Memphis St. Ry. Co. v. Bernstein

• Decision Date: 16 May 1917
• Parties: MEMPHIS ST. RY. CO. ET AL. v. BERNSTEIN. MEMPHIS ST. RY. CO. ET AL. v. KANTROVITZ.
• Court: Tennessee Supreme Court

194 S.W. 902

137 Tenn. 637

MEMPHIS ST. RY. CO. ET AL. v. BERNSTEIN.

MEMPHIS ST. RY. CO. ET AL. v. KANTROVITZ.

Supreme Court of Tennessee.

May 16, 1917

Certiorari to Court of Civil Appeals.

Actions by Mrs. Lena Bernstein and Mrs. P. Kantrovitz against the Memphis Street Railway Company and A. Gawrock. Judgments for plaintiffs were affirmed by the Court of Civil Appeals, and defendants bring certiorari. Reversed and remanded.

Anderson & Crabtree, of Memphis, for defendants.

GREEN J.

The defendants in error were passengers in a jitney bus, which collided with a street car on the streets of Memphis, and they brought these two suits against the Street Railway Company and against A. Gawrock, owner of the jitney bus, for injuries alleged to have been sustained in the accident.

There was a recovery in both cases, and these judgments were affirmed by the Court of Civil Appeals. Petitions for certiorari have been filed by the Street Railway Company and by the owner of the jitney car.

We think there was evidence to sustain the judgments against both defendants below.

In submitting the cases to the jury the court charged them as follows:

"Gentlemen, the measure of damages is, if the plaintiffs are entitled to recover in these cases they are entitled to recover compensatory damages that would fairly compensate them for the injuries they have received. In considering the compensatory damages you will consider as an element thereof the nature and the extent of the injury, if you find that there was any injury; you will take into consideration the mental and physical pain and suffering of the plaintiffs, if you find that either of them suffered mental or physical pain and suffering; you will also consider as an element of compensatory damages the fright of the plaintiffs from the experience that they went through, and also the shock to their nervous system, if you find that they suffered any fright or received any nervous shock from the experience they went through."

In this instruction the court distinctly told the jury that they should consider as an element of compensatory damages "the fright of the plaintiffs from the experience that they went through."

Recovery for fright was authorized as a separate and independent element of damage. Recovery was not limited to bodily pain or suffering resulting from the fright, but was to be allowed for fright, and also for nervous shock from the experience the plaintiffs went through.

This instruction was erroneous. The authorities are quite in accord that mere fright cannot be made the basis of a cause of action, and that damages cannot be allowed for fright alone. Williamson v. Central of Georgia Railroad Co., 127 Ga. 125, 56 S.E. 119; Atchison, T. & S. F R. Co. v. McGinnis, 46 Kan. 109, 26 P. 453; Elgin A. & S. Tr. Co. v. Wilson, 217 Ill. 47, 75 N.E. 436; Pullman Co. v. Kelly, 86 Miss. 87, 38 So. 317.

See other cases to the same effect collected in a note to 45 L R. A. (N. S.) 433, and 3 L. R. A. (N. S.) 49.

The cases are not in harmony as to the right of a plaintiff to recover for physical pain and suffering resulting from fright. Many decisions deny this right. We think, however the better reasoned cases hold that there may be a recovery for bodily pain and suffering proximately following fright occasioned by the negligence of a defendant.

The suit, under such circumstances,...