xt70zp3vt865_172 https://exploreuk.uky.edu/dips/xt70zp3vt865/data/mets.xml https://exploreuk.uky.edu/dips/xt70zp3vt865/data/63m46.dao.xml unknown 14 Cubic Feet 31 boxes archival material 63m46 English University of Kentucky Copyright has not been assigned to the University of Kentucky.  Contact the Special Collections Research Center for information regarding rights and use of this collection. Harkins Family papers Mineral rights -- Kentucky -- Floyd County -- History. Law reports, digests, etc. -- Kentucky. Mining leases -- Kentucky -- Floyd County -- History. Practice of law -- Kentucky. Bankers -- Kentucky. Banks and banking -- Kentucky -- Prestonsburg. Coal trade -- Kentucky -- Floyd County -- History. Lawyers -- Kentucky. Chesapeake and Ohio Railway Company v. Robinnette, Elizabeth text Chesapeake and Ohio Railway Company v. Robinnette, Elizabeth 2016 https://exploreuk.uky.edu/dips/xt70zp3vt865/data/63m46/Box_19/Folder_6/0001.pdf 1905-1913 1913 1905-1913 section false xt70zp3vt865_172 xt70zp3vt865 I "‘«fi' ,.°.\V.~.":EQT'.< '1" ‘ i -. ‘2 e I“ 7" '36 11.5 "’."3‘ " ~“11 3‘" ' ‘ . '.“ ., 1, ‘3‘; W353; [.':srfs’k I IL F“ y("ii-“(..fiy“ .‘ y l V
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1913. CHESAPEAKE & O. R. CO. v. ROBINETT. 433
KENTUCKY COURT OF APPEALS. against him if, without provocation, the
one pushed assaulted the conductor, who,
CHESAPEAKE & OHIO RAILWAY COM- using no more force than was or reasonably
PANY, Appt., appeared to be necessary, repelled the at-
v. tack, and in so doing pushed him against
ELIZABETH ROBINETT. the complaining passenger-
Damages — assault — physical and men-
(151 Ky. 778, 152 S. W. 976.) tal suffering.
4. The damages for wrongful assault of a
Carriers — fright of passenger — as- passenger by pushing another against her,
Sault on relative. causing physical injury and mental suffer-
1. A carrier is not liable for fright of a ing, are such as will reasonably compensate
passenger by wrongfully assaulting her her for the physical and mental suffering
father, and ejecting him from the train, directly caused by the physical impact and
in her presence, and leaving her to pursue fright.
’3 her journey alone. Same — punitive -— malicious assault.
Same — pushing one passenger against 5. For injuries inflicted upon a passenger
., another — assault. by pushing another against him in com-
2. A carrier which, in wrongfully eject- mitting a. malicious assault, punitive dam-
ing a passenger from the train, knocks or ages may be allowed within the amount
throws him against his daughter to her in- claimed in the complaint.
Jury: ls liable for the Injury and fright Carriers — assault of fellow passenger
which may result to her therefrom. _ effect.
Same—wrongful attack—liability. 6. A passenger cannot recover damages
3. A carrier is not liable for an assault for injury inflicted upon her by the pushing
upon one passenger by pushing another against her by the train hands of her father.
Nata—Carrier: liability for frighten- from the fright, or, in other words, where
ing passenger. there is mere fright alone, forming one
_ class; those cases where there was no
I. Introduction, 433. physical impact, but physical injury re-
II. No physical impact and no physical suited from the fright, forming another
injury, 435. class; and the third class comprising those
III. No physical impact but physical in- cases in which both physical impact and
jury resulting from fright. physical injury resulting from fright were
a. Treating resulting injury as in- elements for consideration.
cidental to fright, 435. It is the well-settled rule as deduced
b. Doctrine of expediency, 436. from the cases comprised in the first class
c. Theory of proximate cause, 437. mentioned, that mere fright cannot form
d. Miscellaneous cases, 439. the basis of a cause of action, and there-
IV. Both physical impact and physical in- fore that no recovery can be had where
jury resulting from fright, 440. there is no physical impact and' no physical
V. Fright resulting from deliberate act injury attendant upon or resulting from the
directed toward person injured. 44l. fright.
