Reed v. Moore

• Court: California Court of Appeals
• Writing for the Court: WARNE; VAN DYKE, P. J., and SCHOTTKY
• Citation: 319 P.2d 80,156 Cal.App.2d 43
• Parties: Lucille REED, Plaintiff and Appellant, v. Eugene Parker MOORE, Defendant and Respondent. Civ. 9253.
• Decision Date: 11 December 1957

Page 80

319 P.2d 80 156 Cal.App.2d 43 Lucille REED, Plaintiff and Appellant,
v.
Eugene Parker MOORE, Defendant and Respondent. Civ. 9253. District Court of Appeal, Third District, California. Dec. 11, 1957.
Hearing Denied Feb. 5, 1958.

[156 Cal.App.2d 44] Harry A. Ackley, Woodland, for appellant.

Mento, Buchler & Littlefield, Sacramento, for respondent.

WARNE, Justice pro tem.

This is an appeal from a judgment for defendant after the trial court had sustained a demurrer to plaintiff's complaint without leave to amend. The complaint alleged that plaintiff, a married woman, sustained

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injuries, suffered severe emotional strain, mental shock and fright, followed by physical injury in the form of a miscarriage as the direct and proximate result from plaintiff being an eyewitness to a collision between an automobile in which her husband was riding and an automobile driven by defendant, the collision being caused by defendant's negligence. The complaint further alleged that, at the time of the accident, plaintiff was seated in front of her place of abode approximately 130 feet from the point of impact. Upon oral argument, plaintiff's counsel stipulated that at the time of the accident plaintiff was in fear solely for her husband's safety and could not herself be considered within the zone of danger. We will treat the stipulation as an amendment to the complaint. Defendant demurred to the complaint on the ground that it failed to state facts sufficient to constitute a cause of action.

Plaintiff contends that recovery may be had in the instant case for emotional distress followed by physical injury, irrespective of impact upon the person of the plaintiff and irrespective of whether the emotional distress is intentionally or negligently caused. In support of her contention she cites Sloane v. Southern California Ry. Co., 111 Cal. 668, 680, 44 P. 320, 32 L.R.A. 193; Medeiros v. Coca Cola Bottling Company, 57 Cal.App.2d 707, 135 P.2d 676; Lindley v. Knowlton, 179 Cal. 298, 176 P. 440, and Cook v. Maier, 33 Cal.App.2d 581, 92 P.2d 434. We do not agree with plaintiff. The cases are not in point and may easily be distinguished from the case at bar. In the Sloane case, supra, the defendant wrongfully deprived [156 Cal.App.2d 45] plaintiff of her ticket and thereafter, by reason of such wrongful act, excluded her from its car. The negligent act was directed to the plaintiff personally, not to a third person. In the Medeiros case, supra, the defendant negligently permitted a cleaning brush to remain in a bottle of coca cola and plaintiff drank a portion of the contents. The recovery was for injury resulting from mental shock on seeing the disgusting looking object in the bottle from which she had just drunk. Here again, the negligence was directed to the plaintiff personally. In the Cook case, supra, defendant's automobile collided with a second automobile and as a result of said collision, and the negligence of the driver in operating the vehicle, it ran 'on to' a vacant lot owned by plaintiff adjoining her home where, with a loud noise and crash, it collided with a trash burner, thereafter running into a rock and board fence...