Thacker v. Ward

140 S.E.2d 23 (1965) 263 N.C. 594

Paul E. THACKER
v.
Hurshel E. WARD, Jr., and William C. Markham, Jr., t/a Ward-Markham Co., and Billy Sanford McCoy.

No. 472.

Supreme Court of North Carolina.

January 29, 1965.

Yarborough, Blanchard & Tucker, Douglass & Douglass, Raleigh, for plaintiff.

Smith, Leach, Anderson & Dorsett, Raleigh, for defendants.

SHARP, Justice.

This appeal involves only a question of pleading, not the right of a plaintiff to recover for emotional disturbances precipitated by physical injuries. Upon proper allegations and medical proof as to causation, it is generally held that recovery for such a disturbance may be had. Williamson v. Bennett, 251 N.C. 498, 112 S.E.2d 48, (recovery denied because no actual physical injuries); Ford v. Blythe Brothers Co., 242 N.C. 347, 87 S.E.2d 879; see, on the requisites of medical proof of causation, Gillikin v. Burbage, N.C., 139 S.E.2d 753.

Plaintiff's evidence, viewed in the light most favorable to him, tends to show that after the automobile which he was driving was struck from the rear by the truck of defendants Ward and Markham, plaintiff developed a traumatic neurosis. Although none of the medical experts who testified used this term, the bizarre, metastatic symptoms detailed by plaintiff at the trial and to his physicians, who could find no physical basis for these complaints, are among the indicia of traumatic neurosis. This is a term loosely used to include a variety of emotional and nervous disorders which sometimes follow a physical injury and which cause pain as real as if it had a physical basis. 3 Lawyers' Medical Cyclopedia §§ 20.1, 20.3, 20.4, 20.12 (1959 ed.).

Plaintiff has alleged that his nervous system was shocked and damaged, his ability to sleep permanently impaired, and that he has suffered excruciating physical and mental pain as a result of injuries sustained in the collision on April 25, 1960. He has not, however, specifically alleged that his disorders and suffering are emotional rather than physical or organic in origin, i. e., that he has become a victim of traumatic neurosis. May he recover for such an injury without an explicit averment of it? This is the question this appeal poses. If such an allegation is required, the judge correctly instructed the jury to allow plaintiff no damages for psychological complaints. The court cannot submit a case to the jury on a particular theory unless such theory is supported by both pleadings and evidence. Assuming, purely arguendo, that we have in this case the necessary proof of causation, "proof without allegation is as ineffective as allegation without proof." McKee v. Lineberger, 69 N.C. 217, 239; accord, Calloway v. Wyatt, 246 N.C. 129, 97 S.E.2d 881.

The general rule with reference to pleading items of damages in personal-injury cases is this: Those injuries which are the natural and probable consequences of the hurt alleged in the complaint, and not be set out in detail. The law will infer them from the facts set forth. Effects, however, which are not logical and necessary, which are reasonably included therein, need and which do not ordinarily follow such injuries constitute special damages, which must be specifically pleaded. 15 Am.Jur. Damages §§ 304, 311 (1938); 25 C.J.S. Damages § 135 (1941). Therefore, from an injury which necessarily causes physical pain the law assumes that the normal person will suffer some mental anguish, also. Hargis v. Power Co., 175 N.C. 31, 94 S.E. 702. Although it is the better practice in a personal-injury action to aver specifically that plaintiff has suffered mental anguish as a result of his injuries (if such be the case), most courts, including this one, hold that "where a description of the injury itself is such as to indicate that pain and mental anguish would ordinarily accompany it, the specific allegation is unnecessary." McCormick, Damages § 88 (1935 ed.); accord, Hargis v. Power Co., supra; 15 Am. Jur., Damages § 316 (1938).

Plaintiff contends that, he having alleged both physical pain and mental suffering, as well as severe shock to his nervous system, these allegations are a sufficient foundation for the recovery of damages for traumatic neurosis. We do not agree.