VI. Fright inducing an act causing in- In the second class of cases above re-
jury, 443. ferred to, the authorities are in a state of
VII. Fright because of another’s danger, conflict probably unequaled in the law of
445. negligence. Recovery has been denied
principally upon three theories, namely;
1. Introduction. (1) That since there can be no recovery
for fright alone it must necessarily fol-
’ The general question of the right to re- low that there can be no recovery for the
- cover for physical injury resulting from consequences of fright; (2) that on the
1, fright caused by a. wrongful act is treated ground of mere expediency, recovery must
in the notes to Huston v. Freemansburg. 3 be denied because of the danger of opening
L.R.A.(N.S.) 49; Cliittick v. Philadelphia the door to fictitious litigation and the
Rapid Transit Co. 22 L.R.A.(N.S.) 1073; impossibility of estimating the damages:
and Pankopf v. Hinkley, 24 L.R.A.(N.S.) (3) and that physical injury resulting
1159. And as to liability of carrier for from fright caused by negligence is not the
_ injuries to pregnant woman by seeing luna- proximate result of the negligence. Upon
tic on train, see note to Louisville & N. R. analysis, however, none of these rules seem
Co. v. Brewer, 39 L.R.A.(N.S.) 647. to be tenable. In the first place, the courts
As to liability for mental suffering of which agree that, if there can be no rc-
passenger from more verbal abuse unaccom- covery for fright alone, it must logically
panied by other breach of duty, see notes follow that there can be no recovery for
to St. Louis, I. M. & S. R. Co. v. Taylor, the consequences of the fright, seem to pro-
13 L.R.A.(N.S.) 159, and Bleecker v. 0010- coed upon the fallacious theory that the
rado & S. R. Co. 33 L.R.A.(N.S.) 386. fright is the basis of the action, whereas
The cases covered in subdivision 11., III., the real basis of the action is the material
and IV. are divisible into three classes,-— physical injury resulting from fright. the
those cases where there was no physical fright being a mere link in the chain of
impact and no physical injury resulting causation. 1n the second place, there is a
45 L.R.A.(N.S.) . 28

 434 KENTUCKY COURT OF APPEALS. JAN,
in an attempt to eject him from the train, person, but only for fright resulting from
using no more force than was necessary, if, ‘ personal injufv to the party herself.
because of his intoxication, refusal to sur- l Spade v. 1”le & B. [1. Co. 172 Mass. 488,
Wild” his idiom, a!“ abut“ 1‘0 .m‘dert'd i 43 L.R.A. 8:1‘2, 70 .‘on. St. Rep. 298, 52 N.
himself subject to ejection, and his resrst- l E 74- _ A \v. I" -~-. .7
. . ,. . i, o - in. i t”. u p. 304 , Cleveland, C.
ance thereto caused the impact With the . . S I P (, O S . . 04 I d A
person injured. t; & ~ t. f' t. o. v. tewait, - n . pp.
. 3i4,:)6 ball 9h.
(January 29, 1913,) Messrs. \\‘orthington, Cochran, &
Browning- and F. T. D. \Yallace also for
APPEAL by defendant from a judgment of appellant.
the ('ircuit (‘onrt for Floyd County in I Mr. James Goble for appellee.
plaintiff's favor in an action brought tol
recover damages for an assault and battery Settle, J., delivered the opinion of the
alleged to have been wrongfully committed l court: f‘
upon plaintiff while a passenger on defend- . In this action the appellce Elizabeth
ant’s train. Reversed. i llobinctt, in her own right and by her fath-
The facts are stated in the opinion. i er as next friend, recovered of the appellant '
Mr. Joseph D. Hal-kins. with Mr. \\‘al- Chesapeake & Ohio Railway ('ompany, in
tcr S. Hal-kins. for appellant: the court below a verdict and judgment for
There can be no recovery for fright as to $300 damages on account of an assault and
an actual or attempted injury to another . battery alleged to have been wrongfully
tangible injury to the body capable of proof cause, intervening: and here, certainly. the i
and of measurement in damages the same as l facts. in most cases at least. constitute a.
