Legac v. Vietmeyer Bros., Inc.

• Citation: 147 A. 110
• Decision Date: 25 July 1929
• Docket Number: No. 450.,450.
• Parties: LEGAC v. VIETMEYER BROS., Inc.
• Court: New Jersey Supreme Court

147 A. 110

LEGAC

v. VIETMEYER BROS., Inc.

No. 450.

Supreme Court of New Jersey.

July 25, 1929.

Appeal from District Court of Hoboken.

Action by Mary Legac against Vietmeyer Bros., Inc. From a judgment for plaintiff, defendant appeals. Reversed.

Argued January term, 1929, before TRENCHARD, KALTSCH, and LLOYD, JJ.

McDermott, Enright & Carpenter, of Jersey City (James D. Carpenter, of Jersey City, of counsel), for appellant.

John J. Fallon, Jr., of Hoboken, for appellee.

PER CURIAM. This is the appeal of the defendant below from a judgment of the Hoboken district court in favor of the plaintiff, rendered by the judge sitting without a jury.

The plaintiff instituted suit against the defendant, alleging as follows: That on July 25, 1927, the plaintiff purchased a loaf of defendant's bread from a retailer; that the plaintiff sliced the bread for use at her table; that while eating, or about to eat, one of the slices, she discovered therein or thereon a bug; that plaintiff, upon seeing the bug, became sick to her stomach, vomited, and was sick for some five days thereafter. The evidence at the trial tended to support such allegations. It appeared, also, that the plaintiff had had one or more operations, which made her stomach somewhat weak.

The court refused defendant's motion for a nonsuit, and defendant took an exception, and that action of the trial judge is stated as a ground of appeal. We think that the court erred in refusing the defendant's motion for a nonsuit, under the rule laid down in Ward v. West Jersey & Seashore R. Co., 65 N. J. Law, 383, 47 A. 561. There the plaintiff was allowed to drive upon defendant's railroad tracks at a crossing, and defendant thereupon lowered the gates. The plaintiff was frightened and shocked, through fear of being struck by an approaching train, and as a result suffered physically. Chief Justice Gummere in his opinion therein says'

"The question which the demurrer presents is this: Whether, in an action for negligence, the mere apprehension of personal injuries, which are not in fact received, will support an action, when physical suffering follows as a consequence of the mental disturbance. It seems to be universally conceded that mere fright from which no sub-sequent physical suffering results, affords no ground for action; but, in cases where physical injuries follow therefrom, the decisions are not harmonious. In my judgment, however, those cases which hold to the view that there can be no recovery...