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BOSLEY v. ANDREWS. (06/04/58)

June 4, 1958

BOSLEY, APPELLANT,
v.
ANDREWS.



Appeals, Nos. 70 and 71, March T., 1958, from judgments of Superior Court, April T., 1957, Nos. 27 and 28, affirming judgments of Court of Common Pleas of Mercer County, March T., 1952, No. 60, in case of Oliver H. Bosley et ux. v. Dale Andrews. Judgments affirmed.

COUNSEL

Walter A. Dart, Jr., with him Guy Thorne, and Enoch C. Filer, for appellants.

William J. Joyce, with him Martin E. Cusick and Weisen, Cusick, Madden, and Joyce, Acker & McKay, for appellee.

Before Jones, C.j. Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.

Author: Bell

[ 393 Pa. Page 162]

OPINION BY MR. JUSTICE BELL

Defendant's cattle strayed on to plaintiffs' farm and injured their crops, for which the jury gave plaintiffs a verdict of $179.99. Mrs. Mary Louise Bosley, the wife-plaintiff, sought to recover damages for a heart disability which resulted from her fright and shock upon being chased by a Hereford bull owned by defendant. The bull did not strike or touch plaintiff, and plaintiff suffered no physical injury. The Superior Court sustained the entry of a non-suit. Considering the record in the light most favorable to plaintiffs, the facts may be thus summarized.

On April 10, 1950, defendant's cattle got through the fence and went on to the plaintiffs' farm. Plaintiffs' daughter and grandson were driving the cattle off plaintiffs' property. Plaintiff, Mrs. Bosley came out to help them. Plaintiffs' daughter testified as follows: "As I was driving the cattle, ... mother was started up towards where I was at to help me and I told her ... That she didn't need to help me, that they were going all right, so she turned to go up to where my son was and when she turned a bull charged mother out of the herd as she turned and I hollered to her and I told mother then, I says, 'Mom, look out, there's a bull after you.' As she turned her head to look, the bull was charging her and she started to run and as she started to run, she collapsed."*fn1

Mrs. Bosley testified: "Q. What did you do when your daughter warned you about the bull? A. I turned around and looked, and he was coming at me with his head down, and I started to run, but I thought I could not get my legs to go and I choked up and I collapsed, and momentarily, I thought he was going to get me, I could just even feel that he was on top of me. Q. About

[ 393 Pa. Page 163]

    how far away from you was the bull when you first saw him? A. I would say around twenty-five feet. He looked awful close to me. I thought he was right on top of me."

Very fortunately, harassed by a dog, the bull either stopped or was diverted, and the evidence does not show that he got any nearer to Mrs. Bosley than approximately 25 feet. Plaintiff collapsed on the ground and had an attack of coronary insufficiency - shortness of breath, pain in her chest and an insufficiency of blood flowing into the artery into the heart. Her daughter called a doctor. Mrs. Bosley's two doctors, Dr. Gilbert A. Diehl and Dr. A. C. Ernstene, a heart specialist at the Cleveland Clinic, agreed that prior to this episode with the bull, Mrs. Bosley had had arteriosclerosis and cardiac insufficiency,*fn2 which resulted from arteriosclerosis; and that "the episode with the bull did not cause the coronary arteriosclerosis but it does constitute the trigger mechanism that brought the symptoms into clinical prominence." Arteriosclerosis is a hardening of the arteries which comes with age and is usually a long gradual process.

Dr. Diehl said: "A. ... Coronary insufficiency gives you discomfort and pain. Cardiac insufficiency is when the heart fails and cannot do the job it should, and I feel that she had had both of these as a result of the arteriosclerotic heart disease."

Dr. Diehl further testified that plaintiff's heart was of normal size every time he examined her, that he found no enlargement of her heart, no physical damage, no occlusion, thrombosis and no embolism. Mrs. Bosley did not know that she had arteriosclerosis or a cardiac insufficiency and had never previously suffered pain therefrom.

[ 393 Pa. Page 164]

Plaintiff's doctors further testified that any violent exertion or shock, or sudden death in the family or a near accident while riding in an automobile could have produced the same result.

Plaintiff was a very nervous woman and had on a number of occasions after this episode fainted from coronary or cardiac insufficiency without any outside or known cause. She fainted when she was being examined in 1953 by defendant's doctor, and she also fainted in the courtroom. Dr. Diehl ascribed these fainting spells to a combination of nervousness and cardiac insufficiency.