if resulting from an actual blow; and the l continuous succession of events so linked
cases which deny the right to recover for l together as to make a natural whole, and
injuries resulting from fright without incl the, fright is not something entirely inde-
pact admit that. if there is an actual physi~i pendent of the wrong or set in motion by
cal impact, no matter how slight. damages one not the original wrongdoer, which is
may be. recovered for the fright and all itsi an essential clement of intervening cause.
consequences. whereas. where there is fright i Of course. in many cases fright so great as
alone there is but a vague indefinite in-lto cause serious physical injury is not
jury to peace of mind. impossible of proof} necessarily a natural or probable conse-
and easily simulated. lquencc of the negligent act, each case de-
The doctrine of expediency has probably ‘ pending on its own particular cirmustances.
been most bitterly assailed. and at they Many of the cases which deny recovery
same time it has probably becn most in~‘upon the ground that the resulting injury
lluential with those courts which deny rev l was not the, proximate cause of the negli-
‘ covery for fright and its consequent pbys-‘Lgcncc are undoubtedly,correct, but in but
ical injury. although but few courts have‘ few instances have the courts so held With-
openly adhered to this theory. That this‘ out also stating the broad proposition that
theory is anything but fallacious seems hard ‘ no recovery can be had for injury result-
to believe: at least it seems unjust for a‘ ing from fright canscd by negligence.
court of justice to refuse recovery simply Of course. a carrier is never liable for
on the ground that to do otherwise would‘ fright of a passenger in the, absence of
establish a new cause of action and possi‘ l negligence or misconduct upon the part of
bly induce others to press claims the jns~ the carrier or its servants. which is the
tice of which might be questionable. llere ' proximate cause of the fright (see Florida
again. however. the fallacy of the theory East (‘oast R. Co. v. \Vadc. 53 Flat. 620, ‘
or exception shows. for it would be noI 43 So. 77.3; Chicago, R. l. & P. R. Co. v.
more dillicult to detect simulation of in- Felton. 125 U]. 438, 17 N. E. 765 [giving
jury resulting from fright than injury rc~ of danger signal by engineer, which was .
sulting from impact. in which case. as proper under the circumstances, so fright-
bcfore stated, recovery would be allowed. cn'cd a passenger that he left the train and
The injustice of this rule is emphasized by ran upon another track, where he was in-
the fact that recovery is allowed where iurcd]: ('levcland, C. C. & St. L. R. Co. v.
there is impact. no matter how infinitesi» Stewart. 24 Ind. App. 376, 56 N. E. 017;
mal: many of the courts seemingly grasp- Louisville & S. T. Traction Co! v. \Vorrell,
in}: at any excuse for avoiding the strict‘ 44 Ind. App. 490. 86 N. E. 78: Rearv v.
rule. il'.ouisville. N. O. & T. R. Co. 40 La. Ann.
Passing to the objection that the physj 32, 8 Am. St. Rep. 407. 3 So. 300: Bevard
ical injury in such case is not the proxi- V. Lincoln Traction Co. 74 Nch. 802, 3
mate result of the negligence. there seems L.R.A.(N.S.) 318. 105 N. \V. 635. 19 Am. .
to he no valid reason why the result of the Neg. Rep. 366: Dallas Consol. Traction R.
fright should not be, regarded as the nat- CO. V. Randolph. 8 Tex. (‘iv. App. 213. 27
nral and probable consequence of the car- 9. \V. 025. 6 Am. Neg. (his. 602: Gulf. C.
ricr’s negligence, since, generally speaking. & S. F. R. (‘0. v. \\‘allen. 05 'l‘cx. 568, 6
it is not necessary that the injury should Am. Neg. Gas. 538: Kearney v. Great
immediately follow the. wrong if it is di~ Southern & \V. ll. Co. L. ll. lr. 18 C. L.
