Rasmussen v. Benson
| Citation | 280 N.W. 890,135 Neb. 232 |
| Decision Date | 08 July 1938 |
| Docket Number | 30073 |
| Parties | BERNICE RASMUSSEN, ADMINISTRATRIX, APPELLEE, v. JOHN BENSON, APPELLANT |
| Court | Supreme Court of Nebraska |
APPEAL from the district court for Adams county: LEWIS H BLACKLEDGE, JUDGE. Opinion on motion for rehearing of case reported in 133 Neb. 449. Affirmed.
AFFIRMED.
Syllabus by the Court.
1. A physical injury resulting from an emotional upset produced by the negligence of another creates liability for damages.
2. Damages for actual injury resulting from fright and shock are recoverable, although not accompanied by a contemporaneous injury.
Appeal from District Court, Adams County Blackledge, Judge.
On rehearing.
Former opinion affirmed.
For former opinion, see 133 Neb. 449, 275 N.W. 674.
Edmund P. Nuss and P. E. Boslaugh, for appellant.
Carl T. Curtis and King & Bracken, contra.
This is an action for damages arising from the sale of a sack of poisoned bran. Benson held a farm sale and sold a portion of a sack of poisoned bran to Rasmussen. This sack was not labeled "Poison," and Rasmussen fed the bran to his dairy cows and other live stock. As a result, five of his ten cows died and five were so poisoned as to be sick and rendered unfit for further dairy purposes. A hog and some twenty chickens also died as a result of the poison in this feed. Rasmussen lost his dairy route, and his business which he had built up during ten years, and which was his only means of livelihood for himself and his family, was destroyed. It is alleged that as a result of the great mental and nervous shock caused by the poisoning of his live stock, the subsequent loss of his dairy business, and the fear of communicating the poison to his dairy customers, he became fatally ill and died. According to the medical testimony he died of a decompensated heart caused by an excessive emotional disturbance. Rasmussen himself commenced this action, but at his death it was revived and continued by his wife as administratrix of his estate.
An opinion was formerly adopted in this case, to which reference is made for additional facts not deemed necessary of repetition. Rasmussen v. Benson, 133 Neb. 449, 275 N.W. 674. An oral argument was allowed on the motion for rehearing, and additional briefs were filed by the parties. After this careful consideration the court is of the opinion that, under the circumstances of the case, Rasmussen was entitled to recover for damages occasioned by loss of his live stock and the loss of the dairy business. This court erred, complains the appellant, in failing to distinguish between negligence with respect to his property and negligence with respect to his person. In other words, even if the recovery for damage to the property is correct, Benson insists that the law does not justify a recovery for the sickness and death of Rasmussen. The verdict was a general one for $ 3,500 and cannot be segregated by this court.
Is the appellant liable for the decompensated heart caused by the great mental and nervous shock resulting from his negligence, which proximately caused the sickness and death of the deceased? There is sufficient evidence to sustain the verdict of the jury that the appellant was negligent in the sale of the unlabeled, poisoned bran in such a way that it was likely to be used for feed for live stock. The bag of bran was sold from a hayrack with other small articles as a part of a farm sale, but there is dispute in the evidence as to what the auctioneer said, as agent for the appellant, with reference to the bran itself when it was offered for sale. The witnesses for the appellee testify that the auctioneer stated to Rasmussen and the others at the sale that the sack contained bran, and that it would make some cheap feed for cows. Witnesses for Benson state that they do not remember such a statement, and that the auctioneer said to the crowd: "I think it is bran," and it was sold that way. There is no dispute in the evidence as to whether or not the bran was labeled "Poison" in any way. Benson himself testifies that one moonlight night, about March 1, 1935, he picked up a piece of cardboard from the floor of the barn, and, not knowing what it was, carried it to the house so that he might look at it in the light. When he reached the kitchen he discovered that he was carrying the red "poison" label which had become detached from the sack of bran, and instead of replacing it on the sack he put it in a drawer of the kitchen cupboard. The tag is in evidence.
