McGee v. Vanover

• Decision Date: 05 June 1912
• Citation: 147 S.W. 742,148 Ky. 737
• Parties: McGEE et al. v. VANOVER.
• Court: Kentucky Court of Appeals

147 S.W. 742

148 Ky. 737

McGEE et al. v. VANOVER.

Court of Appeals of Kentucky.

June 5, 1912

Appeal from Circuit Court, Laurel County.

Action by Nancy Vanover against Mike McGee and another. Judgment for plaintiff, and defendants appeal. Affirmed as to defendant J E. Evans, and reversed and remanded as to defendant McGee.

O'Rear & Williams, of Frankfort, and W. E. Begley, of London, for appellants.

George G. Brock and Reams & Settle, all of London, for appellee.

SETTLE J.

The appellee, Nancy Vanover, with her husband, A. L. Vanover, by this action, brought in the court below for the benefit of the former, recovered of the appellants, Mike McGee and J. E Evans $500 damages resulting to her from an assault and battery alleged to have been committed by Evans upon her, and by Evans and McGee upon her husband, in her presence; and from the judgment entered upon the verdict for that amount the latter have appealed.

It was in substance alleged in the petition that the appellants McGee and Evans, at Laurel Creek Church, in Laurel county, unlawfully assaulted, beat, and bruised A. L. Vanover, in the appellee Nancy Vanover's presence, and that the appellant Evans while engaged in the assault upon the husband struck, pushed, and injured her. It was further alleged in the petition that the appellee, Nancy Vanover, was at the time enceinte, and that she was greatly frightened by the conduct of the appellants in assaulting and beating her husband, and also frightened and injured by the act of appellant Evans in striking and shoving her, by which fright thus occasioned by the joint acts and conduct of the appellants, and the striking and pushing of her by the appellant Evans, she was immediately, and for three weeks thereafter, continuously subjected to great physical and mental suffering, which caused the premature birth of her child, commonly called an abortion or miscarriage. The joint answer of the appellants simply traversed the averments of the petition.

According to the evidence, the appellant McGee entertained ill will toward A. L. Vanover, which he manifested upon two occasions within a week of the difficulty by saying to other persons that he intended to give Vanover a whipping upon meeting him. On Sunday, the day of the difficulty, Vanover and wife went to Laurel Creek Church and secured seats therein near a window of the building, the husband being between the wife and the window. Shortly thereafter the appellant McGee approached the window on the outside of the building and requested Vanover to come out that he might talk with him. Vanover complied with the request, and had been out of the church but a little while when he and the appellant McGee became engaged in a fight, seeing which, the appellee, Nancy Vanover, ran out of the church to where the fight was in progress, and upon reaching the combatants found them on the ground still fighting; but they were quickly separated by bystanders, following which she and her husband started to leave the grounds, when they were intercepted by the appellant Evans, a brother-in-law of McGee, who seized A. L. Vanover by the throat with one hand, the other being thrust in his pants pocket as if to draw a weapon. The bystanders again interfered and released Vanover, who again started to leave followed by the wife. They had gone but a few steps when the appellant Evans escaped from the hands of those who were restraining him and attempted to renew the attack upon A. L. Vanover, in doing which he ran against the appellee, Nancy Vanover, and struck or thrust her to one side that he might reach the husband, but was prevented from again attacking the latter by the wife with the assistance of bystanders.

It was shown by the evidence that Mrs. Vanover at once became ill; her pain and suffering, attended by menstrual flooding, being manifest from the time the fight ended until she left for her home. Moreover, that the pain and suffering also continued, with intervals of flooding, for two or three weeks, and finally resulted in the miscarriage complained of. The weight of the evidence was to the effect that the assault and battery committed by the appellants upon Vanover, as well as the act of the appellant Evans in striking or pushing the appellee Nancy Vanover, was without justification; indeed, in view of the previous threats of McGee and his calling Vanover from the church, the conclusion is inevitable that the former was endeavoring to carry into effect his avowed purpose to inflict upon Vanover the promised chastisement. The evidence fails to show the existence of any previous ill will upon the part of the appellant Evans towards Vanover, and his participation in the difficulty at the church was doubtless due to his regard for his brother-in-law, McGee; but in interfering in McGee's behalf he acted at his peril, for if the assault and battery committed by McGee upon Vanover was not justifiable, Evans' conduct in assaulting Vanover and the latter's wife on account of McGee was unlawful and unauthorized.