rectly traceable to it without any other 303). And there must have been a reason-
45 L.R.A.(.\'.s.) ‘

 1913. CHESAPEAKE & O. R. CO. v. ROBINETT. 435
committed upon her, while a passenger on ‘ that the conductor refused to permit her to
, one of its trains, by the, conductor thereof ‘ do so, and before her father could be awak-
and others of the crew in charge of the ‘ cried, without provocation, violently assault-
train. Appellant complains of the judgment . ed, struck and knocked him against her
and refusal of the circuit court to grant it and across her lap, causing the father’s
a new trial, hence this appeal. head to come in contact with and break
It was, in substance, alleged in the peti- the glass in the car window and his body
tion that she and her father, with round- to knock her against the arm of the car
trip tickets in their possession, got aboard seat or window, thereby injuring her side
of the train at Catlettsburg for the purpose and causing her great pain and fright. 1t
of returing to their home at Harold. Floyd was further alleged in the petition that,
county, from which they had that morning ‘ after the conductor had thus assaulted her
gone to (i'atlettsburg; that soon after, to- father and injured her, he and other serv-
f gether, taking a seat in the car, her father ants of appellant wrongfully and forcibly
leaned his head on the back of aseatin front ejected her father from the train; that his
of them and fell asleep: that shortly therc- ejection from the train caused her two
‘ after appellant’s conductor approached them brothers, who were on the same train, to
and demanded of her father his ticket, get off that they might remain with and
whereupon she told the conductor that her care for their father, which left her in the
father was asleep and she would get from . car suffering from the injury to her side
him his ticket and deliver it to him; but i and from fright, with none of her family
able cause of alarm occasioned by the negli- l 'l'. & S. 1". R. ('0. v. McGinnis, 46 Kan. 109,
gence or misconduct of the company (scel 26 l’ac. 453; Dye v. (“hicago 8; A. R. ('o.
Selma Street & Suburban R. Co. v. 0\veu,.135 Mo. App. 254. 115 S. \V. 497; Spohn
132 Ala. 420, 31 So. 598: St. Louis & S. ' v. Missouri l’. R. (‘0. 116310. 617. 22 S. \V.
F. R. Co. V. Murray, 55 Ark. 248, 16 L.R.A. 690, 4 Am. Neg. Gas. 718; Ohliger V. Toledo
787, 29 Am. St. Rep. 32, 18 S. \V. 50; Traction Co. 23 Ohio C. C. 265; Southern
VVoolery V. Louisville, N. A. & C. R. Co. P. Co, v. Ammons, — Tex. Civ. App. —,
107 Ind. 381, 57 Am. Rep. 114, 8 N. E. 26 S. W. 13.1 (fear caused by failure to
226 [where there is no reasonable cause furnish safe means of transportation from
to apprehend danger, the negligence of the boat from which plaintiff was put oil").
company is not the proximate cause of an And the following cases adhere generally
injury resulting from fear]: Davis v. Padu- ] to the broad rule that liability cannot exist
cah R. 8; Light Co. 1l3 Ky. 267, 68 S. W. i if predicated on fright or terror unaccom-
140; Henry v. Louisville, N. 0. & T. R. Co. ‘ panied by contemporaneous physical injury;
40 La. Ann. 32. 8 Am. St. Rep. 497, 3 Elgin, A. & S. Traction (‘0. v. \Vilson. 217
S0. 390; Ephland v. Missouri P. R. (‘0. 57 Ill. 47, 75 N. E. 436, 19 Am. Neg. Rep. ‘
Mo. App. 147, 4 Am. Neg. ('as. 440; chibcr 145 (dictum) : Cleveland. C. C. & St. L.
v. People’s R. (‘0. 107 Mo. 240, 14 L.R.A. R. (‘0. V. Stewart, 24 1nd. App. 374, 56
613. 17 S. ‘V. 946. 4 Am. Neg. Cas. 664; N. E. 917: Dorrah v. lllinois (I. R. Co. 65 ~
Mcl’cak v. Missouri 1’. R. Co. 128 Mo. 617, Miss. 14, 7 Am. St. Rep. 62.0, 3 So. 36;
30 S. \V. 170. 4 Am. Neg. Gas. 806; Wade Pullman Co. v. Kelly, 86 Miss. 87, 38 So.
v. Columbia Electric Street R. Light & P. 317; Strange v. Missouri, I’. R. Co. 61 _
Co. 51 S. C. 2.06, 64 Am. St. Rep. 676. 2.0 Mo. App. 586; Deming v. Chicago. R. I. &
S. E. 233; Kearney v. Great Southern & \V. P. R. (‘0. 80 Mo. App. 152'. Ilarlcss v.
R. Ce. L. R. 1r. 18 C. L. 303). lSouthwcst Missouri Electric R. Co. 123 Mo.
In the third class of cases, no doubt has 1 App. 22. 99 S. W. 793 (dictum); Trigg V.
