Porter v. St. Joseph Ry., Light, Heat & Power Co.

• Decision Date: 25 November 1925
• Docket Number: No. 24265.,24265.
• Citation: 277 S.W. 913
• Parties: PORTER v. ST. JOSEPH RY., LIGHT, HEAT & POWER CO.
• Court: Missouri Supreme Court

277 S.W. 913

PORTER v. ST. JOSEPH RY., LIGHT, HEAT & POWER CO.

No. 24265.

Supreme Court of Missouri, in Banc.

November 25, 1925.

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

Action by Elsye M. Porter against the St. Joseph Railway, Light, Heat & Power Company. Verdict for defendant. From judgment sustaining plaintiff's motion for new trial, defendant appeals. Affirmed and remanded.

Robert A. Brown and Richard L. Douglas, both of St. Joseph, for appellant.

Duvall & Boyd and W. B. Norris, all of St. Joseph, for respondent.

WALKER, P. J.

This is an action for damages for personal injuries sustained by the respondent while riding in one of appellant's street cars in the city of St. Joseph, in January, 1922. Upon a trial to a jury there was a verdict for the appellant. Respondent's motion for a new trial was sustained on the ground that the court had erred in giving instructions numbered 7 and 8 at the request of the appellant. These instructions are as follows:

"(7) The court instructs you that even if you should find and believe from the evidence that plaintiff was made nervous solely by reason of the collision described in evidence, or that some previous nervous condition had been aggravated by reason thereof, yet, if you further find and believe from the evidence that she sustained no physical injury of any kind, then under the law it is your duty to find your verdict in favor of the defendant.

"(8) The court instructs you that the burden rests upon the plaintiff throughout the entire case to prove by a preponderance or greater weight of all the credible evidence, to your reasonable satisfaction, that the collision described in evidence was caused or contributed to by the negligence of defendant's motorman; and likewise such burden rests upon the plaintiff to prove each and every fact necessary to authorize a finding in plaintiff's favor, under the instructions of the court; and unless plaintiff has produced such preponderance of the testimony you will find your verdict in favor of the defendant."

I. The purport, if not the tenor, of instruction numbered 7 has not infrequently been considered, not only by this court, but also by the Court of Appeals. The latest ruling of this court upon the doctrine of nonliability, announced in the instruction, is in Perkins v. Wilcox, 294 Mo. 700, 242 S. W. 974, in which it is held generally that in the absence of any physical injuries inflicted by the alleged wrongful acts of the defendant the plaintiff is not entitled to recover. A like doctrine is announced with more emphasis in McCardle v. Peck Dry Goods Co., 271 Mo. 111, 195 S. W. 1034. The instruction there under review was as follows:

"(8) You are instructed that the plaintiff cannot recover for any fright, terror, alarm, anxiety or distress of mind caused by or resulting from the descent of defendant's elevator if these were unaccompanied by some physical injury.

"You are further instructed that if you believe from the evidence that plaintiff's present condition is the result of fright or scare only, then plaintiff cannot recover in this case."

In ruling upon this instruction the court said (page 120 ):

"The first paragraph of the eighth instruction for the defendant which told the jury in effect, that the defendant is not responsible for mental suffering of plaintiff, unless it was accompanied by physicial injury, is correct. The rule in this state was laid down in Trigg v. Railroad, 74 Mo. 147 , thus: `The general rule is that "pain of mind, when connected with bodily injury, is the subject of damages; but it must be so connected in order to be included in the estimate, unless the injury is accompanied by circumstances of malice, insult or inhumanity"'"—citing Supreme Court and Courts of Appeals cases.

The reasoning of the Supreme Court of Massachusetts, cited with approval in the McCardle Case (page 121 ), is so apposite that a quotation from the relevant portion of same is not inappropriate:

"We remain satisfied with the rule that there can be no recovery for fright, terror, alarm, anxiety, or distress of mind, if these are unaccompanied by some physical injury; and if this rule is to stand, we think it should also be held that there can be no recovery for such physical injuries as may be caused solely by such mental disturbance, where there is no injury to the person from without. The logical vindication of this rule is, that it is unreasonable to hold persons who are merely negligent bound to anticipate and guard against fright and the consequences of fright; and that this would open a wide door for unjust claims, which could not successfully be met." Spade v. Railroad, 168 Mass. 285, 47 N. E. 88, 38 L. R. A. 512, 60 Am. St. Rep. 393. Citing cases

The nonconcurrence of certain members of this court with the conclusion in the opinion in regard to the defendant's eighth instruction in the McCardle Case was not that the opinion incorrectly stated the rule as to the defendant's nonliability, but that it did not apply under the facts in that case. The rule as there announced has not, under a proper state of facts, been questioned in this state.

The giving of the seventh instruction for the defendant was therefore not error and furnished no ground for the granting of a new trial.

II. The contention of the appellant concerning the action of the trial court in granting a new trial for error in the giving of instruction numbered 8 is that this instruction properly declared that the burden of proof rested upon the plaintiff throughout the trial to prove by a preponderance or greater weight of the evidence, etc., that the collision was the result of negligence on the part of the defendant. The propriety of this instruction is to be determined primarily from the manner in which the defendant's negligence is charged in the plaintiff's petition. The portion of the latter determinative of the character of negligence charged is as follows:

"That defendant so negligently maintained and operated its said street car and street railway on which plaintiff was a passenger, as to cause, permit, and suffer said street car to collide with a large and heavy fire wagon or fire truck of the fire department of the city of St. Joseph, by reason and as a result thereof plaintiff was thrown against said car and seriously and permanently injured in this, etc."

The general rule in regard to the burden of proof, in cases of the character under review, is that general allegations of negligence are permitted where the plaintiff, not being familiar with the instrumentalities employed by the defendant, can as a consequence have no knowledge of the specific character of the negligent act or acts causing the injury, and the doctrine of presumptive negligence is there permitted to be applied. If, however, the petition discloses that the plaintiff is sufficiently familiar with the exact negligent act or acts causing or contributing to cause his injury as to enable him to plead them specifically, the reason for the doctrine of presumptive negligence disappears, and the plaintiff must prove the negligent act as pleaded and not otherwise. In short, the burden of proof is to be borne...