The rule is long and well established in Pennsylvania that there can be no recovery of damages for injuries resulting from fright or nervous shock or mental or emotional disturbances or distress, unless they are accompanied by physical injury or physical impact:*fn3 Koplin v. Louis K. Liggett Co., 322 Pa. 333, 185 A. 744; Ewing v. Pittsburgh C. & St. L. Ry. Co., 147 Pa. 40, 23 A. 340; Fox v. Borkey, 126 Pa. 164; Huston v. Freemansburg Borough, 212 Pa. 548, 61 A. 1022; Morris v. Lackawanna and Wyoming Valley Railroad Co., 228 Pa. 198, 77 A. 445; Howarth v. Adams Express Company, 269 Pa. 280, 112 A.2d 536; Hess v. Philadelphia Transportation Co., 358 Pa. 144, 56 A.2d 89; Potere v. Philadelphia, 380 Pa. 581, 112 A.2d 100; Gefter v. Rosenthal, 384 Pa. 123, 119 A.2d 250.

In the leading case of Koplin v. Liggett Co., 322 Pa., supra, plaintiff claimed damages because she became nauseated by the presence of a centipede in the spoon with which she was eating her soup, and was made sick for several weeks. This Court denied recovery and

[ 393 Pa. Page 165]

    said (page 335): "'There can be no recovery for injuries resulting from fright, or a nervous shock, unaccompanied by physical injuries': Howarth v. Adams Express Co., 269 Pa. 280, 112 Atl. 536 ..."

In Morris v. Lackawanna and Wyoming Valley Railroad Co., 228 Pa., supra, plaintiff claimed damages for a miscarriage resulting from a nervous shock occasioned by the electric car in which she was riding bumping over the track at an open switch. This Court denied recovery and said (page 200): "... The learned court below followed the rule of our Pennsylvania cases in holding that there can be no recovery of damages for bodily or mental suffering resulting from fright unconnected with physical injury. While, it is true, this rule has been relaxed more or less in some jurisdictions, it has been uniformly upheld and applied in our state: Fox v. Borkey, 126 Pa. 164; Ewing v. Railway Co., 147 Pa. 40; Linn v. Duquesne Boro., 204 Pa. 551; Huston v. Freemansburg Boro., 212 Pa. 548; Chittick v. Rapid Transit Co., 224 Pa. 13. In very recent cases the rule has been reiterated as being settled law here."

In Ewing v. Pittsburgh C. & St. L. Ry. Co., 147 Pa., supra, plaintiff's statement of claim averred that by a collision on defendant's railroad which occurred through the negligence of defendant's employees, defendant's cars were derailed and thrown against plaintiff's dwelling and she was thereby subjected to great fright, fear and nervous distress, became sick and disabled and was unable to attend to her usual work and duties. A demurrer to the statement of claim was sustained because plaintiff's fright and nervous distress were unaccompanied by bodily injury.

In Fox v. Borkey, 126 Pa., supra, plaintiff was husking with her husband. An explosion occurred which was caused by defendant's blasting; the earth trembled

[ 393 Pa. Page 166]

    and dirt blew over them as if it were hail. Plaintiff fell to the ground, trembling all over with shock; she became very nervous and had heart trouble and "was reduced to a physical wreck by the grossly negligent, if not intentional, misconduct of the defendant." The Court denied recovery.

In Potere v. Philadelphia, 380 Pa., supra, a contractor and the city were held jointly liable for a cave-in of a city street as the result of which plaintiff suffered physical injuries and a severe shock to his nervous system which was diagnosed as an anxiety neurosis. The Court said (page 589): "It has been well established that in the absence of physical injury or physical impact, mental or emotional distress is not the subject of legal redress: Linn v. Duquesne Borough, 204 Pa. 551, 54 A. 341; Koplin v. Louis K. Liggett Company, 322 Pa. 333, 185 A. 744. However, where, as here, a plaintiff sustains bodily injuries, even though trivial or minor in character, which are accompanied by fright or mental suffering directly traceable to the peril in which the defendant's negligence placed the plaintiff, then mental suffering is a legitimate element of damages: Applebaum v. Philadelphia Rapid Transit Co., 244 Pa. 82, 90 A. 462; Hess v. Philadelphia Transportation Company, 358 Pa. 144, 56 A.2d 69."

Similarly, in Hess v. Philadelphia Transportation Co., 358 Pa., supra, a recovery was allowed plaintiff for his physical injuries and neuroses which developed from the terrible fright resulting from an electric shock which came from an over-head loose trolley wire which came in contact with plaintiff's car. The electric shock lifted plaintiff up out of the seat of the car. He hit the steering wheel. The Court allowed recovery for the physical injury and for the injury to plaintiff's nervous system resulting from the fright, and said (pages 147, 148): "That there can be no recovery for