' been cast upon the rule that the carrier St. Louis. K. C. & N. R. Co. 74 .‘10. 147,
is liable for frightening a passenger where 4] Am. Rep. 305: Newton v. New York,
there was both physical impact and phys- N. H. & H. R. Co. 106 App. Div. 415, 94
2’ ical injury resulting from fright. if di- N. Y. Supp. 825.

. rectly caused by the carrier’s negligence So, fear of consumption has been held
and the injured passenger was not charge- not an element of damages to be allowed
able with contributory negligence. against a railroad company because of

whose neglect to heat its station a passen-
. 1 -, - . , 0 / ger is made ill with cold and fever. St.
H No 1’ MSW” 1171111301: “"d "0 ”MSW" Louis, I. M. a s. R. Co. v. Buckner, 89
‘ Ark. 58. 20 L.R.A.(N.S.) 458, 115 S. W.
Mere fright not accompanied by a phys- 923. (The general question of apprehen-
ical impact and unattended by any physical sion of injury to health as basis of recovery
injury, and fright not of such char- for mental anguish is treated in the note
acter as itself to produce physical impair- appended to the L.R.A. report of this case.)
ment directly and naturally resulting from
a. wrongful act, furnish no ground for the 111. No physical impact but physical in-
recovery of compensatory damages. \Vil- jury resulting from fright.
liamson v. Central of Georgia R. Co. 127 . . . ‘ . . . .
Ga. 125, 56 s. 14. 119; Torre llauic 1cm. "" “WWWIfjgé‘l”;"";.ri't"iz;”"y as "m"
tric R. (‘0. v. Lauer, 21 Ind. App. 466. 52 ' (L ' o J "
N. E. 703, 5 Am. Neg. Rep. 581; .Xtchison. The following cases adhere to the rule
45 L.R.A.(N.S.l

 436 KENTUCKY COURT OF APPEALS. JAN.,
present to minister to her nccds during the the answer that the ejection of appellec’s fa-
remaining 50 milcs of her journey. ther was rendered necessary by his refusal .
The appellant's answer traversed the aver- to surrender his ticket or pay his fare, and
ments of the petition as to the injuries sus— by his abuse of and assault upon the con.
taincd by the appellec, but admitted the as- ductor and assistants, and that his removal
sault and battcry upon the father, alleging from the train was accomplished without
justification, howcwr. on the grounds that unncccssary force or violence. Appellant
he refused to give up his ticket when I‘C- j complains that the court erred in refusing
qucstcd by the conductor to do so; and that, to give the peremptory instruction asked by
upon being told by the conductor he must I it at the conclusion of appcllec’s cvidencc,
surrender the ticket o1~ pay his fare, he and again after all the evidence was in-
(3111'ng and kicked the conductor and one of troduccd.
his assistants, whereupon the former, in his This complaint is based upon the theory,
ncccssal'y sclf»dcfcnse and in dcfcnse of his not that there was no evidence in appellce’s {
assistants, struck and shoved him over on behalf which conduced to prove the facts
the scat, but not upon or against appcllQC, relied on as showing a right of recovery, but
and latcr, with the aid of his assistants, put bccausc the facts themselves did not entitle '
him off the, train. It was further allcgcd in her to recover. In other words, it is argued
that since thcrc can be no right of action mere conjccturc or speculation. The diffi-
for more fright it must logically followlculty which often exists in cases of al-
that thcrc can be no I'ccovcry for injuries ‘ lcgcd physical injury, in detcl‘mining
which rcsultcd from or arc tho conscqucncc Whether they exist, and if so whcthcr they
of fright: St. Louis, I. M. & S. R. Co. V. were caused by the negligcnt act of the
Bragg. 6!) Ark. 402, 86 Am, St. ch. 206, defendant, would not only be greatly in-
64 S. W. 226 (pusscngcr sct down at wrong creased, but a. wide field would be Opcncd
place) Strangc v. Missouri P. R. Co. 61 for fictitious or speculative claims. To so
No. App. 586 (fourteen-year old fcmnlc tablish such a doctrine would be contrary to
sct down 1 milc beyond destination) : Trigg principles of public policy” (But Rumscy,
v. St. Louis, K. C. & N. R. (‘0. 74 No. J., in writing the opinion of the lowcr court
147. 41 Am. Rep. 305 (passenger carried [4 Misc. 575, 25 N. Y. Supp. 744] well said:
beyond her station), “The argument ab incmlrvnicnti is ncvcr of
much force, and least of all when it is in-
b. Doctrine of crpcdicncu. vokcd to enable onc to avoid a necessary
‘ lcgal conclusion”) ; Rcurdon v. Philadclphia
Another class of cascs denies recovery Rapid Transit Co. 43 Pa. Super. Ct. 344,
for injuries resulting from fright on the wllcrcin no recovery was allowed for nor—
ground of c\'pcdicn(w', thc rcasoning being vousness and headaches resulting from
that to allow rccovcry in such cases would fright caused by the defendant’s ncgligcnce.
