Waube v. Warrington

Decision Date08 January 1935
Citation216 Wis. 603,258 N.W. 497
CourtWisconsin Supreme Court


Appeal from an order of the Circuit Court for Shawano County; Edgar V. Werner, Circuit Judge.

Reversed, with directions.

The action was brought by plaintiff, William Waube, as special administrator of the estate of Susie Waube, deceased, against Edward Warrington, Amber Rose Warrington, and the Hardware Mutual Casualty Company, defendants, to recover for the death of the intestate as the result of the negligent driving of an automobile by the defendant Amber Rose Warrington. The complaint alleged that on the 25th day of March, 1934, the defendant Amber Rose Warrington negligently operated the automobile of her husband, Edward Warrington, and as a proximate result of this negligence struck and killed Dolores Waube, at a point near the home of Dolores Waube; that Dolores Waube was the infant daughter of Susie Waube, the decedent; “that as a direct and proximate result of said negligence on the part of said defendants, and the resultant injury to and untimely death of said child, Dolores Waube, caused as aforesaid, immediately in front of the home of said Susie Waube and in her presence while the said Susie Waube was in a frail state of health, the said Susie Waube became extremely hysterical, sick, and prostrated through fright, shock, and excessive sudden emotional disturbances,” which caused her immediately to take to her bed and which caused her death on April 11, 1934. From an order overruling a general demurrer to this complaint, defendants appeal. For convenience, Amber Rose Warrington will hereafter be referred to as the defendant, and since the liability of the other defendants clearly depends upon that of Amber Rose Warrington, no further reference will be made to them.

North, Bie, Duquaine, Welsh & Trowbridge, of Green Bay, for appellants.

Matthew M. Wallrich, of Shawano, for respondent.

WICKHEM, Justice.

In the statement of facts in both briefs it is said that deceased was looking out the window of her house watching her child cross the highway, and witnessed the negligent killing of the child by defendant. While upon a demurrer the sole question is whether the facts alleged in the complaint state a cause of action, we consider that the statement of facts concurred in by plaintiff and defendant constitutes an informal amendment to the complaint by stipulation, and will determine the questions presented as though the complaint were amended to conform to the statement of facts.

[1] The question presented is whether under the Wisconsin equivalent of Lord Campbell's Act, decedent's husband may recover for her death under such circumstances. Under the provisions of section 331.03, Stats., in order that he may recover for her death, the circumstances must have been such as to have entitled Susie Waube, had she lived, to maintain an action for her injuries. Koehler v. Waukesha Milk Co., 190 Wis. 52, 208 N. W. 901. Thus the question presented is whether the mother of a child who, although not put in peril or fear of physical impact, sustains the shock of witnessing the negligent killing of her child, may recover for physical injuries caused by such fright or shock.

The problem must be approached at the outset from the viewpoint of the duty of defendant and the right of plaintiff, and not from the viewpoint of proximate cause. The right of the mother to recover must be based, first, upon the establishment of a duty on the part of defendant so to conduct herself with respect to the child as not to subject the mother to an unreasonable risk of shock or fright, and, second, upon the recognition of a legally protected right or interest on the part of the mother to be free from shock or fright occasioned by the peril of her child. It is not enough to find a breach of duty to the child, follow the consequences of such breach as far as the law of proximate cause will permit them to go, and then sustain a recovery for the mother if a physical injury to her by reason of shock or fright is held not too remote.

Upon this point we adopt and follow the doctrine of Palsgraf v. Long Island R. Co., 248 N. Y. 339, 162 N. E. 99, 59 A. L. R. 1253. In that case the facts are thus stated by the court: Plaintiff was standing on a platform of defendant's railroad after buying a ticket to go to Rockaway Beach. A train stopped at the station, bound for another place. Two men ran forward to catch it. One of the men reached the platform of the car without mishap, though the train was already moving. The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall. A guard on the car, who had held the door open, reached forward to help him in, and another guard on the platform pushed him from behind. In this act, the package was dislodged, and fell upon the rails. It was a package of small size, about fifteen inches long, and was covered by a newspaper. In fact it contained fireworks, but there was nothing in its appearance to give notice of its contents. The fireworks when they fell exploded. The shock of the explosion threw down some scales at the other end of the platform many feet away. The scales struck the plaintiff, causing injuries for which she sues.”

The court, speaking through Judge Cardozo, said: “Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. * * * The plaintiff sues in her own right for a wrong personal to her, and not as the vicarious beneficiary of a breach of duty to another. * * * The passenger far away, if the victim of a wrong at all, has a cause of action, not derivative, but original and primary. His claim to be protected against invasion of his bodily security is neither greater nor less because the act resulting in the invasion is a wrong to another far removed.”

See, also, 27 Illinois Law Review, pp. 774, 775, in which Dean Green, referring to the case of Hambrook v. Stokes Bros., [1925] 1 K. B. 141, hereafter to be considered, stated: “The only problem was whether defendants owed the wife a duty with respect to possible injury to herself as a result of their negligence in imperiling the lives of her children.”

