Resavage v. Davies

• Decision Date: 07 March 1952
• Docket Number: No. 114,114
• Citation: 86 A.2d 879,199 Md. 479
• Parties: RESAVAGE v. DAVIES et al.
• Court: Maryland Court of Appeals

Page 479

199 Md. 479

86 A.2d 879

RESAVAGE v. DAVIES et al.

No. 114.

Court of Appeals of Maryland.

March 7, 1952.

Rehearing Denied April 8, 1952.

Harold Buchman and Michael Paul Smith, Baltimore (Buchman & Dubow, Baltimore, on the brief), for appellant.

Roszel C. Thomsen, Baltimore (Clark, Thomsen & Smith, Baltimore, on the brief), for appellee.

Before MARBURY, C. J., and DELAPLAINE, COLLINS, HENDERSON and MARKELL, JJ.

HENDERSON, Judge.

This appeal is from a judgment for the defendants in an action at law, after the court had sustained a demurrer without leave to amend. The declaration alleged that the plaintiff, the mother of two daughters aged sixteen and thirteen, respectively, sustained injuries through nervous shock and resulting physical injuries by reason of seeing her daughters struck and killed by an automobile owned by one of the defendants and operated by the other as his agent and servant. At the time of the accident the plaintiff was standing on the porch of her home, 1226 Forest Road, Sparrows Point; the daughters were standing on the parkway at the intersection of Route 151 and Route 20, waiting for a bus; the automobile came south on Route 151, jumped the curb and struck the children 'in full view of the plaintiff'. The plaintiff, 'petrified with horror at the sickening scene unfolded before her and torn with anxiety, ran to the children, who were languishing in pools of blood and in a dying condition'. She was confined to her bed for a considerable period as a result of the shock. There were allegations of negligence on the part of the defendants in the operation of the automobile and lack of negligence on the part of the plaintiff and her deceased children. The grounds of demurrer were that the declaration failed to allege any breach of duty to the plaintiff or to establish any cause of action on her behalf, and that the negligence alleged was not the proximate cause of the alleged injuries.

It has long been established in this state that recovery may be had for physical injuries resulting from nervous shock, even though there is no actual physical impact. Green v. T. A. Shoemaker & Co., 111 Md. 69, 73 A. 688, 23 L.R.A.,N.S., 667; Great A. & P. Tea Co. v. Roch, 160 Md. 189, 153 A. 22; Bowman v. Williams, 164 Md. 397, 165 A. 182; Mahnke v. Moore, Md., 77 A.2d 923, 926; State, for Use of Aronoff v. Baltimore Transit Co. 80 A.2d 13, 14. The appellees contend, however, that although impact is immaterial if physical injury is caused by shock arising directly from the act or omission of the wrongdoer, it is essential that there first be established a duty owed to the plaintiff and a breach of that duty. The argument is addressed to the scope of the duty owed, rather than to any break in the chain of causation. No doubt, the question of foreseeability plays a part in the result reached under either theory.

In Green v. T. A. Shoemaker & Co., supra, there were cumulative shocks produced by repeated blasting in the vicinity of the plaintiff's dwelling, which on more than one occasion rocked the house, broke windows, caused plaster to fall and precipitated large rocks into the house. The court found that the actions, persisted in after notice to desist, amounted to a public nuisance. The plaintiff was a tenant in the house and thus entitled to complain of the invasion of her property rights. In Great A. & P. Tea Co. v. Roch, supra, the manager of a store sent to a nervous woman customer a package containing a dead rat instead of the article ordered. The case was allowed to go to the jury on the theory of negligent mistake, although the declaration presented a case of an intentional and deliberate practical joke. In any event the wrongful act or omission was directed towards the plaintiff and not a third person. In Bowman v. Williams, supra, the plaintiff was standing at the window of his dwelling house when the defendants' truck ran into the side of the house below where he was standing. His two children were in the basement. There was no physical impact to the plaintiff or his children, but the plaintiff was physically injured by the shock caused by his fright and alarm for the safety of his children. The court said, 164 Md. at page 403, 165 A. at page 184,: 'there was imminent danger of physical contact that confronted the plaintiff, who had visible reason to apprehend that the impending peril caused by the negligent act or omission of the defendants' servants with respect to their duty to him would not only happen but would also crush and damage the building and inflict the threatened physical injury upon his children in the basement and himself in the dining room of the house. There was no basis to differentiate the fear caused the plaintiff for himself and for his children, because there is no possibility of division of an emotion which was instantly evoked by the common and simultaneous danger of the three.' Under the circumstances it was said, 164 Md. at page 405, 165 A. at page 185, that 'the father could have recovered whether this fright was for the safety of his children or of both himself and the children.' On the question of the duty owed, however, the court stated clearly, 164 Md. at page 400, 165 A. at page 183: 'The master has the right to drive the truck upon the highway, but, in the exercise of this right, the master owes a duty to the other users of the highway, and the occupants of the contiguous premises, so to operate the truck that an injury to the person or property rights of the other users of the highway and of the occupants of the contiguous premises will not be inflicted by the failure of the master to operate the truck with reasonable care and caution under the circumstances. * * * So the negligent, but not willful, driving of the truck from the public highway through the wall of the house in which the plaintiff lived was the breach of duty which in the user of the highway the masters owed the plaintiff.' Again, the court said, 164 Md. at page 402, 165 A. at page 184; 'the cause of the fright was the negligent act or omission of the defendants in permitting the truck to get out of control or be driven so as to run into the house of the plaintiff. This was a breach of duty that the defendants owed to the plaintiff.'

