Kirby v. Jules Chain Stores Corp.

Stacy, C. J., after stating the ease: At the outstart of the argument in this Court, the defendants interposed a demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. This must be overruled. The case is controlled by the principles announced in Freeman v. Acceptance Corporation, 205 N. C., 257, 171 N. C., 63; Beasley v. Byrum, 163 N. C., 3, 79 S. E., 270; May v. Tel. Co., 157 N. C., 416, 72 S. E., 1057; Arthur v. Henry, ibid., 438, 73 S. E., 211; Kimberly v. Howland, 143 N. C., 398, 55 S. E., 778; Watkins v. Mfg. Co., 131 N. C., 536, 42 S. E., 983, rather than by the decision in Anthony v. Protective Union, 206 N. C., 7, 173 S. E., 6, or the holding in Kaylor v. Sain, 207 N. C., 312, 176 S. E., 560. The gravamen of plaintiff’s cause of action is trespass to the person. Duncan v. Stalcup, 18 N. C., 440; 63 C. J., 891. This may result from an injury either willfully or negligently inflicted. May v. Tel. Co., supra. The leading case on the subject is Hill v. Kimball, 76 Tex., 210, 13 S. W., 59, 7 L. R. A., 619, where the petition was held to be good as against a demurrer, which contained averments to the effect that plaintiffs were husband and wife, in possession of a dwelling bouse as tenants of defendant, that the feme plaintiff was well advanced in pregnancy, which fact was known to the defendant, who also knew the probable effects upon feme plaintiff of any undue excitement, that defendant came to the premises and in the immediate presence of feme plaintiff assaulted two Negroes in a boisterous and violent manner, which assault was accompanied with profane language and resulted in drawing blood, and that, as a consequence, feme plaintiff was greatly frightened, which brought on pains of labor, and eventually produced a miscarriage, and otherwise seriously impaired her health. In bolding that the plaintiffs could recover, the Court said: “That a physical personal injury may be produced through a strong emotion of the mind there can be no doubt. The fact that it is more difficult to produce such an injury through the operation of the mind than by direct physical means affords no sufficient ground for refusing compensation, in an action at law, when the injury is intentionally or negligently inflicted. It may be more difficult to prove the connection between the alleged cause and the injury, but if it be proved, and the injury be the qoroximate result of the cause, we cannot say'that a recovery should not be bad. Probably an action will not lie when there is no injury except the suffering of the fright itself, but such is not the present case. Here, *811 according to the allegations in the petition, the defendant has produced a bodily injury by means of that emotion, and it is for that injury that the recovery is sought.” Likewise, in Engle v. Simmons, 148 Ala., 92, 41 So., 1023, which was an action “for an injury to the plaintiff,” it was held (as stated in the second headnote) : “A man entered the dwelling house occupied by a married woman, far advanced in pregnancy, and after being informed that the husband was absent, and after being requested to leave the house, he refused to do so, took an inventory of the household effects, and made threats in reference as to what he would do in reference to a collection of a debt against the husband. The woman was thrown in a nervous excitement, and labor pains, resulting in the premature birth of a child, were brought on. Held, the person entering the house was liable for the bodily pain the woman suffered, though he inflicted no physical violence.” In commenting on the fact that physical violence to the person was not necessary to make out the case, the Court said: “The plaintiff here was in her home, and had a right to the peaceful and undisturbed enjoyment of the same, and any unlawful entry or invasion thereof, which produced physical injury to her, whether by direct personal violence or through nervous excitement the proximate result of the wrongful acts of the defendant, was a wrong for which she is entitled to recover.” Again, in Purcell v. R. R., 48 Minn., 134, 16 L. R. A., 203, the plaintiff, a pregnant woman, was frightened by the negligent conduct of the defendant in running its cars, miscarried, and suffered permanent injury: Held, that a cause of action would lie. Compare Nelson v. Crawford, 122 Mich., 466, 81 N. W., 335, 80 Am. St. Rep., 577. The doctrine of Hill v. Kimball, supra, has not been universally followed. Nelson v. Crawford, supra; 17 C. J., 834. The rationale of the North Carolina decisions, however, places this State in line with it. In