Wyoming Law Journal
Volume 3 Number 4 Article 9
December 2019
Physical Injury without Impact
John R. Kochevar
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John R. Kochevar, Physical Injury without Impact, 3 WYO. L.J. 232 (1948)
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WYOMING LAW JOURNAL
of the reasons for the application of the doctrine of res ipsa is that the plaintiff is
not in a position to know the facts constituting the negligence or causing the injury
and the facts are not accessible to him.17 This is especially true in malpractice
cases since the patient generally submits himself to the treatment or operation
having no knowledge of the medical and scientific effects and consequences. Also,
it has been suggested by some courts that it is difficult for the plaintiff to persuade
one member of the medical profession to testify against another. 18 These factors
relate to the difficult burden cast upon the plaintiff in a malpractice suit. Thus it
may be argued as a matter of policy that the courts would be justified in requiring
the physician or surgeon to explain away a presumption or inference of negligence,
in view of the fact that he has knowledge of the facts attending the injury and
can more readily invoke the aid of expert testimony.
A contrary policy, and one which the courts have adopted generally, is that
expressed by Justice Taft: "A physician is not a warrantor of cures. If the maxim,
'Res ipsa loquitur', were applicable to a case like this, and a failure to cure were
held to be evidence, however slight, of negligence on the part of the physician or
surgeon causing the bad result, few would be courageous enough to practice the
healing art, for they would have to assume financial liability for nearly all the 'ills
that flesh is heir to'." 19
KENNETH W. KELDSEN
PHYSICAL INJURY WITHOUT IMPACT
The new owner of an apartment house designated his two daughters manager
and assistant-manager of the business. Three days later the plaintiff found her
key would not open her apartment door as it had been bolted from the inside and
she went to the office to complain. The assistant manager leaned against the door
blocking the way while the owner and manager yelled and screamed at plaintiff
that the O.P.A. could not run the apartment house and that they would select
their own tenants. No bodily contact took place between the parties but plaintiff
was not permitted to leave at will. The court found, upon ample evidence, that
the conduct of defendants caused plaintiff to become frightened, and a proximate
result thereof, to suffer an upset of her glandular condition, causing shortness of
breath, nervousness, headaches, loss of sleep, and inability to carry on her normal
activities. The plaintiff sought damages for loss of personal property and for
personal injuries. The lower court allowed damages as prayed for. Held, that
the defendants intentionally and unreasonably subjected the plaintiff to severe
mental stress causing physical injuries as a proximate result thereof and for which
17. Ybarra v. Spangard, 25 Cal. (2d) 486, 154 P. (2d) 687, 162 A. L. R. 1258 (1944).
18. Christie v. Callahan, 124 F. (2d) 825 (App. D. C. 1941) ; Simon v. Freidrich, 163
Misc. 112, 296 N. Y. S. 367 (N. Y. City Ct. 1937) ; Coleman v. McCarthy, 53 R. I.
266, 165 At. 900 (1933) ; Johnson v. Winston, 68 Neb. 425, 94 N. W. 607 (1903)
Reynolds v. Struble, 128 Cal. App. 716, 18 P. (2d) 690 (1933).
19. Ewing v. Goode, 78 Fed. 442, 443 (C. C. S. D. Ohio 1897).
RECENT CASES
damages will properly lie even though no physical impact was present. Judgment
affirmed. Emden v. Vitz et al, 198 P. (2d) 696 (Cal. 1948).1
"In respect of the right to maintain an action for a bodily enjury or illness
resulting from a mental or emotional disturbance, the authorities are in a state
of dissension probably unequaled in the law of torts!"2 In 1888, England 3 and
the United States4 declared there could be no recovery for physical injuries re-
sulting from mental disturbance when no actual physical impact was present.
Recovery was denied in Victorian Railways Commissioners v. Coultas5 on the
grounds that there was no precedent for such a recovery; that such claims are very
difficult of proof; that damages are too remote; that such a recovery would open
the field to imaginary claims. The New York court6 denied recovery on the ground
of no precedent. Two years later an Irish court 7 declined to follow these cases
and allowed recovery. In the United States two miscarriage cases8 followed and
in both jurisdictions fright was said to be the proximate cause of the miscarriage
and recovery was allowed. Massachusetts, 9 New York,10 Pennsylvania, 11 and
the United States Circuit Court of Appeals for the Fifth Circuit12 threw their
weight in favor of a denial of recovery within a period of five years. A split of
authority had already developed.
The case of Dulieu v. White and Sons,13 decided by the King's Bench in
1901, expressly refused to follow Victorian Railways Commissioners v. Coultas
and is considered to be a turning point in law and recovery for injuries occasioned
through fright. This case however was a premature birth case and is analogous to
miscarriage cases!4 in which recovery is usually allowed. Courts are much more
prone to allow recovery in miscarriage cases and have allowed recovery even
though the fright was aroused by fear for the safety of a third person.15 Recently
1. The mere temporary emotion of fright not resulting in physical injury is no injury in
contemplation of law and no recovery can be had thereon unless the emotion was
caused by wilfulness, wantoness or inhumanity. Fright, as used in the text of this
article, refers to that type of fright which produces a resulting physical injury. The
following resultant injuries have been held by various courts to be the basis of sus-
tainable action: physical weakness, physical pain, loss of appetite, insomnia, nervous
convulsions, nervous prostration, fever, vomiting, loss of memory, neurasthemia, -in-
sanity, undue fatigue, glandular defects and abnormalities, suffering from cold and
wet.
