Kisiel v. Holyoke St. Ry. Co.

• Decision Date: 27 October 1921
• Citation: 132 N.E. 622,240 Mass. 29
• Parties: KISIEL v. HOLYOKE ST. RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

240 Mass. 29

132 N.E. 622

KISIEL

v.HOLYOKE ST. RY. CO.

Supreme Judicial Court of Massachusetts, Hampden.

Oct. 27, 1921.

Exceptions from Superior Court, Hampden County; Robert F. Raymond, Judge.

Action by Luvius Kisiel against the Holyoke Street Railway Company. Verdict for plaintiff, and defendant brings exceptions. Exceptions overruled.

Thomas C. Maher, of Holyoke, for plaintiff.

Brooks, Kirby, Keedy & Brooks, of Springfield, for defendant.

JENNEY, J.

The plaintiff seeks to recover damages for an injury claimed to have been received by her by reason of a rear end collision between cars of the defendant. No question arises of the due care of the plaintiff or negligence for which the defendant is liable. The main contention is whether the plaintiff's injury was caused wholly by fright and nervous shock or from force applied directly to her in such a degree as to entitle her to recover the damages caused as the direct result of the collision, and also those resulting from nervous shock and mental disturbance.

In this commonwealth it is settled beyond doubt that, in actions for injury by negligence such as is here involved, there can be no recovery for ‘fright, terror, alarm, anxiety, or distress of mind, if these are unaccompanied by some physical injury’ from without to the person; but in case there is such injury damages are assessed with reference to the results immediately arising therefrom and from those ‘attributable to the mental shock or disturbance.’ Spade v. Lynn & Boston Railroad, 168 Mass. 285, 47 N. E. 88,38 L. R. A. 512, 60 Am. St. Rep. 393;Mullin v. Boston Elevated Railway, 185 Mass. 522, 70 N. E. 1021;Driscoll v. Gaffey, 207 Mass. 102, 92 N. E. 1010. Such physical injury need not be indicated upon the surface of the body by bruises or otherwise. Driscoll v. Gaffey, supra. It may be caused by a fall, when by reason of fright one faints. Conley v. United Drug Co., 218 Mass. 238, 105 N. E. 975, L. R. A. 1915D, 830. It may be slight so far as the physical injury is concerned. Hunnawell's Case, 220 Mass. 351, 107 N. E. 934;Megathlin v. Boston Elevated Railway, 220 Mass. 558, 108 N. E. 362;McCarthy v. Boston Elevated Railway, 223 Mass. 568, 112 N. E. 235. See also Berard v. Boston & Albany Railroad, 177 Mass. 179, 58 N. E. 586;Cameron v. New England Telephone & Telegraph Co., 182 Mass. 310, 65 N. E. 385. While under the decisions above cited, mental suffering or other injury akin thereto does not constitute an independent cause of action, largely because of the ‘remoteness of such damages and * * * the metaphysical character of such injury,’ if there was an actual invasion of the plaintiff's rights by the appreciable and wrongful application of violence to her body causing mental suffering or like injury as its proximate result, such element may be considered in assessing damages. See Stiles v. Municipal Council of Lowell, 233 Mass. 174, 185, 123 N. E. 615, 4 A. L. R. 1365;Warren v. Boston & Maine Railroad, 163 Mass. 484, 487, 40 N. E. 895;Steverman v. Boston Elevated Railway 205 Mass. 508, 91 N. E. 919. As said by Holmes, C. J., in Homans v. Boston Elevated Railway, 180 Mass. 456, 457, 62 N. E. 737,57 L. R. A. 291, 91 Am. St. Rep. 324:

‘It is an arbitrary exception, based upon a notion of what is practicable, that prevents a recovery for visible illness resulting from nervous shock alone.'

See Driscoll v. Gaffey, supra. In the Homans Case, it was recognized that the ultimate basis of the rule was whether there had been a wrongful application of force to the plaintiff. The opinion states:

‘But when there has been a battery and the nervous shock results from the same wrongful management as the battery, it is at least equally impracticable to go further and to inquire whether the shock comes through the battery or along with it. Even were it otherwise, recognizing as we must the logic in favor of the plaintiff when a ramedy is denied because the only immediate wrong was a shock to the nerves, we think, that when the reality of the cause is guaranteed by proof of a substantial battery of the person there is not occasion to press further the exception to general rules.'

In the case now to be decided it is necessary to consider this question broadly, as the judge, after instructing the jury specifically and in detail that unless there was a physical injury the plaintiff could not recover for fright, further said that to constitute physical injury there need not be ‘a bruise or a break’ or any injury showing objectively. He defined physical injury as follows:

‘What is an injury? It is a wrong; it is the violation of a legal right. Now to come home to this case again, with the definition or statement of a simple principle, the injury, the physical injury is the violation of a legal right. What was the legal right of this woman? It was to be carried safely so far as her person was concerned. Is there any evidence that her person, which she had a right to hold sacred against the unlawful touch of anybody, that her person was interfered with? As I recall, and yet I want you to bear in mind that it is for you to say, there was some testimony that when that bump took place she was thrown over against her neighbor at one side and perhaps back against her neighbor at the other, although I am not at all certain about the latter; I want you to bear in mind about both; that she had something in her lap which fell or dropped upon her, * * * bear in mind just what the testimony was therein, if there was testimony to that fact, and you believe that, so that this bump or collission which you have found was an unlawful bump or collision, a thing that they had no right to do, taking into consideration the safety with which they ought to carry their passengers, if you find that there was a wrongful interference with the freedom and the safety with which that woman had a right to ride, you may say that that was a physical injury, a physical violation of her rights in the case, and infringement of the right to safety which she had when she became a passenger on the car. * * * Now in this case the law says that for the fright the woman shall not recover damages unless that is accompanied with physical injury, with...