open the door to a flood of spcculativc liti- But the “expediency” doctrine has been
gation which could not be successfully mct. expressly rejected in some jurisdictions.
The following cases cxprcssly so bold: Thus, in Simone v. Rhodc Island Co. 28
Spade v. Lynn & l3. R. Co. 168 Mass. 235. R. I. 186, 9 L.R.A.(N.S.) 740, 66 Atl. 202.
38 l1.R.A. 5l2, 60 Am. St. Rep. 393, 47 in holding that damagcs may be rccovcrcd
N. E. 88, 2 Am. Ncg. Rep. 566, wherein, for bodily injury causcd by fright, although
in holding that no rccovcrv for fright. fhcrc was no physical injury at the time
terror, alarm, anxiety. or distress of mind, of the accident, if the fright is followed by
even if these resulted in physical injury, a series of physical ills as its natural _
can be had in an action for negligence consequence, the fright giving rise to ncrv- ,
where there are no physical injuries ex- 0115 disturbances, and those in turn to ‘»
ccpt those caused solely by the montal dis- physical troubles, the court, referring to
turbancc, it was said that the real reason Spade V. Lynn 8L D. R. Co. and Mitchell
for refusing damages for such injurics prob- V. Rocllestcr R. Co. supra, and other lead- '
ably rests on the ground that in practice ing cases which adhere to the “expediency”
it is impossible satisfactorily to administer rule, said: “We are not able to follow the
any other rule: that the logical vindica- Yule laid down in the above quoted cases.
tion of the rule is the fact that it is un- lt is always a question, frequently of much
reasonable to hold persons who are mcrcly difficulty, to be decided in the particular
negligent, bound to anticipate and guard case, whether the injury for which damages
against fright and the consequences of are sought is the proximate result of the
fright, and that this would open a wide act or acts complaincd of. But when it
door for unjust claims which could not is admitted, as it is in Spade v. Lynn &
successfully be met; Mitchell v. Rochester R. R. (‘0. supra, that in a large class of
R. Co. 151 N. Y. 107. 34 L.R.A. 781. 56 cases there may be injuries of the most
Am. St. Rep. 604, 45 N. E. 354. 1 Am. Neg. serious character directly resulting from
Rep. 12], wherein the court said: “It the ncgligcnce of the defendant, as a proxi—
would naturally result in :1 flood of litign- mate cause, for which the law will afford
tion in cases whore the injury complained no rcmcdy because of some probable diffi-
. of may be easily fcigncd without detection. I cultv or occasional injustice in the adminis-
and where the damages must rest upon tration of a more liberal rule, it appears
~15 l..lt.A.(_.\'.S.)