addition to the cases cited above, see Blow v. Joyner, 156 N. C., 140, 72 S. E., 319; Brame v. Clark, 148 N. C., 364, 62 S. E., 418; Stewart v. Lbr. Co., 146 N. C., 47, 59 S. E., 545; Hatchell v. Kimbrough, 49 N. C., 163; McClees v. Sikes, 46 N. C., 310; Loubz v. Hafner, 12 N. C., 185; S. v. Hinson, 83 N. C., 640; S. v. Tolever, 27 N. C., 452. The authorities are assembled and digested in annotations, 11 A. L. R., 1119, and 32 A. L. R., 921. Animadverting on the situation and distinguishing the cases in Bouillon v. Gas Light Co., 148 Mo. App., 462, 129 S. W., 401, Nortoni, J., delivering the opinion of tffe Court, said: “There are cases which go to the effect that before plaintiff may recover as for a miscarriage caused by fright it mu§t appear the defendant was aware of her condition and notwithstanding such knowledge occasioned the fright by entering into *812 an altercation in her presence. These authorities proceed as though no obligation rests upon defendant to respond except it appear he breached the obligation to exercise ordinary care. That is to say, they proceed as though no damages may be recovered unless it appear that defendant was in a position to anticipate the particular result as a probable sequence of the fright. See Phillips v. Dickerson, 85 Ill., 11; Reed v. Ford (Ky.), 112 S. W., 600; Brownback v. Frailey, 78 Ill. App., 262; 1 Cooley on Torts (3 Ed.), 94, 95, 96, 97, 98. This doctrine is no doubt correct enough with respect to those cases where the injury is inflicted under circumstances apart from a trespass or other legal wrong against the person or possessions of the plaintiff. But it seems the rule of ordinary care should find no application to a case where it appears the fright is occasioned as a result of a trespass against the person of the plaintiff, such as an assault on her, as in Barbee v. Reese, 60 Miss., 906; Mann Boudoir Car Co. v. Dupre, 54 Fed., 646, 21 L. R. A., 289; Hickey v. Welch, 91 Mo. App., 4; nor where the fright is the result of a trespass against the home or possession of the plaintiff and engaging in an encounter with a third party therein, as in Watson v. Dilts, 116 Ia., 249; Lesch v. Great Northern Ry. Co., 93 Minn., 435; Mann Boudoir Car Co. v. Dupre, 54 Fed., 646, 21 L. R. A., 289. Indeed, it is said in some cases where it appears there is a legal wrong against the right of the plaintiff, such as negligence, a recovery may be had for physical injuries resulting from fright even though the sick or enfeebled condition of plaintiff was wholly unknown to the wrongdoer. (Purcell v. St. Paul City Ry. Co., 48 Minn., 134; Sanderson v. Northern Pac. Ry. Co., 88 Minn., 162; 1 Cooley on Torts [3 Ed.], 97.)” It is true, the basis of the action in most of the cases has been forcible trespass, and it is contended that in the case at bar no forcible trespass has been shown, hence no liability exists. Without conceding the correctness of the syllogism as applied to the instant case, it is observed that much of the confusion on the subject seems to have come from wor-shipping at the shrine of words and formulas, rather than applying correct principles to the facts in hand. Gulf, etc., Ry. Co. v. Hayter, 93 Texas, 239, 77 Am. St. Rep., 856, and note. It is no doubt correct to say that fright alone is not actionable, Arthur v. Henry, supra, but it is faulty pathology to assume that nervous disorders of serious proportions may not flow from fear or fright. Hickey v. Welch, 91 Mo. App., 4; 17 C. J., 838. Fear long continued wears away one’s reserve. “As a general rule, damages for mere fright are not recoverable; but they may be recovered where there is some physical injury attending the cause of the fright, or, in the absence of physical injury, where the fright is of such character as to produce some physical or mental impair *813 ment directly and naturally resulting from the wrongful act” —Sutton, J., in Candler v. Smith, 50 Ga. App., 667, 179 S. E., 395. If it be actionable willfully or negligently to frighten a team by blowing a whistle, Stewart v. Lumber Co., supra, or by beating a drum, Loubz v. Hafner, supra, thereby causing a run-away and consequent damage, it is not perceived upon what logical basis of distinction the present action can be dismissed as in case of nonsuit. Arthur v. Henry, supra. While it would seem the jury might well have' answered the issues in favor of the defendant, especially in view of Dr. Nance’s testimony, still there is evidence to the contrary, and the matter was for the twelve. No reversible error having been made to appear, the verdict and judgment will be upheld. No error.