Hill v. Kimball , 7 L.R.A. 618 ( 1890 )

GAINES, Associate Justice.

The case presented by the petition in

this suit being novel, we were in doubt whether the facts alleged showed a cause of action, and for that reason set aside the submission at the last term and requested counsel to submit arguments upon that question. The question has been argued and the cause again submitted for determination. The defendant below, the appellee here, interposed an exception to the petition on the ground that he was not sued in the county of his residence, and the exception was sustained by the ness of that ruling depends upon the nature of the uv!.

The petition alleges, in substance, that plaintiffs were husband and wife, and were in possession under a lease of a dwelling house and land belonging to defendant; that the wife was well advanced in pregnancy, and that defendant knew the fact, and that he was also aware that any undue excitement to a lady in that condition was likely to produce a serious injury to her health; that notwithstanding these facts he came to plaintiff’s house, and in the yard, and in the immediate presence of the wife, he assaulted two negroes in a boisterous and violent manner, a^d that the assault was accompanied with profane language and resulted in drawing blood. It was also alleged that defendant’s conduct frightened Mrs. Hill and brought on the pains of labor and eventually produced a miscarriage, and otherwise seriously impaired her health.

After a very careful consideration of the petition, we are of opinion that its allegations show a cause of action. We have found no exact precedent for such an action, but that is no sufficient reason why an action should not be sustained. 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 proximate result of the cause, we can not say that a recovery should not be had. 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, 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. If in his assault upon the negroes he had discharged a missile at one of them, and it had missed its.aim and had struck Mrs. Hill and produced a'miscarriage, there is no doubt that he would be liable to an action; and it seems to us he should be equally held liable for the same result produced by the same conduct, except that in the one case the means of the injury is a material substance and in the other a mental emotion. •

Of course, since there is no intent to injure Mrs. Hill alleged, it will be a question for the jury to determine whether his conduct, so far as she was concerned, was negligent or not; that is to say, whether, unde]^ the circumstances and with the lights before him, a reasonably prudent \ man would have anticipated the danger to her or not. We have been cited by counsel for appellee to the case of Renner v. Canfield, 36 Minnesota, 90. In that case the defendant shot a dog near the residence of the plaintiff, and thereby frightened his wife and caused a miscarriage. The court say, in effect, that the charge to the jury was erroneous, because the jury could and would probably infer from it that the defendant was liable in the action if the killing of the dog was unlawful; and for this • error the judgment was reversed. In the opinion the court say: “If the acts of the defendant amounted to any tort, which in any possible view of the case could be held to be the proximate cause of the injuries complained of, the gist of it must be negligence in shooting in such proximity to a human residence as might naturally and reasonably be anticipated to be liable to injure the inmates by fright or otherwise. We are by no means prepared to say that upon the evidence a verdict for plaintiff could be sustained even upon that ground. But it is enough here to say that the ease was not submitted to the jury upon any such • theory.” It is evident that the court did not decide that no action would lie even under the peculiar facts of that case. Besides, it ap-i Ipeared in that case that the defendant was not aware of the proximity lof the plaintiff’s wife at the time he discharge^' the gun.

We think the petition in this case discloses i cause of action, and this conclusion brings us to the question originally presented in appellant’s brief. The petition alleged the residence of defendant to be in Leon County, and that the injury was inflicted in Freestone County, in which the suit was brought. The defendant excepted to the petition, because the action was not brought in the county of his residence. The ruling of the court in sustaining the exception is assigned as error. Our statutes provide that no person who is an inhabitant of the State shall be sued out of the county of his domicile, except in certain cases. Rev. Stats., art. 1198.

Among the exceptions is the following: “When the foundation of the suit is some crime or offense or trespass for which a civil action in dam- ■ ages may lie, in which case the suit may be brought in the county where ■ the crime or offense or trespass was committed, or in the county where ■the defendant has his domicile.” Rev. Stats., art. 1189, subdiv. 8.

It is clear that unless the action in this case can be classed as a trespass within the meaning of that term in the provision quoted, the suit was improperly brought in Leon County; and the determination of that point depends upon the further question whether the word is used in the statute in its most restricted or in a more enlarged legal sense. In its widest signification it means any violation of law; in its most restricted sense it signifies an injury intentionally inflicted by force, either upon the person or property of another. But it still has a signification in law much more narrow than the first, and more enlarged than the second meaning given, and embraces all cases where injury is done to the person or to property, and is the indirect result of wrongful force. Abb. Law Die., “Trespass.”

In this last sense the word would include injuries to persons or property which are the result of the negligence of the wrongdoer, and it seems to us more in consonance with the purpose and spirit of the exception to hold that it was in this sense that it was intended that the word should be understood. We presume the exception was made in the interest of the injured party, and not of the wrongdoer, and we see no good reason why a distinction should be made between an injury resulting from intentional violence and one resulting jfrom negligence. It occurs to us the consideration which induced the exception was that one who had been injured in his person or his property by the wrongful or negligent conduct of another, should not be driven to a distant forum to get redress of his wrongs.

In the case of Ten Eyck v. Bank, 31 New Jersey Law, 428, the Supreme Court of Hew Jersey construed the word “trespass” as used in a statute ■of that State as descriptive of a class of actions, and held that it was not used in its most restricted sense, but applied also to all actions of trespass in the case. See also Cook v. Hartman, 2 W. & W. C. C., 770.

If, as we think, the word trespass in our statute was intended to embrace not only actions of trespass proper as known to the common law, hut also actions of trespass on the case, it is clear that the action in this ■case was properly brought in Freestone County, and that the court had jurisdiction over the person of the defendant.

We conclude that the court erred in sustaining the exceptions to the ■petition, and for this error the judgment is reversed and the cause remanded.

Reversed and remanded.

Delivered February 14, 1890.