Ver Hagen v. Gibbons

• Decision Date: 02 June 1970
• Citation: 47 Wis.2d 220,177 N.W.2d 83
• Parties: Jan K. VER HAGEN et al., Respondents, v. Harley GIBBONS, Appellant.
• Court: Wisconsin Supreme Court

Page 83

177 N.W.2d 83

47 Wis.2d 220

Jan K. VER HAGEN et al., Respondents, v. Harley GIBBONS, Appellant.

Supreme Court of Wisconsin.

June 2, 1970.

This is an appeal from the order of the circuit court overruling a demurrer to the complaint for failure to state facts sufficient to constitute a cause of action. In pertinent part the complaint alleged:

'8. That the defendant, Harley Gibbons, so negligently constructed the fireplace and dwelling located at 2090 Wedgewood Drive East, that when the plaintiff Jan K. Ver Hagen built a fire in the fireplace on the second level of said premises on December 30, 1967, said fire proximately caused the dwelling and personal property of the plaintiffs Ver Hagen to be consumed by fire; that said plaintiffs Ver Hagen were in the said dwelling at the time of the commencement of said fire and were forced to flee the said dwelling on account of the excessive heat, smoke and flames in order that they would avoid great physical injury or death; that as a proximate result of the fire, the said plaintiff Jan K. Ver Hagen suffered shock, mental anguish and great anxiety for his well-being at the time of said fire and thereafter and will continue to suffer mental anguish, great anxiety and emotional distress, all to his damage in the amount of Five Thousand ($5,000.00) Dollars.' (Emphasis supplied.)

Steele, Smyth, Klos & Flynn, Marvin H. Davis, La Crosse, for appellant.

Johns, Flaherty, Harman & Gillette, Donald J. Harman, La Crosse, for respondents.

HANLEY, Justice.

The sole issue before this court is whether one can recover for mental anguish and emotional distress which is the result of another's negligence and which is not manifested by, or causative of, any physical injury.

One of the earliest cases involving mental distress is Summerfield v. Western Union Telegraph Co. (1894), 87 Wis. 1, 2, 57 N.W. 973. There this court denied recovery to one who, due to the defendant's negligence, did not receive word of his mother's illness until after her death. The plaintiff alleged that as a result he was '* * * 'mortified, grieved, hurt, and shocked, and suffered intense anguish of body and mind, and was thereby thrown into a state of nervous excitement and tremor, which rendered him sick, and impaired his health and strength, and that he still suffers from the effect of the same."

In denying recovery the court stated that '* * * for mental distress alone * * * damages are not recoverable, * * *' ¹ but then recognized, at pages 8 and 9, the following situations wherein damages for the infliction of mental suffering would be recoverable:

'* * * '(1) Where, by the merely negligent act of the defendant, physical injury has been sustained; and in this class of cases they are compensatory, and the reason given for their allowance is that the one cannot be separated from the other. (2) In actions for breach of the contract of marriage. (3) In cases of wilful wrong, especially those affecting the liberty, character, reputation, personal security, or domestic relations of the injured party.' * * *'

Later, in Gatsow v. Buening (1900), 106 Wis. 1, 81 N.W. 1003, recovery was sought for mental suffering and distress caused by a conspiracy to deprive the plaintiff of the hearse in which his deceased child was to be driven to the cemetery. There again the court noted that no physical injury had been inflicted upon the plaintiff and stated, at page 20, 81 N.W. at page 1009:

'* * * (This) case does not fall within the few exceptions to the rule,--which prevails in this state and in most jurisdictions,--that mental distress alone is too remote and difficult of measurement to be the subject of an assessment of damages. * * *'

In Ford v. Schliessman (1900), 107 Wis. 479, 83 N.W.2d 761, it was held that one could recover for mental suffering caused by a direct assault upon her person even though the defendant neither touched her nor caused her physical injury. The court, however, denied recovery because the evidence was insufficient to establish that the defendant had actually assaulted the plaintiff or attempted to have carnal intercourse with her.