2. 52 Am. Jur. 399.
3. Victorian Railways Commissioners v. Coultas, 13 App. Cas. 222 (1888).
4. Lehman v. Brooklyn City Railway, 47 Hun. 355 (N. Y. 1888).
5. Victorian Railways Commissioners, supra.
6. Lehman v. Brooklyn City Railway, supra.
7. Bell v. Great Northern Railway, L. R. 26 Ir. 428 (1890).
8. Hill v. Kimball, 76 Tex. 210, 13 S. W. 59, 7 L. R. A. 618 (1890) ; aff'd, Gulf, C. &
S. F. Ry. v. Hayter, 93 Tex. 239, 54 S. W. 944, 47 L. R. A. 325, 77 Am. St. Rep. 856;
Purcell v. St. Paul City Ry., 48 Minn. 134, 50 N. W. 1034, 16 L. R. A. 203 (1892).
9. Spade v. Lynn & Boston Ry., 168 Mass. 285, 47 N. E. 88 (1897).
10. Mitchell v. Rochester Railway, 151 N. Y. 107, 45 N. E. 354 (1896).
11. Ewing v. Pittsburgh C. C. & St. L. Ry., 147 Pa. St. 40, 23 Atl. 340 (1890).
12. Hailes' Curator v. Texas & Pacific Ry., 60 Fed. 557 (C. C. A. 5th 1894).
13. Dulieu v. White & Sons, 2 K. B. 669 (1901), 70 L. J. K. B. (N. S.) 837 (1901).
14. Whitsel v. Watts, 98 Kan. 508, 159 Pac. 401, L. R. A. 1917A, 708 (1916) ; Holdorf v.
Holdorf, 184 Iowa 1370, 169 N. W. 737 (1918) ; Hanford v. Omaha & C. B. Street Ry.,
113 Neb. 423, 203 N. W. 643, 40 A. L. R. 970 (1925) ; Hambrook v. Stokes, 1 K. B.
141 (1925) ; Mitnick v. Whalen Bros. Inc., 115 Conn. 650, 163 At. 414 (1932).
15. Engle v. Simmons, 148 Ala. 92, 41 So. 1023, 7 L. R. A. (N. S.) 96, 121 Am. St. Rep.
59, 12 Ann. Cas. 740 (1906); Alabama Fuel & Iron Co. v. Baldoni, 15 Ala. App. 316,
73 So. 205 (1916).
WYOMING LAW JOURNAL
doubt as to the validity of such claims has developed as obstetrical research has
resulted in the medical view that fright cannot cause abortion.16
"Whenever it is possible to do so without too obvious pretense, the effort has
been to find a technical battery, an assault, a false imprisonment, a trespass, or an
invasion of the 'right of privacy;' but in a number of recent cases where the court
was faced squarely with the issue, it has proceeded to discard all pretexts and hold
the defendant liable for the infliction of mental suffering alone."17 In the Western
States the tendency toward liberality and recovery in such cases has been strong.
California has been a leader in this field of law. As early as 1889 recovery was
allowed a woman who suffered a three month illness as a result of fright induced
by a forcible trespass on her land.18 Later recovery was allowed a woman who
was removed from a train although she had paid full fare to her destination.19
An attack by a marauding chimpanzee on a woman and her children was also held
to be sufficient basis for recovery for injuries sustained through fright.20 Montana
has allowed recovery for negligent blasting 2 i with resulting fright. Damages were
allowed in South Dakota22 when the court decided that fright was the proximate
cause of the injury. The Supreme Court of Kansas has given recovery in the
typical miscarriage situation 2 3 and in a case in which the body of the plaintiff's
husband was delayed while on route to burial.24 Nebraska allowed recovery in a
miscarriage suit 2 5 and Oklahoma gave damages for ills induced by threats to a
husband.26 Utah has allowed a woman to recover for fear that her husband
would be shot.27 In 1933 Washington denied recovery on the theory that the
injury was too remote28 but in 1935 allowed damages in a miscarriage case. 29 It
appears that the Western States have repudiated the old rule which required a
physical impact as a door to recovery.
This trend of liberality has long prevailed and has not been restricted to the
Western States alone. Some courts have allowed the plaintiff relief for the
resulting injury merely if the act was negligent and was the proximate cause of
the injury,30 or the injury followed as a natural consequence of the fright.31
Others have held there can be no action for mere fright alone but award damages
when a physical ill results. 32 One case said damages could be awarded for mere
fright alone if the act was willful or wanton but negligence would sustain a re-
16. 15 U. Chi. L. R. 188.