 1913. CHESAPEAKE & O. R. CO. v. ROBINETT. 437
that the assault and battery complained of, both McGee and Evans. On an appeal taken
even if not justifiable as claimed by appel- by the latter, we reversed the judgment as
lee, was committed upon her father, and not to McGee and affirmed it as to Evans. This
upon her, and that for fright or injury, was because it was neither alleged in the
which she may have sustained from the as- petition nor shown by the proof that the as-
sault and battery committed upon the fath- sault and battery committed by McGee upon
er, or any consequence thereof, appellant her husband, though in her presence, was
cannot be held liable. This contention accompanied by any physical impact with
rests upon a misapprehension of the law. or physical injury to her, and that for pain
This question was directly decided in Mc— and suffering resulting to her solely from
Gee v. Vanover, 148 Ky. 737, 147 S. W. 742. fright, superindueed by the assault and bat-
In that case the plaintiff, Nancy Vanover, tery committed upon her husband by Me.-
sued to recover of the defendants, McGee Gee, the damages were too remote and spoon»
and Evans, damages for an assault and bat- lativc to authorize a recovery as to him.
’ tery committed by them upon her husband But the recovery was allowed to stand as
in her presence, and in committing which to Evans, because it was alleged in the pe-
\ Evans struck or pushed and injured her. i tition and shown by the evidence that he,
She obtained a verdict and judgment against in committing an unjustifiable assault and
_________._.__.—-——~—_.___si ,,,. -_~,i a.
to us that the conclusion is quite illogical it seems to us, rests upon an imaginary
and is a pitiful confession of incompetence ground. It is truc that in most cases it
on the part of courts of justice.” may be difficult to determine the extent
And the “expediency” theory was ex- of a mental shock and its result upon the
pressly rejected in Stewart v. Arkansas physical system. But, in our opinion, this
Southern R. Co. 112 La. 764, 36 So. 676, is not a sufficient reason for refusing a
wherein it was said: “It would perhaps be remedy for damages resulting from a wrong.
convenient and expeditious. in determining The same difficulty exists in many other
suits such as this, to adopt the simple cases in which that objection has never
rule that no recovery of any kind can he been urged as a reason why a recovery
had for fright occasioned by the negligence should be denied.”
of another, be the fright what it may, al-
though its consequences are most serious,.—- 0. Thelwy of proximate cause.
such as blindness, insanity, and even mis-
carriage. . . . Under our jurisprudence The theory upon which the cases hold-
and special laws, we would not be justifiedi ing that damages cannot be recovered for
if we were to adopt this simple rule. In i the consequences of fright because such re—
our Code (articles 231572317) the wise pre-t suiting injuries are not the proximate re-
cept of the lnstitutes of Justinian are in- Sult 0f the negligence which caused the
corporated in substance, to wit: Jan's prm fright are based is that the damages are
cepta sunt, alterum non Imdere, suum too remote, and that the fright is an in-
cuique tribuere, and, as translated and in- tervening cause. This theory seems absurd,
serted in our Code, its text looks to the as before stated, especially where the negli-
liability for all damages.” gcnce is perfectly evident and the resulting
And in Gulf, C. St S. F. R. Co. v. Haytcr,j injuries serious for, to so hold it is neces~
93 Tex. 239, 47 L.R.A. 3'25, 77 Am. St. Rep. sary to say either that the fright, and not
856, 54 S. W. 944, 7 Am. Neg. Rep. 35!). the wrongful act of the carrier. was the
the court referring to the cases which deny cause- of such injury, or that the carrier
recovery where there is no contemporaneous guilty of seriously frightening a. passenger
injury, but where there is injury resulting could not reasonably foresee that a serious
i from fright, said: “By some. it is held thata. injury would. result. Of course not every
physical injury is not a natural and prob. injury resulting from fright is the proxi-
able consequence of a mental emotion, how- mate result of the negligence Which caused
u ever potent, and that the injury in such the frighti as, for example, where the
case is one not reasonably to be anticipated. negligence is so slight that no one could
Others content themselves by saying, in say that any one should be SO seriously
effect, that a contrary ruling would result frightened by it as to suffer serious injury.
in a multiplication of damage suits and For this reason, each case depends almost
in intolerable and vcxatious litigation. The entirely upon its own facts and the reader
uncertainty and obscurity attending the should bear this in mind.
facts, and the consequent difliculty of ad- Cases which bear upon the question of
ministering the law, are also urged as an proximate cause follow:
objection to allowing damages for such Thus, in Mitchell v. Rochester R. Co. 151
injuries. To our minds neither proposition N. Y. 107. 34 LRA. 781. 56 Am. St. Rep.
affords a sufficient reason for denying a 604, 45 N. E. 354, 1 Am. Neg. Rep. 121,
recovery in these cases. . . . The re- whereawoman while standing uponacross-
ported cases would indicate that the liti- walk, awaiting an opportunity to board one
gations arising from injuries inflicted of the defendant’s street cars, was almost
through a mental shock are not so numcr- run dOWn as she was about to step upon the
ous as to cause any considerable increase car, by another car. through the negligence
of litigation. So that this objection, as, of its driver, which so frightened her that
'45 L.R.A.(N.S.)