In Mahnke v. Moore, supra , the action was by a five year old child against the executrix of her deceased father. Moore maintained a wife and children in New Jersey, and a home in Maryland with a paramour and his illegitimate daughter. He murdered the child's mother with a shotgun in the child's presence and confined her in the room with the mangled corpse for six days. Thereafter, he committed suicide with the same weapon in the child's presence, drenching her with his blood. It may be inferred that the child was herself in peril of physical harm by the murderer. The main question discussed was whether a child could recover in an action of tort against its parent. The existence and breach of a duty under the circumstances was assumed without discussion, although it was pointed out that 'generally, the commission of murder or suicide is not a tort against an eyewitness.'

In State, for Use of Aronoff v. Baltimore Transit Co., supra, the plaintiff's intestate was standing inside the lobby of a store in which he was supervising the installation of plate glass windows. A truck, standing near the curb loaded with plate glass, was struck on the street side by a passing streetcar. He died from a heart attack induced by shock from seeing and hearing the crash and concern for the possible financial loss he might have sustained as a substantial owner of the plate glass company. While the decision that recovery could not be had was rested in part upon the proposition that the injury to his personal property was too remote, in the absence of any other immediate peril, the opinion closed with the statement, quoted from Jackson v. Pennsylvania R. Co., 176 Md. 1, 5, 3 A.2d 719, 120 A.L.R. 1068: 'The allegations being 'insufficient to show a duty breached which was the efficient cause of the injury averred, the declaration is bad on demurrer.''

In 2, Restatement, Torts § 312(d) a distinction is recognized between acts intended to cause distress and those that are merely likely to do so. The Mahnke case may, perhaps, be distinguished on this ground. Cf. Lambert v. Brewster, 97 W.Va. 124, 125 S.E. 244, and Monteleone v. Co-Operative Transit Co., 128 W.Va. 340, 36 S.E.2d 475.

Section 312(e) of the Restatement deals with negligence acts: '(e) On the other hand, an act, which is merely negligent as threatening an immediate harm to a third person, is not negligent to another solely because of the possibility that the peril or harm of such a person may indirectly cause fear, grief or similar emotional disturbance to others because of their interest in and affection for the third person and the possibility that they may be in such a physical condition that the emotional disturbance may be physically harmful. This is so irrespective of whether the other witnessed the third person's peril or harm or is informed of it immediately thereafter or at some subsequent period, and irrespective of whether they are or are not members of the same immediate family.'

Section 313 contains a caveat, however, that: 'The Institute expresses no opinion as to whether an actor whose conduct is negligent as involving an unreasonable risk of causing bodily harm to a child or spouse is liable for an illness or other bodily harm caused to the parent or spouse who witnesses the peril or harm of the child or spouse and thereby suffers anxiety or shock which is the legal cause of the parent's or spouse's illness or other bodily harm.'

We think the fundamental consideration is the extent of the duty owed, bearing in mind that 'no act will be considered negligence merely because in fact it causes fright and injury through it, if it had no tendency to cause anything but fright.' Bohlen,...