O'Meara v. Russell

• Decision Date: 06 April 1916
• Docket Number: 13137.
• Court: Washington Supreme Court
• Parties: O'MEARA et al. v. RUSSELL et al.

156 P. 550

90 Wash. 557

O'MEARA et al. v. RUSSELL et al.

No. 13137.

Supreme Court of Washington

April 6, 1916

Department 1. Appeal from Superior Court, King County; John E Humphries, Judge.

Action by Susie A. O'Meara and another against R. E. Russell and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

Preston & Thorgrimson and F. E. Sansom, all of Seattle, for appellants.

Jay C Allen, of Seattle (Philip Tindall, of Seattle, of counsel) for respondents.

MOUNT J.

The plaintiffs recovered a judgment of $3,000 upon the verdict of a jury for personal injuries resulting to Mrs. O'Meara. The defendants have appealed from that judgment.

It appears that in the summer of 1914, the appellants were clearing a street in the city of Seattle under a contract with the city. In doing this clearing the appellants were using stumping powder in blasting stumps. The respondents lived in a house about 140 feet distant from the street which was being improved. On August 24th of that year a stump was blown through the air a distance of about 150 feet, and struck the eaves trough of the respondents' house near the corner of the house. Mrs. O'Meara was standing in the house near the door. She saw the stump coming toward her, and saw it strike the house a few feet above her head. She was so frightened by the occurrence that she does not know what occurred thereafter until she found herself at the home of a neighbor about four blocks away. She evidently ran away from the house after the shock.

The evidence tends to show that she was injured internally, either from the shock, or in attempting to escape from the house after the stump had hit the house. At that time she was a woman about 45 years of age, and prior to that time had had two surgical operations, one for the removal of gall stones, and the other for the removal of a tumor. This last operation was performed about 10 months previous to the time the stump struck the house. After these operations she was comparatively well.

She testified that after she came to herself at her neighbor's house, she felt severe pain internally, and thought that the incision which had been made for the operations had been opened; that she commenced to flow profusely, although her regular menstruation had ceased about 10 days before.

The doctors testified that she was thereafter tender about the liver, and was sensitive in the region of the bladder. At the trial of the case the court instructed the jury to the effect that if they found that the defendants carelessly or negligently caused a quantity of stumping powder or other explosive to be discharged or set off in close proximity to the plaintiffs' home, and that such explosion caused a stump to be thrown through the air and against the home of the plaintiffs, and that by reason thereof Mrs. O'Meara became frightened, and because thereof, through fear, and in an effort to protect herself and escape the threatened danger she sustained injuries to her person, internal organs, or her nervous system, and has suffered damages thereby, then it would be the duty of the jury to find a verdict for the plaintiffs, if they found that the negligence of the defendants was the proximate cause of the injury; and that if by reason of the negligence of the defendants she sustained injuries or damages to her person, internal organs, or nervous system, then the defendants would be liable for such damages sustained; and that if by reason of the vibration and concussion caused by the discharge of the blast, Mrs. O'Meara reasonably believed that she was in danger or peril, then the jury were charged that Mrs. O'Meara had a right to attempt to escape and flee from such danger.

There are several assignments of error, but the principal question presented upon this appeal is: Can there be a recovery for fright resulting in personal injury where there was no impact or injury to the person preceding the fright? It is not claimed that the stump which struck the respondents' house struck Mrs. O'Meara. It is strenuously argued by the appellants that by reason of the fact that the stump did not touch Mrs. O'Meara, that she was therefore merely frightened by it, and for that reason there can be no recovery.

The appellants rely principally upon the case of Corcoran v. Postal Telegraph Cable Co., 80 Wash. 570, 142 P. 29, L. R. A. 1915B, 552, where we held:

'That mental suffering, independent of physical injury, does not, at common law, render a person who merely negligently causes such suffering answerable in damages therefor is settled by the decisions of the great majority of the states of the Union, and by an unbroken line of decisions of the federal courts.'

Many of the cases from other states, relied upon by the appellant, are cited and quoted from in that opinion. That was a case where there was no physical injury claimed. The only claim of damages was that there was mental suffering by reason of the fact that a telegram was improperly addressed by the telegraph company, and was not delivered. We desire to adhere to that rule. But we think it has no application to this case because there the only injury suffered was mental. There was no physical injury. In the case at bar the injury, if the testimony of the respondents is to be believed, was physical, caused from fright.

The respondents rely upon the case of Winston v. Terrace, 78 Wash. 146, 138 P. 673. That was a case where the defendant entered upon the premises of the plaintiffs, and with a pistol frightened Mrs. Winston from her home, and in escaping therefrom she became nervous and disabled from performing her household duties, and lived in constant fear of Mr. Terrace for a number of months. We held that there could be a recovery under those circumstances. That was a case of willful invasion of the defendant's home. We think it is more nearly related to this case than is the Corcoran Case above referred to. We do not desire to depart from the rule in either case, because we are satisfied that the rule announced in each of those cases is correct. We are of the opinion that the rule in the Terrace Case is more nearly applicable to the case in hand than is the rule in the Corcoran Case.

It is conceded in the briefs that the authorities in the different states are in hopeless conflict upon the question whether there can be a recovery in a case like that. It would be a work of supererogation, and would unduly lengthen this opinion, to review all of the cases cited from the different states upon the question here presented.

The rule is stated in 8 Am. & Eng. Encl. Law, at page 665, as follows:

'On this point there is much conflict in the cases. The weight of authority seems to be that in cases of negligence merely, where some actual damage must be shown to constitute a cause of action, the mere fear or nervous apprehension of physical injuries which are never, in fact, received is not such damage as will support the action, even though actual physical injury follows as a consequence of the mental disturbance.

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