17. Prosser, Torts 61 (1941).
18. Razzo v. Varni, 181 Cal. 289, 22 Pac. 848 (1889).
19. Sloane v. Southern Cal. Ry., 111 Cal. 668, 44 Pac. 320, 32 L. R. A. 193 (1896).
20. Lindley v. Knowlton, 179 Cal. 298, 176 Pac. 440 (1918).
21. Cashin v. Northern Pac. Ry., 96 Mont. 92, 28 P. (2d) 862 (1934).
22. Sternhagen v. Kozel, 40 S. D. 396, 167 N. W. 398 (1918).
23. Whitsel v. Watts, supra.
24. Clemm v. Atchinson, T. & S. F. Ry., 126 Kan. 181, 268 Pac. 103 (1928).
25. Hanford v. Omaha C.B. Street Ry., supra.
26. Carrigan v. Henderson, 192 Okla. 254, 135 P. (2d) 330 (1943).
27. Jeppsen v. Jensen, 47 Utah 536, 155 Pac. 429, L. R. A. 1916D, 614 (1916).
28. Cherry v. General Petroleum Corp. of Cal., 172 Wash. 698, 21 P. (2d) 520 (1933).
29. Frazee v. Western Dairy Products, 182 Wash. 578, 47 P. (2d) 1037 (1935).
30. Yoakum v. Kroeger, 27 S. W. 953 (1894); Spaugh v. Atlantic Coast Line Ry., 158
S. C. 25, 155 S. E. 145 (1930).
31. Simone v. Rhode Island Co., 28 R. I. 186, 66 Atl. 202, 9 L. R. A. (N. S.) 740 (1907).
32. Arthur v. Henry, 157 N. C. 438, 73 S. E. 211 (1911) ; Memphis St. Ry. v. Bernstein,
137 Tenn. 637, 194 S. W. 902 (1917).
RECENT CASES
covery if a physical ill followed.33 Many courts have given relief when the act
was willful or wanton. 34 The doctrine of foreseability is still applied occasionally
in some jurisdictions.3 5 All courts have not yet adopted this modern spirit and a
few insist on clinging to the old rule of necessity of impact.3 6 The majority of the
cases certainly indicate that the trend is liberal and spreading in its scope. The
old restrictions laid down in Victorian Railways Commissioners v. Coultas and
Lehman v. Brooklyn City Railway have been impliedly overruled by numerous
courts and expressly by others,3 7 and they should be considered as no longer valid
in modern law.
The instant case would seem to have been correctly decided in view of the
modern tendencies to award a redress for every actionable wrong regardless of the
source or cause of the injury. All the necessary elements of recovery were found
to exist in the present litigation. Certainly no sound reason can be given why
injuries resulting from an impact should be held to permit recovery and those not
so resulting be precluded from the same consideration. The courts have a duty to
provide redress for every actionable wrong and cannot be said to be properly min-
istering justice while yet espousing falacious reasoning established by a few
tribunals over a half a century ago. The reasoning set down at that time was
clearly erroneous and can certainly have no just application in modern law.
Courts should rid themselves of these shackles and afford a remedy for fright cases
whenever the merits of the particular case warrant such.
JOHN R. KoCHEVAR
SUBROGATION UNDER THE FEDERAL TORTS CLAIMS ACT
An army plane crashed into a building insured by plaintiff insurance com-
pany. The owner brought suit against the United States under the Federal Torts
Claims Act.1 Plaintiff insurance company having paid for the loss, moved for
leave to intervene as a subrogee to the insured's rights. The District Court denied
on the grounds the act does not expressly grant consent to suit by subrogees, and
that the act being a relinquishment of sovereign immunity, it must be strictly
construed. Held, the claim exists on account of damage to the property and there
is no need to resort to the rule of strict construction of statutes in derogation of
sovereign immunity where a statute contains a clear and sweeping waiver of
immunity from suit on all claims with certain well defined exceptions. Employ-
ers Fire Insurance Company v. United States, 167 F. (2d) 655 (C. A. 9th 1948).
33. Hines v. Evans, 5 Ga. App. 829, 105 S. E. 59 (1920).
34. Janvier v. Sweeney, 2 K. B. 316 (1919), 88 L. J. K. B. 1231 (1919); Johnson v.
Sampson, 167 Minn. 203, 208 N. W. 814, 46 A. L. R. 772 (1926) ; Continental Casualty
Co. v. Garrett, 173 Miss. 676, 161 So. 753 (1935) ; Marcelli v. Teasley, 72 Ga. App.
421, 33 S.E. (2d) 836 (1945).
35. Orlo v. Connecticut Co., 128 Conn. 231, 21 Atd. (2d) 402 (1941) ; Houston Electric Co.
v. Dorsett, 145 Tex. 95, 194 S. W. (2d) 546 (1946).
36. State ex. rel. & to Use of Renz v. Dickens, 95 S. W. (2d) 847 (1936).
37. Spearman v. McCrary, 4 Ala. App. 473, 58 So. 927 (1912) ; Alabama Fuel & Iron Co.
v. Baldoni, supra; Simone v. Rhode Island Co., supra.
1. 60 Stat. 842, 28 U. S. C. Sec. 921 (1946), as amended, 61 Stat. 722 (1947), 28 U. S. C.
Sec. 931 (Supp. 1948).