Appellants filed numerous grounds in support of their motion for a new trial; but as all of these grounds, save three, were based upon rulings of the trial court, to which appellants took no exception, they will not be considered on the appeal. The three grounds which it will be proper for us to consider are: (1) That the court erred in overruling appellants' motion for a peremptory instruction at the conclusion of the evidence. (2) That the verdict was flagrantly against the evidence. (3) That the verdict is excessive in amount.

We are clearly of the opinion that the motion for a peremptory instruction should have been sustained as to the appellant McGee, in whose behalf the jury should have returned a verdict, as it is apparent from the evidence that the appellee Nancy Vanover's complaint against him rests solely upon the ground of the fright occasioned her by the assault and battery committed upon her husband. In other words, the fright caused her by the wrongful conduct of McGee towards her husband was unaccompanied by any threatened or actual physical impact with her, or physical injury resulting to her from his acts; and it seems to be well settled that the law allows no recovery for injuries resulting from mere fright, caused by the wrongful act or negligence of another, where no immediate personal injury is received. In Reed v. Ford, 129 Ky. 471, 112 S.W. 600, 33 Ky. Law Rep. 1029, 19 L.R.A. (N. S.) 225, we held that a demurrer was properly sustained to the petition, which sought a recovery in behalf of a woman for pain and suffering resulting in a threatened miscarriage, which was caused solely from fright superinduced by one who, in her hearing, assaulted a third person occupying a room in her house, as the pain and suffering were unaccompanied by any physical injury inflicted upon her by the wrongdoer. In the opinion it is said: "The pain and suffering alleged resulted solely from fright and were unaccompanied by any physical injury. The damages sought to be recovered are too remote and speculative. The injury is more sentimental than substantial; being easily simulated and hard to disprove, there is no standard by which it can be justly, or even approximately, compensated. As said by this court in Reed v. Maley, 115 Ky. 816 [74 S.W. 1079, 25 Ky. Law Rep. 209, 62 L.R.A. 900, 2 Ann.Cas. 453], a case in which the question here involved was considered: 'The objection to a recovery for injury occasioned without physical impact is the difficulty of testing the statements of the alleged sufferer, the remoteness of the damages, and the metaphysical character of the injury considered apart from physical pain."' In Reed v. Maley, supra, the plaintiff's right to recover was based upon the unlawful act of the defendant in proposing to her to have sexual intercourse with him; it being alleged that the defendant thereby committed a trespass against her person, whereby she was frightened and caused great mortification and shame, and in consequence thereof greatly excited and damaged. The action of the circuit court in sustaining a demurrer to the petition was affirmed by this court upon the ground that a cause of action will not lie in favor of a woman against a man, who, without trespass or assault, solicits her to have sexual intercourse with him.

In Morse v. C. & O. Railway Co., 117 Ky. 11, 77 S.W. 361 25 Ky. Law Rep. 1159, it was held that no recovery can be had for personal injury resulting from fright occasioned by the negligence of another, where there is no immediate personal injury, trespass to real estate, or some contract relation. The action was one for damages on account of fright, mental suffering, and superinduced nervous prostration and injury, although there was no contemporaneous physical injury inflicted. The facts relied upon by the plaintiff to support her cause of action were, in substance, that she owned a house and lot on the west side of Main street, in the village of Quincy, Lewis county, in which she resided at the time of her alleged injury; that the street was 30 feet wide; that appellee's depot, grounds, and switch yards were located immediately opposite her residence on the left side of Main street; that a short time previous to the commission of the acts complained of, ...