Urban v. Hartford Gas Co.

• Decision Date: 09 December 1952
• Court: Connecticut Supreme Court
• Parties: URBAN et al. v. HARTFORD GAS CO. Supreme Court of Errors of Connecticut

Page 292

93 A.2d 292

139 Conn. 301

URBAN et al. v. HARTFORD GAS CO.

Supreme Court of Errors of Connecticut.

Dec. 9, 1952.

George Miske, Hartford, for appellant.

Bruce W. Manternach, Hartford, with whom, on the brief, was John M. Donahue, Washington, D. C., for appellee.

Before BROWN, C. J., and JENNINGS, BALDWIN, INGLIS and O'SULLIVAN, JJ.

O'SULLIVAN, Associate Justice.

Both Alice Urban and her husband instituted this suit against the defendant. We shall treat the action, however, as if Mrs. Urban were the only plaintiff, since she alone has appealed.

The complaint is in one count. It alleges the following facts: On April 20, 1949, the Urbans bought a gas hot water heater from the defendant under a contract calling for the payment of the purchase price in equal monthly installments. The defendant thereupon set up the appliance in the Urban home. On March 9, 1950, the defendant's employees, acting within the scope of their authority, returned for the purpose of removing the heater. The reason given to the plaintiff for their contemplated action was that she and her husband had not met their current monthly instalment. Such was not the fact, as the defendant knew or in the exercise of reasonable care should have known. The employees further stated in the presence of the divers people then present that Mrs. Urban and her husband did not pay their bills to the defendant, thus implying, falsely, that they were dead beats and delinquent debtors. As a result, Mrs. Urban became hysterical and emotionally upset. This caused an arrested diabetic condition to flare up and directly led to a prolonged illness. She has suffered pain and mental anguish. Finally, she was degraded, humiliated and disgraced. Her ad damnum seeks money damages.

The court sustained a demurrer to the complaint and, upon the failure of the Urbans to plead over, entered judgment that the complaint was insufficient. The sole question raised by this appeal is whether or not the court erred in sustaining the demurrer.

Of the four grounds of demurrer, the third was predicated on the assumption that the plaintiff had attempted to allege, among others, a cause of action for breach of contract. In oral argument and brief she has expressly disclaimed reliance on such a theory. Her position before us is that her right to compensation rests entirely in tort. Her claim is that the complaint permits recovery under the law of negligence and of slander and of the right of privacy. The third ground, therefore, requires no discussion.

The first ground of demurrer may be paraphrased as follows: The law does not permit the plaintiff to recover damages for bodily and mental injuries resulting to her from the defendant's negligence in ordering removal of the heater, because the complaint does not allege that she came within the range of physical danger occasioned by that negligence. Although it 'demurs to the complaint,' the defendant appears to challenge the compensability of certain elements of alleged damage rather than to attack the complaint as one setting forth a defective cause of action. If this construction of the first ground is correct, it would seem that a demurrer was not the proper means of raising the question intended. But that aside, we propose to overlook technicalities in order to determine whether the plaintiff has alleged a good cause of action based on negligence.

Negligence is a breach of duty. Collins v. City National Bank & Trust Co., 131 Conn. 167, 170, 38 A.2d 582, 153 A.L.R. 1030. The duty may be the outgrowth of a contractual relationship between the parties. Dean v. Hershowitz, 119 Conn. 398, 403, 177 A. 262. Under the factual circumstances admitted by demurrer in the case at bar, there was impliedly imposed upon the defendant a duty arising out of the contract between the parties to use reasonable care to refrain from interfering or threatening to interfere with Mrs. Urban's right, under the same contract, to enjoy the use of the heater so long as the monthly payments were met as they fell due. Obviously, this duty was breached. At a time not only when reasonable care would have disclosed that all instalments to date had been fully paid but also when the defendant actually knew that Mrs. Urban was not in default, it sent its employees to her home with instructions to remove the heater and to terminate her right to the continued use of the appliance. A clear legal right was thus invaded by the failure of the defendant to use the care required of it. Under these circumstances, Mrs. Urban was entitled to at least nominal damages, since, in this state, every invasion of a legal right imports damage. Hageman v. Freeburg, 115 Conn. 469, 471, 162 A. 21. The complaint alleges a good cause of action grounded in negligence.

This brings us, then, to the more vital claim advanced by the defendant. Before discussing it, we point out that the plaintiff does not seek damages for an emotional upset alone but for injuries to her nerves and body proximately occasioned by that upset, which in turn directly resulted from the wrongful act of the defendant.

Although conceding that its conduct was the direct cause of the mental and bodily injuries described in the complaint, the defendant asserts that our law precludes recovery therefor. Reliance for this claim is made upon the authority of Orlo v. Connecticut Co., 128 Conn. 231, 21 A.2d 402. In that case, an electrically-charged trolley wire of the defendant, broken through the negligence of its motorman, fell upon an automobile in which the plaintiff was riding as a passenger. The wire flashed, hissed and emitted sparks. The plaintiff did not attempt to escape from his predicament but remained seated in the automobile. He received no physical injury but did experience a severe fright. This aggravated a diabetic condition from which he had previously suffered. On appeal from a judgment for the trolley company, we reviewed the cases dealing with a recovery for injuries resulting from fright and disapproved the court's charge that, in order to recover, the plaintiff had to establish a contemporaneous injury of a traumatic nature. We went on to say, 128 Conn. at page 239, 21 A.2d at page 405, that 'where it is proven that negligence proximately caused fright or shock in one who is within the range of ordinary physical danger from that negligence, and this in turn produced injuries such as would be elements of damage had a bodily injury been suffered, the injured party is entitled to recover.'

It may very well be, as the defendant maintains, that the injuries sustained by Mrs. Urban did not happen while she was 'within the range of ordinary physical danger' from the defendant's negligence. But the principle of the Orlo case is inapplicable to the type of tort involved in the case at bar. The wrong perpetrated upon Mrs. Urban was not one which was accompanied by the probability of physical impact. She was the victim of a tort requiring neither physical impact nor danger therefrom. In this respect it is not unlike the situation in Wilkinson v. Downton, [1897] 2 Q.B. 57, where the defendant, as a practical joke, told the plaintiff that her husband's legs had been broken in an accident; or in Great Atlantic & Pacific Tea Co. v. Roch, 160 Md. 189, 153 A. 22, where a grocer, with an equally warped sense of humor, sent to a customer a dead rat instead of a loaf of bread. Recovery was allowed in each case although there had been no impact. The same was true of Engle v. Simmons,...