L. & N.R. Co. v. Roberts

• Decision Date: 13 February 1925
• Citation: 207 Ky. 310
• Parties: Louisville & Nashville Railroad Company v. Roberts.
• Court: Kentucky Court of Appeals

207 Ky. 310

Louisville & Nashville Railroad Company v. Roberts.

Court of Appeals of Kentucky.

Decided February 13, 1925.

Appeal from Letcher Circuit Court.

FIELDS, DAY & FIELDS, MORGAN & HARVIE and WOODWARD & WARFIELD for appellant.

FRENCH HAWK and R. MONROE FIELDS for appellee.

OPINION OF THE COURT BY JUDGE DIETZMAN — Affirming.

This case involves the application of the principles governing those cases of injuries that result from fright accompanied and unaccompanied by physical impact.

The origin of the doctrine denying recovery for physical injuries due to fright without impact occurred almost simultaneously in England and America. Victorian Railways Commissioners v. Coultas, 13 A.C. 222 (1888); Lehman v. Brooklyn City R.R. Co., 47 Hun. (N. Y. 1888) 355. These cases seem to have been rested in the main upon the proposition that no precedents were found to sustain such action. The Coultas case, after being questioned in Pugh v. London, etc., Ry. Co. (1896), 2 Q.B. 248; Wilkinson v. Downton (1897), 2 Q.B. 57, was finally repudiated in the case of Dulieu v. White & Sons (1901), 2 K.B. 669, and the doctrine is now established in England that there may be recovery for physical injuries resulting from nervous shock without impact.

In America, however, and in this state the rule laid down by the Lehman case supra has become the established doctrine. Ewing v. Pittsburg, etc., R. Co., 147 Pa. St. 40; Mitchell v. Rochester Ry. Co., 151 N.Y. 107; Spade v. Lynn and Boston R. Co., 168 Mass. 285; Kentucky Traction and Terminal Co. v. Bain, 161 Ky. 44; 170 S.W. 499; Smith v. Gowdy, 196 Ky. 281, 244 S.W. 678; McGee v. Vanover, 148 Ky. 737, 147 S.W. 742. Contra, Lindley v. Knowlton, 179 Cal. 298; Watson v. Dilts, 116 Iowa 249; Purcell v. St. Paul City R. Co., 48 Minn. 134; Mack v. South-Bound R. Co., 52 S.C. 323; Pankopf v. Hinkley, 141 Wis. 146.

The reasons usually assigned for the denial of recovery in this class of cases are that the damages resulting from the fright are too remote; that fright caused by negligence, not being itself a cause of action, none of its consequences can give a cause of action; and that to open the courts to this character of case would tend to promote fraud and the presentation of claims for injuries beyond the capacity of juries properly to assess. The criticism of these reasons on logical grounds and the answer to that criticism is probably best expressed by Justice Holmes of the supreme bench, when Chief Justice of Massachusetts, in the case of Smith v. Postal Tel. Cable Co., 174 Mass. 576, where he said that the refusal to grant relief in this character of cases "is not put as a logical deduction from the general principles of liability in tort, but as a limitation of those principles upon purely practical grounds."

This being true, the courts have not been inclined to extend the rule beyond its self-contained limitations and so these cases hold that, if there is an impact and fright coincident in point of time, recovery is allowed for the resulting shock and physical injuries, without inquiry as to whether the shock was caused by the concurrence of fright and impact, or by fright alone; the idea being that the impact removes the difficulty of proving the tort and damage that would otherwise present itself in the absence of impact. Thus in the case of McGee v. Vanover, supra, a leading case in this jurisdiction on the subject, the facts were that Mrs. Nancy Vanover brought suit against one McGee and one Evans in which she proved that McGee and Evans in her presence had assaulted her husband, and that, while engaged in the assault, Evans in order to reach her husband had pushed her to one side. McGee in the assault did not touch Mrs. Vanover. It was further shown that at this time Mrs. Vanover was enceinte, that she was much frightened by the assault, that immediately thereafter she became ill and later suffered a miscarriage. The court denied recovery against McGee, as there was no physical impact proved as to him, but sustained a recovery against Evans, which included compensation for the miscarriage. This court said:

"In our view of the case, the striking or pushing of the wife by Evans, whether intentional or otherwise, that he might get to and make an attack upon her husband, furnished the physical impact essential to her right of action; and if such physical impact alone, or together with his wrongful acts complained of, caused, in whole or in part, the fright and other injuries sustained by appellee, she was entitled to have the case go to the jury as to him. . . . If the violence done her person by the appellant Evans, and the fright resulting to her therefrom, as well as his other acts in that connection, caused the miscarriage, the miscarriage was but one of the injuries resulting from his wrongful acts, and any physical or mental suffering she may have endured from the miscarriage, or independently thereof, as the result of his wrongful acts, should have been considered by the jury in fixing the amount of the appellee's damages."

With these principles in mind, the present case is easy of solution. It appears that the husband of the appellee for some time prior to July 24, 1922, had been an employee of the appellant at Neon, Kentucky. For living quarters, it had furnished him with two box cars located on a dead track, which is a siding disconnected from the main line of the railroad. These box cars had been fitted up with doors and windows and even had a little back porch nailed to them. For the use of these cars appellee's husband paid the appellant rent. In the early part of July, 1922, there was a nation-wide strike by the employees of the railroads and in this strike the appellee's husband "went out." The appellant then promptly gave notice to appellee's husband and its other employees who occupied like house cars to vacate the premises. At this time, appellee was enceinte and expected the birth of her child in about a month's time. The appellee and her husband not vacating the property, the appellant, without resorting to the proper processes of law to dispossess them, undertook to accomplish this purpose itself and to that end laid plans to connect up the dead track, on which the cars in which appellee lived were located, to the main track in order to haul the cars away. There can be no question whatever but that just prior to its efforts to carry out these plans, appellant knew of the condition of appellee and the probable danger to her of the execution of these plans. Appellant's witness, M.F. Hall, testified that as early as July 2, 1922, he knew that appellee was pregnant, that her condition was manifest to anybody who looked at her, that about July 18th or 19th he conferred...