Gosa v. Southern Ry.

The first, second and third exceptions, I think, should be sustained. The material allegations of the complaint and the exceptions are copied in the opinion of Associate Justice Gary, and it is, therefore, unnecessary to set them out in full again. The plaintiff and her infant were crossing the track of the defendant in a wagon upon a public highway. The locomotive of defendant struck the wagon, and the plaintiff and her infant were thrown out and injured. In the second paragraph of the complaint the allegation is, that without notice to the plaintiff, the defendant caused its locomotive to approach the crossing at a reckless and unlawful rate of speed, "and before plaintiff could escape with her infant baby, said locomotive struck the wagon in which plaintiff was seated, wrecking the same and throwing the plaintiff with her infant in her arms to the ground in so violent a manner as to break the thigh bone of her said infant and horribly bruising the plaintiff, wounding her physically and mentally, to her great damage in the sum of five thousand dollars." The third paragraph alleges the failure to give statutory signals, and charges the defendant "wilfuly and wantonly and negligently, and in utter disregard of the rights of plaintiff, caused its locomotive to run into the wagon in which plaintiffand her infant were traveling, upon the public highway aforesaid, thereby inflicting upon her and her said infant serious bodily injuries and mental suffering, to her great damage five thousand dollars." The fourth paragraph alleges the defendant "carelessly, negligently, wantonly and wilfully, and in utter disregard of the rights of plaintiff andher infant in arms, failed to stop its said locomotive, after discovering the wagon in which plaintiff was traveling upon the public highway, in time to prevent the injury to plaintiffand her infant, to her great damage in the sum of five thousand dollars." I have italicized the expressions in the quotations from the complaint which are material to this discussion.

There are some expressions in the complaint which may seem to indicate the plaintiff sought to recover damages for the physical injuries inflicted on her child as well as those inflicted on herself. But the action was treated throughout as not intended to cover damages to plaintiff for loss of service or society of the child. Indeed, there are no allegations in the complaint as to loss of service or society, and the plaintiff could not recover for physical injuries to the child on any other ground. In addition to this, it can hardly be supposed the mother meant to set up a claim of this kind without any allegation of the death of the father, who alone would be primarily entitled to make such claim. The case, therefore, has no analogy to an action for damages to the parent from seduction of a child. In such cases damages are allowed for the parent's wounded feelings, all courts regarding such actions as sui generis in this regard, and outside of the general principle applied to actions of parents for injuries to their children. It is obvious from the conduct of the case as disclosed by the record that the statements as to the injuries to the infant were placed in the complaint, not for the purpose of setting up a distinct cause of action, but to show circumstances of aggravation attending the injury to the mother, by reason of which her mental anguish and distress were greatly augmented.

It appears from the record, "when the case was called for trial, the defendant duly moved to strike from the complaint, as being irrelevant and redundant, and as not constituting the cause of action against the defendant, the following words from paragraph two: ``break the thigh bone of her said infant;' and from paragraph three the words in line two from the bottom of said paragraph, ``her said infant;' and from paragraph four the words, ``and her infant in arms;' and in line from the bottom of paragraph four the words ``and her infant.'" The defendant's motion to strike out the foregoing words from the complaint was overruled, the Court holding that "they were responsive to the issue of mental anguish and suffering; to this ruling the defendant duly excepted." The plaintiff, without making any objection that notice of the motion had not been given, opposed it on the merits, and thus waived the lack of notice. It will be observed that the motion was refused on the sole ground that the plaintiff might allege the injuries to her infant as a basis of damages to her growing out of her mental suffering caused thereby. The evidence referred to in the second exception, relating to the mental suffering of the plaintiff on account of the injury to her infant, was admitted by the Court on the same ground. The question involved was not the right to recover for injuries impairing the plaintiff's ability to meet her legal obligations to support the child. The cases of Youngblood v. R.R. Co., 60 S.C. 10,38 S.E., 232; Johns v. Ry. Co., 39 S.C. 162, 17 S.E., 698, andMathis v. Ry. Co., 53 S.C. 246, 31 S.E., 240, relied on by respondent, therefore, do not apply.

I quote the third exception, because it states distinctly the important question under consideration: "Because his Honor, in refusing to strike the words referred to in first exception from the complaint, and in permitting the plaintiff to testify as to injuries inflicted upon her baby and the effect this had upon her mind, erred, in that he allowed the jury to consider and to assess damages for the mental suffering of the plaintiff on account of injuries caused to another." The question here squarely presented, whether one upon whom physical injury is inflicted by a tort may recover for the mental anguish resulting from the physical injury to another member of his family, has never been directly decided in this State. True, it has been held that in actions for wilful tort all the facts and circumstances may be considered by the jury in awarding exemplary damages; but the cases so holding do not decide the question here involved. In Pickens v. R.R.Co., 54 S.C. 498, 32 S.E., 567, the plaintiff was allowed to testify as to sickness and pains produced by exposure to a storm which she encountered in leaving a railway station, in consequence of the defendant's failure to provide transportation from the station to her destination as it contracted to do.Marsh v. Tel. Co., 65 S.C. 430, involved the admissibility of similar testimony, where the exposure was due to the failure of defendant to deliver a telegram. In Young v.Tel. Co., 65 S.C. 93, the plaintiff alleged physical pain and discomfort at the funeral of his child, for which no arrangements had been made in consequence of defendant's failure to deliver a telegram. There was no claim for mental anguish. The question presented in these cases was, whether the plaintiff's own physical suffering and pain and consequent mental distress were not too remotely connected with the wrong of the defendant to be submitted to the jury. It is obvious the proposition contended for in the case under discussion is, that the jury may take into consideration not only the circumstances surrounding the plaintiff and affecting her directly as in the cases just cited, but also the circumstances surrounding her child and its suffering, and allow her damages for her mental anguish produced thereby.

