Orlo v. Conn. Co.

• Court: Supreme Court of Connecticut
• Writing for the Court: MALTBIE, Chief Judge
• Citation: 128 Conn. 231,21 A.2d 402
• Parties: ORLO v. CONNECTICUT CO. et al.
• Decision Date: 22 July 1941

21 A.2d 402
128 Conn. 231

ORLO
v.
CONNECTICUT CO. et al.

Supreme Court of Errors of Connecticut.

July 22, 1941.

21 A.2d 402

Appeal from Superior Court, New Haven County; Quinlan, Judge.

Action by Angelo Orlo against the Connecticut Company and the Town of West Haven for personal injuries alleged to have been caused by the negligence of the defendants, brought to the superior court and tried to the jury. Verdict and judgment for the defendants, and plaintiff appeals.

No error in appeal from judgment for the Town of West Haven. Error and new trial ordered in appeal from judgment for the Connecticut Company.

21 A.2d 403

Argued before MALTBIE, C. J., and AVERY, BROWN, JENNINGS, and ELLS, JJ.

Isadore L. Kotler and Francis J. King, both of Bridgeport (James E. Murphy, of Bridgeport, on the brief), for appellant (plaintiff).

Edwin H. Hall, of Bridgeport (J. W. Grady, of New Haven, on the brief), for appellee (named defendant).

Walton E. Cronan, of New Haven, for appellee (Town of West Haven).

MALTBIE, Chief Judge.

The plaintiff brought this action against the named defendant and the town of West Haven to recover damages he claimed to have suffered by reason of the negligence of the named defendant and the maintenance of a nuisance by it and the defendant town. The jury rendered a verdict for the defendants and from the judgment entered thereon the plaintiff has appealed, claiming errors in the charge. He was a passenger in an automobile which was following a trolley car of the named defendant. Due to the claimed negligence of the operator of the trolley car, its pole came in contact with the trolley wire and other wires, causing the former to break. The ends of this wire were charged with electricity. One struck the top of the automobile which as it proceeded came in contact with the other. The driver of the automobile stepped to the ground, received an electric shock and was thrown to the highway; his clothing was scorched and burned and he received physical injuries. The plaintiff continued to sit in the automobile, with the wires flashing, spitting and hissing about it. He claimed to have proved that he received sparks from the electricity, but there were no burns or marks on his body from it. He also claimed that he suffered nervous shock and severe fright, causing him to shake and tremble, that he was confined in a hospital about a month, that a condition of diabetes and arteriosclerosis from which he had previously suffered was aggravated and that he continued to be disabled and under medical attention until the trial, nearly a year after the accident.

The trial court instructed the jury that there could be no recovery of damages due to fright alone unaccompanied by physical injury; that this meant an injury of a traumatic nature from the application of some outward force; that it would not include "some perspiration of the body or some heart disturbance or some nervous disturbance * * *"; but that, even though the contemporaneous physical injury was slight, there could be a recovery for a serious mental, nervous or other condition which resulted. The court submitted to the jury an interrogatory asking whether the plaintiff received an electrical shock. After they had been deliberating for some time and had returned to the court room, they asked the court what could constitute a physical injury if the plaintiff did not receive an electrical shock. The trial court, in substance, repeated the charge it had previously given. In connection with their verdict, the jury answered the interrogatory in the negative.

The plaintiff assigns error in this portion of the charge. Its gist was that in order to recover the plaintiff must prove a contemporaneous injury of a traumatic nature, though it be slight. The three cases in which we have had occasion to consider a recovery for the results of fright or nervous shock all fall within this statement. Block v. Pascucci, 111 Conn. 58, 62, 149 A. 210; Israel v. Ulrich, 114 Conn. 599, 601, 159 A. 634; Mitnick v. Whalen Brothers, Inc., 115 Conn. 650, 651, 163 A. 414. The weight of authority in other jurisdictions supports a recovery in such situations. How far the courts have gone in applying the rule is illustrated by the case of Cornstock v. Wilson, 257 N.Y. 231, 177 N.E. 431, 76 A.L.R. 676. The plaintiff in that case was in an automobile collision; after it was over she stepped from the automobile and started to write down the defendant's name and license number; and while doing so she fainted and fell to the sidewalk; fracturing her skull. The court, after referring to the fact that in Mitchell v. Rochester Ry. Co., 151 N.Y. 107, 45 N. E. 354, 34 L.R.A. 781, 56 Am.St.Rep. 604, it had been held that there could be no recovery for injuries from fright unaccompanied by physical injury and tracing the development of the law in Massachusetts and New York, sustained a judgment for the plaintiff on the ground that the collision and the consequent jar to the passengers in the car was a battery and an invasion of her legal rights and that this was sufficient to permit a recovery for her subsequent death. Had the jury in this case found, as the plaintiff claimed, that one of the wires fell upon the automobile in which the plaintiff was riding and the occurrence caused

21 A.2d 404

him to shake and tremble, it would be difficult if not impossible to distinguish the case before us from the Comstock case. Even in Massachusetts, where the courts have consistently adhered to the rule that to permit a recovery there must be a contemporaneous injury of a traumatic nature, it has recently been held error to direct a verdict for a street railway company in an action where a passenger in a car, frightened when it collided with an automobile, jumped from her seat and twisted her shoulder, although there was no external mark of injury. Freedman v. Eastern Massachusetts Street Ry. Co., 299 Mass. 246, 12 N.E.2d 739. To make the right to recover damages for serious injuries dependent upon such slight circumstances is a result which it would be difficult to justify to a layman of ordinary intelligence.

It may be granted that, as pointed out in some of the authorities hereafter cited, there can be no recovery for mere fright, nervous shock or other mental disturbance where there is no outward manifestation of their effects, upon the very logical ground that the law has never regarded these mental states standing alone as a legal injury. Nor are we now concerned with a situation where the party claiming to recover was not within the range of ordinary physical danger from the negligent conduct claimed. The plaintiff is seeking to recover for elements of damage which, if there had been a contemporaneous bodily injury, would be allowed as matter of course. There is great disagreement in the cases upon the question whether there can be a recovery for injuries which can be traced to the claimed negligent conduct through fright or nervous shock where there is no such injury. The decisions are gathered and reviewed in the notes 11 A.L. R. 1134, 40 A.L.R. 983, 76 A.L.R. 681, 98 A.L.R. 402, and are discussed and the underlying principles are considered in articles by very able commentators of which perhaps the most helpful are Bohlen, Studies in the Law of Torts, 252; Throckmorton, Damages for Fright, 34 Harvard Law Review, 260; 1 Sutherland, Damages, 4th Ed., § 21 ff; and Pollock on Torts (14th Ed.) 38. Examination of the cases discloses that there has been a definite tendency toward the enlargement of the right of recovery for damages resulting from fright or nervous shock.

Some of the reasons given for denying recovery, particularly in the older cases, have little if any weight now. One is the difficulty in tracing with any certainty the resulting injury back through the fright or nervous shock to the claimed negligent conduct. The steadily increasing advance in medical knowledge has tended to minimize this difficulty. It is a commentary upon it that in this state ever since the...