[ 393 Pa. Page 167]

    injuries resulting from fright, or a nervous shock, unaccompanied by physical injuries is the established law in this state. See Koplin v. Louis K. Liggett Co., 322 Pa. 333, 185 A. 744; Howarth v. Adams Express Co., 269 Pa. 280, 112 A. 536; Ewing v. Pittsburgh, Cincinnati and St. Louis Ry. Co., 147 Pa. 40, 23 A. 340; Huston v. Freemansburg Boro, 212 Pa. 548, 61 A. 1022. In the latter case Chief Justice MITCHELL characterized 'mere mental disturbance' as being too 'intangible, so untrustworthy, so illusory and so speculative' to be a cause of action. However, in applying the above rule, a 'nervous shock' must be distinguished from an 'electric shock'. An electric shock is 'a direct physical and personal assault', and any fright or nervous disorder arising from such an 'assault' negligently caused is compensable in damages ... 'Mental suffering, as distinct from bodily pain, can be considered in an action for damages for injury to the person, when such suffering is attendant upon and results from a physical injury: Wilcox v. Richmond & Danville Ry. Co., 52 Federal Reporter, 264.'"

Plaintiff cites a number of decisions of this Court to support her claim but fails to realize that in those cases where recovery was allowed for nervous shock, the nervous shock was accompanied by physical injuries, and that all of her cases recognize and reiterate the above mentioned well settled rule.*fn4 What plaintiff is really asking us to do is to review and change the rule which has been so long and clearly established by our cases, because the courts of many other States and the Restatement allow recovery for shock and emotional

[ 393 Pa. Page 168]

    disturbances where there has been no physical injury or physical impact.

To allow recovery for fright, fear, nervous shock, humiliation, mental or emotional distress - with all the disturbances and illnesses which accompany or result therefrom - where there has been no physical injury or impact, would open a Pandora's box. A plaintiff might be driving her car alertly or with her mind preoccupied, when a sudden or unexpected or exceptionally loud noise of an automobile horn behind or parallel with her car, or a sudden loud and unexpected fire engine bell or siren, or a sudden unexpected frightening buzz-sawing noise, or an unexpected explosion from blasting or dynamiting, or an unexpected nerve-wracking noise produced by riveting on a street, or the shrill and unexpected blast of a train at a spot far from a crossing, or the witnessing of a horrifying accident,*fn5 or the approach of a car near or over the middle line, even though it is withdrawn to its own side in ample time to avoid an accident, or any one of a dozen other everyday events, can cause or aggravate fright or nervous shock or emotional distress or nervous tension or mental disturbance. Such an event, if compensable, may cause normal people, as well as nervous persons and persons who are mentally disturbed or mentally ill, to honestly believe that the sudden and unexpected event caused them fright or nervous shock or nervous tension with subsequent emotional distress or suffering or pain or miscarriage or heart attack, or some kind of disease. In most cases, it would be impossible for medical science to prove that these subjective symptoms could not possibly have resulted from or been aggravated or precipitated by fright or nervous shock or nervous tension or emotional disturbance or distress, each of which

[ 393 Pa. Page 169]

    can in turn produce an ulcer or headaches or fainting spells or, under some circumstances, a heart attack, or a serious disease. For every wholly genuine and deserving claim, there would likely be a tremendous number of illusory or imaginative or "faked" ones. Medical science, we repeat, could not prove that these could not have been caused or precipitated or aggravated by defendant's alleged negligent act.

We have considered all of the contentions of the plaintiffs but find no merit in them.

Mr. Justice COHEN dissents.

Disposition

The judgment of the Superior Court is affirmed in each appeal.

ING OPINION BY MR. JUSTICE MUSMANNO:

Like those human beings who believe that fame and fortune always lie in some land distant from their own, the cows of the Dale Andrews farm in West Salem, Mercer County, were not satisfied to browse and chew their cuds in their own pasture. They were certain that in the fields across the highway which bordered their owner's domain, the grass was greener, the earth fresher, the trees shadier, and the skies above bluer. Thus from time to time they would leave their own preserves and invade the Bosley farm on the other side of the road where, with the spirit of bovine buccaneers, they devoured their neighbor's corn and wheat, destroyed his vegetable gardens, knocked over young peach trees, damaged the apple orchard, mangled berry bushes, and eventually departed, leaving behind them a wide swath of ruin and destruction. They sometimes went away of their own accord, but frequently they had to be driven back to their home territory by the Bosleys.

[ 393 Pa. Page 170]

On the morning of April 10, 1950, at about 9 o'clock they ambled over to the Bosley farm to breakfast in the fields which were the scene of former invasions but before they reached the regurgitation stage, Mrs. Evelyn Turner (married daughter of the Bosleys), assisted by a trained cattle dog, which was half collie and half of indeterminate breed, headed them off and sent them mooing back to their own pastures. By noon, however, they forgot their defeat of the morning and decided to visit the Bosleys for lunch. ...


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