The right of a plaintiff to recover damages for nervous shock caused by negligence without actual impact has had an interesting history. See 34 Harvard Law Review, 260; 11 Cornell Law Quarterly, 513; 11 American Law Register, 141. In Victoria Railways Commissioners v. Coultas (1888) 13 A. C. 222, 226, it was held that plaintiff was not entitled to recover such damages. In Lehman v. Brooklyn City R. Co. (1888) 47 Hun (N. Y.) 355, 356, the same doctrine was announced. This became the prevailing doctrine in this country. Ewing v. Pittsburgh, etc., R. Co., 147 Pa. 40, 23 A. 340, 14 L. R. A. 666, 30 Am. St. Rep. 709;Haile's Curator v. Texas & Pacific R. Co., 60 F. 557, 9 C. C. A. 134, 23 L. R. A. 774;Mitchell v. Rochester Ry. Co., 151 N. Y. 107, 45 N. E. 354, 34 L. R. A. 781, 56 Am. St. Rep. 604;Spade v. Lynn & Boston R. Co., 168 Mass. 285, 47 N. E. 88, 38 L. R. A. 512, 60 Am. St. Rep. 393. This doctrine, however, was repudiated in a number of jurisdictions, including Wisconsin, in situations where fright without impact produced physical injuries. Alabama Fuel & Iron Co. v. Baladoni, 15 Ala. App. 316, 73 So. 205;Lindley v. Knowlton, 179 Cal. 298, 176 P. 440;Goddard v. Watters, 14 Ga. App. 722, 82 S. E. 304;Watson v. Dilts, 116 Iowa, 249, 89 N. W. 1068, 57 L. R. A. 559, 93 Am. St. Rep. 239;Whitsel v. Watts, 98 Kan. 508, 159 P. 401, L. R. A. 1917A, 708;Stewart v. Arkansas Southern R. Co., 112 La. 764, 36 So. 676;Green v. Shoemaker, 111 Md. 69, 73 A. 688, 23 L. R. A. (N. S.) 667;Purcell v. St. Paul City R. Co., 48 Minn. 134, 50 N. W. 1034, 16 L. R. A. 203;Kimberly v. Howland, 143 N. C. 398, 55 S. E. 778, 7 L. R. A. (N. S.) 545;Salmi v. Columbia, etc., R. Co., 75 Or. 200, 146 P. 819, L. R. A. 1915D, 834;Simone v. Rhode Island Co., 28 R. I. 186, 66 A. 202, 9 L. R. A. (N. S.) 740;Mack v. South Bound R. Co., 52 S. C. 323, 29 S. E. 905, 40 L. R. A. 679, 68 Am. St. Rep. 913;Sternhagen v. Kozel, 40 S. D. 396, 167 N. W. 398;Memphis St. R. Co. v. Bernstein, 137 Tenn. 637, 194 S. W. 902;Gulf, etc., R. Co. v. Hayter, 93 Tex. 239, 54 S. W. 944, 47 L. R. A. 325, 77 Am. St. Rep. 856;O'Meara v. Russell, 90 Wash. 557, 156 P. 550, L. R. A. 1916E, 743;Pankopf v. Hinkley, 141 Wis. 146, 123 N. W. 625, 24 L. R. A. (N. S.) 1159;Sundquist v. Madison Ry. Co., 197 Wis. 83, 221 N. W. 392. See notes 11 A. L. R. 1119, 40 A. L. R. 983, 76 A. L. R. 681. In Pankopf v. Hinkley, supra, the conflict is noted and it is stated that the better reason favors the view that there is a cause of action for shock sustained without impact but resulting in physical injuries. It had previously been held in this state, in Summerfield v. W. U. Tel. Co., 87 Wis. 1, 57 N. W. 973, 41 Am. St. Rep. 17, and Gatzow v. Buening, 106 Wis. 1, 20, 81 N. W. 1003, 49 L. R. A. 475, 80 Am. St. Rep. 1, that where there was no impact, and where there were no subsequent physical injuries caused by fright, no cause of action existed. The rule followed in Wisconsin appears to represent the modern tendency and to be now the rule of the New York court. Comstock v. Wilson, 257 N. Y. 231, 177 N. E. 431, 76 A. L. R. 676. In jurisdictions following the liberal rule it has been held consistently, with but two exceptions, hereafter to be noted, that in order to give rise to a right of action grounded on negligent conduct, the emotional distress or shock must be occasioned by fear of personal injury to the person sustaining the shock, and not fear of injury to his property or to the person of another. Dulieu v. White & Sons, [1901] 2 K. B. 669; Sanderson v. Northern Pac. Ry. Co., 88 Minn. 162, 92 N. W. 542, 60 L. R. A. 403, 97 Am. St. Rep. 509;Mahoney v. Dankwart, 108 Iowa, 321, 79 N. W. 134;McGee v. Vanover, 148 Ky. 737, 147 S. W. 742, Ann. Cas. 1913E, 500;Bucknam v....

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