N.C. 536, 42 S.E. 983, 60 L.R.A. 617, rather than by the decision in Anthony v. Protective Union, 206 N.C. 7, 173 S.E. 6, or the holding in Kaylor v. Sain, 207 N.C. 312, 176 S.E. 560.

The gravamen of plaintiff's cause of action is trespass to the person. Duncan v. Stalcup, 18 N.C. 440; 63 C.J. 891. This may result from an injury either willfully or negligently inflicted. May v. Tel. Co., supra.

The leading case on the subject is Hill v. Kimball, 76 Tex. 210, 13 S.W. 59, 7 L.R.A. 619, where the petition was held to be good as against a demurrer, which contained averments to the effect that plaintiffs were husband and wife, in possession of a dwelling house as tenants of defendant; that the feme plaintiff was well advanced in pregnancy, which fact was known to the defendant, who also knew the probable effects upon feme plaintiff of any undue excitement; that defendant came to the premises and in the the immediate presence of feme plaintiff assaulted two negroes in a boisterous and violent manner, which assault was accompanied with profane language and resulted in drawing blood; and that, as a consequence, feme plaintiff was greatly frightened, which brought on pains of labor, and eventually produced a miscarriage, and otherwise seriously impaired her health.

In holding that the plaintiffs could recover, the court said: "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 intentionally 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. Probably an action will not lie when there is no injury except the suffering of the fright itself, but such is not the present case. Here, according to the allegations in the petition, the defendant has produced a bodily injury by means of that emotion, and it is for that injury that the recovery is sought."

Likewise, in Engle v. Simmons, 148 Ala. 92, 41 So. 1023, 7 L.R.A. (N.S.) 96, 121 Am.St.Rep. 59, 12 Ann.Cas. 740, which was an action "for an injury to the plaintiff," it was held (as stated in the second headnote): "A man entered the dwelling house occupied by a married woman, far advanced in pregnancy, and after being informed that the husband was absent, and after being requested to leave the house, he refused to do so, took an inventory of the household effects, and made threats in reference as to what he would do in reference to a collection of a debt against the husband. The woman was thrown in a nervous excitement, and labor pains, resulting in the premature birth of a child, were brought on. Held, the person entering the house was liable for the bodily pain the woman suffered, though he inflicted no physical violence."

In commenting on the fact that physical violence to the person was not necessary to make out the case, the court said: "The plaintiff here was in her home, and had a right to the peaceful and undisturbed enjoyment of the same, and any unlawful entry or invasion thereof, which produced physical injury to her, whether by direct personal violence, or through nervous excitement the proximate result of the wrongful acts of the defendant, was a wrong for which she is entitled to recover."

Again, in Purcell v. Ry. Co., 48 Minn. 134, 50 N.W. 1034, 16 L.R.A. 203, the plaintiff, a pregnant woman, was frightened by the negligent conduct of the defendant in running its cars, miscarried, and suffered permanent injury. Held, that a cause of action would lie. Compare Nelson v. Crawford, 122 Mich. 466, 81 N.W. 335, 80 Am.St.Rep. 577.

The doctrine of Hill v. Kimball has not been universally...