Benson was conducting this sale personally and through his agents. At his request a nephew had made arrangements for the auctioneer and clerks, and at his request, or at least with his acquiescence, his nephew and some neighbors picked up and arranged the items for the sale. The nephew and another who prepared for the sale were present when the bran was sold. Benson was not actually present at the time of the sale of the bran, but he had been present just before, and he returned to the scene of the sale shortly afterwards. There is proof that he interfered with the progress of the sale when the auctioneer was selling some corn for seed corn, and stated it was not good for seed corn, but would serve all right for feed. The evidence amply supports the allegation that he sold the bran at least through his agents. Even the appellant asserts in his brief for rehearing that it was sold in a "gunny sack" as "bran for stock."
After the sale was over Rasmussen returned to his home, and fed the bran purchased at the sale to his ten dairy cows and other live stock that night. The next morning, after he had milked and delivered the milk to his customers, the cows became very sick. As soon as he discovered this, Rasmussen telephoned all the customers and went by automobile to notify those without telephones. Later a chemist tested the bran and found that it was 1.75 arsenic, or 122.5 grains to a pound, while five grains is sufficient to kill a cow. According to this witness, time does not affect the strength of the poison. The veterinary who cared for the cows confirmed the finding of arsenic in the bran. According to the testimony, there was more than enough arsenic contained in that sack of bran to kill all the people in the adjacent town of Minden where the customers of the deceased lived. We are confirmed in the belief that in this case the appellant was negligent in the sale of poisoned bran for stock food, or in selling it unlabeled so that it might be used as such. In this case the negligence of the appellant caused the loss of Rasmussen's cows and other live stock, together with the loss of his dairy business. In addition to the loss of personal property, Rasmussen suffered a decompensation of the heart caused by the severe mental stress and shock, which resulted in his death. Rasmussen started his dairy business in 1926 with three cows, and at that time he owed the bank about $ 2,000. He had developed his business until he had paid the debt to the bank, increased the number of cows to ten or twelve, and gained over fifty customers to whom he was selling from seventy-five to eighty quarts of milk a day. After the cows became sick he was naturally fearful lest the milk which he delivered to his customers from the poisoned cows would endanger the lives of many people to whom he felt a responsibility because they were customers of the dairy. The deceased was under such a strain that when the rendering plant came to get the dead animals he fainted and fell down in the yard. He took to his bed and was later in the hospital two different times. The bran was sold and fed to the cows on May 15, 1935, and Rasmussen died on February 20, 1936. He was not able to do any work from May 23, 1935, to the time of his death, although fully able to do so prior to the first date. Medical experts testified as to his health before and after the poisoning of the cows. They testify that his condition, as well as his death, was due to a decompensation of the heart caused by mental shock and emotional upset. Is the appellant liable for the full consequences of his negligent act in selling unlabeled, poisoned bran in such a way that it was likely to be fed to dairy cows whose milk was being delivered to the many customers of Rasmussen's dairy? It was only by extraordinary efforts that the deceased was able to prevent this. His cows were destroyed; his dairy business which he had built up during ten years was wiped out; he was deprived of his livelihood for himself and his family; and his was the responsibility of poisoning many people who consumed the milk from the poisoned cows. According to the evidence, his death resulted from the circumstances arising from the negligent sale of the poisoned bran. In such a situation is recovery limited to the value of the cows as personal property? Is the appellant's liability for his negligence limited to the value of the personal property and not extended to the damage actually resulting from that negligence?
The deceased feared that he might poison some of his customers to whom he delivered the milk from the poisoned cows. It is not so important whether or not this actually happened as it is that he had some foundation for the fear, and suffered a severe emotional upset because of it. It is a common belief among people that arsenic poison may be communicated through milk. It has been stated in authoritative works that traces of arsenic have been found in cows' milk after giving the cows relatively large but not fatal doses of the poison, and that traces of arsenic have been found in mothers' milk where there has been...
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