Subsequently, in Pankopf v. Hinkley (1909), 141 Wis. 146, 123 N.W. 625, an action to recover for physical injuries resulting from 'severe fright and shock' was considered by this court. As a result of the defendant's negligence, the plaintiff was thrown from her carriage and later suffered physical injuries in the form of a miscarriage due to fright and shock caused by the accident. In allowing recovery this court ruled that:

'The principle here decided is that when physical injury flows directly from extreme fright or shock, caused by the ordinary negligence of one who owes the duty of care to the injured person, such fright or shock is a link in the chain of proximate causation as efficient as physical impact from which like results flow.' Pankopf v. Hinkley, supra, at page 149, 123 N.W. at page 627.

This ruling was later affirmed in Sundquist v. Madison Rys. Co. (1928), 197 Wis. 83, 221 N.W. 392, wherein the plaintiff, although sustaining no immediate physical injuries following an automobile accident, was allowed to recover for paralysis which later resulted from the fear and shock caused by such accident.

In Waube v. Warrington (1935), 216 Wis. 603, 258 N.W. 497, however, recovery for physical injuries resulting from '* * * fright, shock, and excessive sudden emotional disturbances' was denied because the plaintiff's fear was not for her own safety, but for the safety of her daughter whom she had seen killed through the defendant's negligent operation of a motor vehicle. ² The requirement that physical injuries resulting from fear be caused by fear for one's own safety was later affirmed and illuminated in Klassa v. Milwaukee Gas Light Co. (1956), 273 Wis. 176, 77 N.W.2d 397, and Colla v. Mandella (1957), 1 Wis.2d 594, 85 N.W.2d 345.

In Klassa it was held that one must not only be within "the range of ordinary physical peril" but must actually be in fear for his own safety. In Colla the defendant had parked his truck atop a hill overlooking the house of the plaintiff's deceased husband. When the truck rolled down the hill striking his house, he became extremely excited and later suffered a fatal heart attack. Although the truck had not actually struck the plaintiff's deceased husband, recovery was allowed for his death which had been caused by his excitement and fear. In allowing recovery this court removed any doubt of its having abandoned the requirement that there be direct physical impact upon the plaintiff before allowing recovery for physical injuries resulting from shock or fear for one's own safety.

From the foregoing cases, it is clear that, while this jurisdiction has abandoned the requirement of physical impact, doubt remains as to when physical injuries which manifest emotional or mental disturbances are required as a prerequisite to recovery for negligent infliction of such disturbances.

The defendant-appellant takes the position that recovery is not allowed under the circumstances of this case. While he is correct in his contention, his reliance upon Alsteen v. Gehl (1963), 21 Wis.2d 349, 124 N.W.2d 312, is for the most part misplaced. Alsteen, unlike the instant case, was an action to recover damages for intentionally-inflicted emotional distress. This court, not having previously considered such a case at length, ³ there set forth four prerequisites to recovery for the intentional infliction of psychological injury. It did not, however, as urged by the appellant, require intent in all cases and thereby totally eliminate recovery for the negligent infliction of emotional distress. Had such been the court's intent, it would have expressly overruled earlier case law to the contrary. An examination of such cases, however, indicates that psychological or emotional damage caused by negligence is, in limited circumstances, compensable.

In Alsteen, supra, the plaintiff sought recovery from one who had contracted to repair her house. This court there recognized that due to difficulties of proof it had previously been reluctant to allow recovery for emotional distress in the absence of attendant physical injuries which manifest such distress. However, it then noted that the factual basis for denying recovery in such cases has changed and announced, at page 359, 124 N.W.2d at page 317, that '* * * we now possess the tools whereby we can intelligently evaluate claims of emotional injury. * * *'

The question now is whether such announcement is to be limited to cases involving intentional infliction of injury or also to be applied to negligent infliction of emotional distress.

In answering this question it can be argued with perfect logic that if we possess tools to intelligently evaluate claims which may be spurious, such tools are capable of such evaluation regardless of whether they are caused intentionally or through negligence. However, from the very prerequisites to recover set forth in Alsteen, supra, it is apparent that such tools are considered adequate only when the prerequisites are in fact present.

In Alsteen, supra, this court stated, at pages 359, 360, and 361, 124 N.W.2d at page 318:

'* * * Four factors must be established for an injured plaintiff to recover:

'(1) The plaintiff must show that the defendant's conduct was intentional; that is to say, the defendant behaved as he did for the purpose of causing emotional distress for the plaintiff.

'(2) In addition to being intentional, the defendant's conduct must be extreme and outrageous. * * *

'(3) The plaintiff must demonstrate that the defendant's conduct was a...