The purpose of averring that a plaintiff is afflicted with a certain condition or disease as a result of a defendant's actionable negligence is to give defendant notice that plaintiff is seeking compensation for the infirmities and discomfort attending it. A defendant is entitled to know from the complaint the character of the injury for which he must answer. The complaint, therefore, should disclose "all the facts which the defendant should know in order to make his defense" and thus prevent surprise at the trial. Barron v. Cain, 216 N.C. 282, 283, 4 S.E.2d 618, 619; accord, Oberholtzer v. Huffman, 234 N.C. 399, 67 S.E.2d 263.

In Connor v. Kansas City Rys. Co., 298 Mo. 18, 250 S.W. 574, plaintiff alleged that her entire body was strained, bruised, and contused; that she sustained a concussion of her spine; and that she would continue to lose sleep and suffer intense pain and mental anguish. In holding that evidence tending to show insanity was not admissible within this pleading, the court said: "Neither insanity, irrationality, nor traumatic neurosis, with its train of ills, is a necessary result of injuries such as are pleaded in the petition. Injuries to nerves do not necessarily so result, and a nervous condition does not necessarily include them * * *." Id. at 23, 250 S.W. at 576; accord, Arkansas Power & Light Co. v. Toliver, 181 Ark. 790, 27 S.W.2d 985 (allegation of a broken rib, neck and back sprains, and a contusion on the back of the head, Held, not sufficient to admit evidence that plaintiff was suffering from a brain disease known as Friedman's Complex); Chambers v. Kennedy, 274 S.W. 726 (Mo.) (allegation of permanent injury to brain and entire nervous system, Held, not sufficient to admit evidence of epilepsy, which might or might not result from such injuries); Waters v. City of Morgantown, 110 W.Va. 43, 156 S.E. 837 (allegation of abdominal, head and neck injuries which rendered plaintiff very nervous, Held, insufficient to admit evidence of insanity resulting from the accident in suit).

Although, as the testimony of one of the medical experts in this case indicates, traumatic neurosis sometimes ensues from a neck sprain such as plaintiff presumably suffered, yet it is not the necessary or the usual result. Often it is very difficult for medical experts to determine whether a plaintiff is malingering, i. e., making a "conscious attempt to simulate some condition which is not actually present," or whether he is the victim of a neurosis, "which involves the unconscious production of a symptom so that the patient is unaware of its emotional origin." 3 Lawyers' Medical Cyclopedia § 20.16 (1959 ed.). A defendant who must face a determination of this question is entitled to pleading-notice that the plaintiff seeks to recover damages for a psychoneurotic reaction.

Ordinarily, the question of the sufficiency of the pleadings in cases involving a traumatic neurosis arises upon objections to evidence of plaintiff's symptoms. Here, however, without objection, the jury heard all of plaintiff's evidence with reference to his symptoms. No question arose until defendants requested the court to charge the jury that it could not include damages for psychological injuries in any award to plaintiff. Defendants' strategy of permissiveness was based, we apprehend, upon their belief (1) that jurors, like most other people, are unsympathetic to a person who has no physical basis for his complaints and (2) that plaintiff would victimize himself by overstating his baroque complaints. "I pray you, sir, to understate your case, lest the full truth, falling upon untutored ears, deafen beyond belief." Whether the verdict reflects the success of defendants' strategy or the jurors' strict compliance with the court's charge, we must leave to conjecture. In any event, plaintiff has assigned no reversible error. The charge conformed to the rule of damages for personal injuries as laid down in Smith v. Corsat, 260 N.C. 92, 131 S.E.2d 894, and the cases therein cited. Under the charge plaintiff was permitted to recover for all his physical and mental sufferings which were the immediate and necessary consequences of the injury sustained. Had plaintiff desired elaboration of his contentions with reference to lost wages and other items embraced by the rule, he should have especially requested it. Peterson v. McManus, 210 N.C. 822, 185 S.E. 462.

In the trial, we find

No error.