Mccardle v. George B. Peck Dry Goods Co.

• Decision Date: 14 June 1915
• Docket Number: No. 11651.,11651.
• Citation: 177 S.W. 1095,191 Mo. App. 263
• Parties: McCARDLE v. GEORGE B. PECK DRY GOODS CO.
• Court: Missouri Court of Appeals

177 S.W. 1095

191 Mo. App. 263

McCARDLE v. GEORGE B. PECK DRY GOODS CO.

No. 11651.

Kansas City Court of Appeals. Missouri.

June 14, 1915.

Appeal from Circuit Court, Jackson County; Joseph A. Guthrie, Judge.

Action by Battle McCardle against the George B. Peck Dry Goods Company. From a judgment for plaintiff, defendant appeals. Plaintiff permitted to file remittitur, and judgment affirmed.

McCune, Harding, Brown & Murphy, of Kansas City, for appellant. Boyle & Howell, of Kansas City, for respondent.

ELLISON, P. J.

Plaintiff's action is based on loss of services of his wife, occasioned by injuries he alleges she received through the negligence of defendant. He recovered judgment in the circuit court.

Defendant is proprietor of a large retail mercantile establishment in Kansas City, and operates elevators to carry customers to and from the different floors of the building. It ]was in one of these elevators that plaintiff claims his wife was injured, by reason of its being allowed to fall to the bottom of the shaft. The evidence is abundant that the elevator in which she entered did not descend properly, either from defects in the structure itself or some of the apparatus connected with it. On more than one occasion it could not be stopped, and had struck the bottom with such force as to break the mirror in the car.

Defendant insists that whatever the wife suffered at the time, in addition to ailments with which she was then already afflicted, was caused by fear and fright, and that whatever inconvenience or bodily derangement she may have suffered since was the result of nervous fright, unaccompanied by bodily injury, at the time, and that for such misfortune it is not liable. On the other hand, plaintiff contends that the terrifying situation in which his wife was placed and the sudden impact of the elevator with the bottom of the shaft caused great fright, and at the same time inflicted bodily injury, from which continued mental suffering and bodily distress developed. These are the lines of dispute between the parties.

If defendant is right on the facts, the judgment is without legal support and should be reversed. For the law is that mere fright and mental distress, though caused by negligence, will not support a cause of action. Connel v. Western Union, 116 Mo. 34, 22 S. W. 345, 20 L. R. A. 172, 38 Am. St. Rep. 575; Strange v. Railroad, 61 Mo. App. 586; Crutcher v. Railroad, 132 Mo. App. 311, 111 S. W. 891; Dye v. Railroad, 135 Mo. App. 254, 115 S. W. 497; Morris v. Railroad, 228 Pa. 198, 77 Atl. 445; Huston v. Freemansburg, 212 Pa. 548, 61 Atl. 1022, 3 L. R. A. (N. S.) 49; Ewing v. Railroad, 147 Pa. 40, 23 Atl. 340, 14 L. R. A. 666, 30 Am. St. Rep. 709; Mitchell v. Railroad, 151 N. Y. 107, 45 N. E. 354, 34 L. R. A. 781, 56 Am. St. Rep. 604; Reed v. Ford, 129 Ky. 471, 112 S. W. 600, 19 L. 11. A. (N. S.) 225; White v. Sander, 168 Mass. 296, 47 N. E. 90; Spade v. Railroad, 168 Mass. 285, 47 N. E. 88, 38 L. R. A. 512, 60 Am. St. Rep. 393.

But if, besides fright, the negligent act inflicts physical injury, external or internal, then fright, mental distress or anguish, and further resulting bodily ailments, even though attributable to the fright, attach to the original physical injury, and the whole may be considered in the allowance of damages. Porter v. Railroad, 73 N. J. Law, 405, 63 Atl. 860; Kennell v. Gershonovitz, 84 N. J. Law, 577, 87 Atl. 130; Shay v. Railway Co., 66 N. J. Law, 334, 49 Atl. 547; Conley v. United Drug Co., 218 Mass. 238, 105 N. E. 975; Folk v. Railroad, 99 S. C. 277, 83 S. E. 452; and authorities hereinafter cited.

The rule of law, in this respect, may be stated in this way: If the negligent act causes fright and terror, but not bodily injury, there is no liability, though bodily injury should result from the fright. But, if the negligence causes physical injury and fright, there is liability for both; and the injuries, physical and nervous, which are caused by and follow the fright, also are elements of damage.

Now, to which branch of the law do the facts of the case apply? Plaintiff's wife was on the second floor of the building. She entered the elevator to descend to the street floor. There were others in the elevator. The operator failed to stop at the street floor, but passed it rapidly, and struck the bottom of the shaft in the basement below. The language of an eyewitness (an elevator boy) who stood in the basement, at the elevator shaft, was that:

"Instead of stopping at the first floor, it came on down and hit the bottom with a crash, and I heard a woman scream and a little baby started to crying."

Other witnesses, one of them a friend of plaintiff's wife, and whom the latter had left on the second floor, heard the screams of women and then the "crash." She knew something had happened, and ran down the stairway to the first floor, crying. The operator left the elevator, and the other operator, who was standing in the basement at the bottom of the shaft, took charge and ran back to the first floor, when plaintiff's wife got out and met her friend whom she had left a moment before on the second floor. This friend testified that she was "white, trembling, and could hardly wale." They went into a store next door. The witness said she was "pale and sick and could not go...