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BOSLEY ET UX. v. ANDREWS. (10/07/57)

October 7, 1957

BOSLEY ET UX., APPELLANTS,
v.
ANDREWS.



Appeals, Nos. 27 and 28, April T., 1957, from judgment of Court of Common Pleas of Mercer County, March T., 1952, No. 60, in case of Oliver H. Bosley et ux. v. Dale Andrews. Judgment affirmed.

COUNSEL

Enoch C. Filer, with him Guy Thorne, for appellants.

Willam J. Joyce, with him Martin E. Cusick, Cyril T. Garvey, and Weisen, Cusick, Madden, Joyce, Acker & McKay, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Woodside

[ 184 Pa. Super. Page 397]

OPINION BY WOODSIDE, J.

Oliver H. Bosley and his wife, Mary, are seeking to recover damages from Dale Andrews, owner of a neighboring farm, whose cattle strayed on to the Bosley farm.

The complaint in trespass contained three counts. In the first count, the plaintiffs seek to recover for damages to their crops; in the second, the wife seeks to recover for injuries to her person; and in the third, the husband seeks to recover for expenses and loss of companionship due to his wife's injuries.

At a prolonged trial the court granted a compulsory non-suit as to the last two counts but submitted the

[ 184 Pa. Super. Page 398]

    first count to the jury, which found a verdict for the plaintiffs in the amount of $179.99. The plaintiffs filed a motion for a new trial alleging that the entry of the compulsory nonsuits was error. Upon failure of the court below to grant a new trial the plaintiffs appealed.

The evidence, which for the purposes of our consideration must be viewed in the light most favorable to the plaintiffs, Gordon v. London & Lancashire Indemnity Co., 180 Pa. Superior Ct. 45, 117 A.2d 778 (1955), shows that on numerous occasions the cattle of the defendant trespassed upon the land of the plaintiffs and damaged their crops. It further shows that on April 10, 1950, eight Hereford cows and one bull belonging to the defendant, entered the plaintiffs' premises from the highway through their front yard and peach orchard. The plaintiffs' daughter, Mrs. Turner, and her small boy, with the aid of a dog, attempted to drive the cattle off of the plaintiffs' land. After telephoning to the defendant's farm to have someone come for the cattle, the plaintiff, Mary Bosley, went to join her daughter. As she did so, the bull put his head down and charged her. She did not see the bull until her daughter shouted to her, at which time it was only about 25 feet away. Mrs. Bosley turned to run, took a few steps, "maybe five," suffered a heart attack, and fell unconscious to the ground. Before the bull reached her, it was driven away by the dog. The plaintiff was not touched by the bull or any of the cows.

Ordinarily, a possessor of livestock which intrude upon the land of another is liable for their intrusion and for any harm done while upon the land to its possessor or a member of his household although the possessor of the livestock exercised the utmost care to prevent them from intruding. Restatement, Torts, ยง 504; Rossell v. Cottom, 31 Pa. 525 (1858); Hilton v. Overly,

[ 184 Pa. Super. Page 39969]

Pa. Superior Ct. 348 (1918); Ramsey v. Martin, 45 Pa. Superior Ct. 645 (1911); Troth v. Wills, 8 Pa. Superior Ct. 1 (1898). This, however, is not the issue presented to us. The defendant does not here question his liability for damages to the plaintiffs' crops. Nor does he seriously question his liability for physical injuries to the wife-plaintiff's person had the bull come into contact with her. His contention is that she is seeking to recover for injuries resulting from fright and nervous shock unaccompanied by physical contact, and that for these injuries he is not liable. The court below agreed with this contention. We do, too.

There are few rules more firmly settled by our Supreme Court than that "There can be no recovery for injuries resulting from fright, or a nervous shock, unaccompanied by physical injuries." Koplin v. Louis K. Liggett Co., 322 Pa. 333, 335, 185 A. 744 (1936). The Court there said that this rule "is settled in this State and no longer open for discussion."

The rule has been applied in numerous cases: Huston v. Freemansburg, 212 Pa. 548, 61 A. 1022 (1905); Fox v. Borkey, 126 Pa. 164, 17 A. 604 (1889); Morris v. Lackawanna & Wyoming Valley Railroad Co., 228 Pa. 198, 77 A. 445 (1910), and others cited elsewhere in this opinion.

Within the last two years Mr. Justice CHIDSEY said in Potere v. Philadelphia, 380 Pa. 581, 589, 112 A.2d 100 (1955) that "in the absence of physical injury or physical impact, mental or emotional distress is not the subject of legal redress," and Mr. Justice BELL said in Gefter v. Rosenthal, 384 Pa. 123, 125, 119 A.2d 250 (1956). "There can be no recovery for humiliation, disappointment, anxiety, or mental suffering, or emotional distress when unconnected with physical injury or physical impact."

[ 184 Pa. Super. Page 400]

The rule was stated, but recovery allowed because of physical injuries or impact, in Hess v. American Pipe Mfg. Co., 221 Pa. 67, 70 A. 294 (1908) where the plaintiff was cut by flying glass and thrown on a chair by the force of a concussion; and in Applebaum v. Philadelphia Rapid Transit Co., 244 Pa. 82, 90 A. 462 (1914) where the plaintiff was in an automobile which collided with another vehicle, and her side and shoulder were struck by the window sill and side of the car; and in Kramer v. Pittsburgh Rys. Co., 247 Pa. 352, 93 A. 461 (1915) where the plaintiff suffered a spinal injury in a street-car accident; and in Howarth v. Adams Express Co., 269 Pa. 280, 282, 112 A. 536 (1921) where the plaintiff suffered "an actual physical injury to her back" when a truck hit her home; and in Hess v. Philadelphia Transportation Co., 358 Pa. 144, 147, 148, 56 A.2d 89 (1948) where the plaintiff suffered an electrical shock, which is considered "a direct physical and personal assault."

In the case before us it is clear from the pleadings and the evidence that the injuries for which the plaintiffs are seeking to recover were those suffered by reason of fright and shock.

The plaintiffs allege in the complaint that "... the plaintiff, Mary Louise Bosley ... attempted to drive the cattle from the premises of the plaintiffs, and when so doing, the bull charged upon her and she ran and fell from fright... That by reason of fright and shock she suffered an injury to her heart and nervous system." (Emphasis ours)

Mary Louis Bosley testified: "(My daughter) was driving (the cattle) out of the wheat field and ... I was walking up towards where the little boy was and she screamed and said there was a bull after me ... I turned around and looked, and he was ...


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