 438 KENTUCKY COURT OF APPEALS. JAR,
battery upon the husband, struck or pushcd him was that the fright occasioncd by his
the wife out of his way, which constituted assault and battery upon licr husband su-
an assault and battery upon her, as it fur~ pcrimluccd tllc pain and suffcring she sus-
nislicd tlie ncccssary physical impact which. taincd, togctlicr with the subscqucnt mis-
if it, in whole or in part, causcd licr tllc carriage. In vicw of the rule announced
fright and other injuries complaiucd of, 011- by the authoritics, supra, she should not
titled her to have the case go to the jury lxavc bccn allowcd to recover as against the
as to him. appellant Mchc. 'l‘lic attitude of the ap-
Explanation of tlic forcgoing ruling will pcllant Evans with respect to the injuries
be found in tlic following cxccl'pt from the sustaincd by tho appellcc, Nancy Vanover,
opinion: “It is not allcgcd in the pctition is wholly difl‘crcnt, as it was charged in the
or shown by the cvidcncc that the appcllant petition, and shown by the cvidcncc, that
McGee struck, assaulted, or otherwisc camc be struck or pushed her in assaulting her
in contact with the appcllcc, Nancy Van- i husband. . . . He denied, however, that
over, during his fight with licr husband, this was intcntional. In our ricw 0f the "
nor is it allcgcd or provcd that she apprc— casc. the striking or pushing of the wife by
liendcd any danger or injury to llcr pcr- Evans, wlictlicr intentional or otherwise,
son from him; but her solo complaint as to that he might got to and make an attack “
she faintcd and a miscarriage followed, llic rcason to anticipate that the result of an
court dcclarcd that it could not pr01)(‘1‘lyiaccidcnt on its road would so opcrate on
be said that the miscarriage was the proxi— llailc's [plaintiff’s] mind as to produce dis-
matc rcsult of tlic drivcr’s ncgligcncc: case,— tlic discasc of insanity.— any more
that proximate damagcs are such as the than that the cxposurc and hardships lie
ordinary and natural rcsults of tho ncg- l suffered would produce grippe. pneumonia,
ligencc cbargcd, and tliosc tliul arc usual l or any otlicr discasc. Ho sustaincd no bod-
and may tlicrcforc bc cxpcctcd: that it was j ily injury by the accident, so far as the
quite obvious that the plaintill‘s injuries . pctition shows; but it caused a shock and
did not fall within tlic rulc as to proximatc i an excitcmcnt, which, undcr his pcculiar
damages, but \vcre plainly tlic l'csult of an j mcntal and physical condition at tho timc,
incidcntal or unusual combination of cir-ircsultcd in his insanity. The dcfcndant
cumstanccs. which could not lmrc bccn rcar ' dwcd liim thc duty to carry him safely,—
sonably anticipatcd, and orcr wliicli tlic dc- i not to injure his person by forcc or rio-
fendant had no control; and. licncc. licr lcncc. It owcd him no duty to protcct liirn
damagcs were too remote to justify a re- from fright, cxcitomcnt, or from any hard-
covcry. ship that he might subscqucntly sull‘cr be-
And in Morris v. Lackawanna & W. Val- cause of the unfortunate accidcnt.”
lcy R. Co. 228 Pu. 108. 77 Atl. 445. the So, it was bold in West Chicago Street
court laid down the rulc that tbcrc can be R. ('0. v. Licbig, 79 Ill. App. 567, that
no recorcry for injury rcsulting from fright wlicrc a. passcngcr on a street car was
unconncctcd with contcmporancous physi- grcatly fr