Delivering the opinion of the Court in Lewis v. TelegraphCompany, 57 S.C. 330, 35 S.E., 556, Chief Justice Pope says: "There are a few of the Supreme Courts of the States of this Union which do uphold the doctrine that damages may be awarded for mental suffering disconnected with physical injury — such as Texas, Tennessee, North Carolina, Alabama and a few others. Our own State may be classed among those who adhere to the old common law rule." This general rule is not affected by the special statute on the subject relating to telegraph companies enacted since the case of Lewis v. Telegraph Company, supra, was decided. The doctrine adopted in this State, indicated by the language just quoted, precludes the idea that one himself without physical injury may connect his mental anguish to the physical injury of another and recover for it. If the plaintiff in this case had herself been uninjured by the fall, it would hardly be contended she could recover for the mental anguish of seeing her child injured. The fact that she herself was injured does not bring her mental suffering into any closer legal connection with the child's physical injury. If the latitude here contended for, is allowed, it will not only be a departure from precedents established in this State and elsewhere, but juries will have to go far afield in estimating, or rather conjecturing, the proper damages. There is no good ground for allowing a recovery for such suffering to a mother for her distress at the sufferings of her infant and denying it to a devoted wife on account of her husband, or to all members of a family for distress at the physical agony of one another. Indeed, if the doctrine is once admitted, there seems to be no reason why its application can be confined to members of one household or family. There are kinds of hardship and suffering growing out of breach of contract as well as tort which the law does not deny, and yet makes no attempt to compensate, because such attempt would, as a practical result, produce greater injustice and confusion. To attempt to give damages to one person for his mental suffering on account of injury to another, would be a striking example of an effort to carry the law beyond the province where the courts may expect to administer practical justice with reasonable certainty.

There are few reported cases in this county where the attempt has been made to recover for mental anguish caused by physical injuries inflicted on another. The view which I have endeavored to present is believed to be supported by the great weight of authority. Black v. R.R. Co., 10 La. Ann., 33 (63 Am. Dec., 587); Wyman v. Leavitt, 71 Me., 227 (36 Am. Rep., 303); Fillebrown v. Hoar, 124 Mass. 580;Keys v. R.R. Co. (Minn.), 30 N.W., 888; Stone v. Evans (Minn.), 20 N.W., 149; Cowden v. Wright, 24 Wendell, field on Negligence, sec. 761. The Court of Civil Appeals of Texas has gone very far in allowing damages for mental suffering; but that Court, in the case of Pullman Car Co. v.Trimble, 28 S.W. 96, has repudiated the doctrine here contended for, in this vigorous language: "It has, however, been repeatedly decided, that, in estimating the amount of damages one is to receive for a breach of a contract of carriage, or for a tort grounded upon such breach, of the kind here in question, his own mental anguish is to be taken into the account; and, in arriving at the degree of such suffering, all the environments of the injured party are to be considered. But even then we think the complaining party must be restricted to the mental anguish which emanates from the wrong done himself, and not extended to that which he may experience in contemplating the suffering of others who may be injured at the same time, however near to him they may be. Were the rule otherwise, each passenger in a railroad wreck might claim the right to recover, not only for the distress of mind which arose from his own injuries but also for that which he sustained from contemplating the mangled condition of his fellow-passengers; and even one who sustained no physical injury himself might be allowed to recover a large verdict for the anguish he endured while witnessing the bleeding forms of his companions and relatives, and listening to their heart-rending cries."

For the reasons above stated, the defendant's motion to strike out the statements as to the injury of the child of the plaintiff, should have been granted, and the objection to the testimony introduced as to her mental suffering caused by injuries to the child, should have been sustained. If there was error in this regard, it is manifest from an examination of the record it was quite prejudicial to defendant. I think the first, second and third exceptions are well founded, and that the judgment of the Circuit Court should, therefore, be reversed.

Petition for rehearing, filed herein August 5, 1903, was dismissed November 2, 1903, by the followingper curiam order:

After careful examination of the petition herein for a rehearing, this Court is satisfied that no material question of law or of fact has either been overlooked or disregarded.

It is, therefore, ordered, that the petition be dismissed, and that the order heretofore granted staying the remittitur be revoked.