65

judges who have so held, I feel a difficulty in following this reasoning. No doubt damage is an essential element in a right of action for negligence. I cannot successfully sue him who has failed in his duty of using reasonable skill and care towards me unless I can prove some material and measurable damage. If his negligence has caused me neither injury to property nor physical mischief, but only an unpleasant emotion of more or less transient duration, an essential constituent of a right of action for negligence is lacking. 'Fear,' as Sir Frederick Pollock has stated, 'taken alone falls short of being actual damage, not because it is a remote or unlikely consequence, but because it can be proved and measured only by physical effects.' It may, I conceive, be truly said that, viewed in relation to an action for negligence, direct bodily impact is, without resulting damage, as insufficient a ground of legal claim as the infliction of fright. That fright-where physical injury is directly produced by it-cannot be a ground of action merely because of the absence of any accompanying impact appears to me to be a contention both unreasonable and contrary to the weight of authority."

(2) Grounds for denying recovery. (a) Because fright alone is not an independent basis for an action. In the leading case laying down this reason for denying recovery the court says: "Assuming that fright cannot form the basis of an action, it is obvious that no recovery can be had for injuries resulting therefrom. That the result may be nervous disease,

65 The Law of Torts (6th ed.), p. 511.

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blindness, insanity, or even a miscarriage, in no way changes the principle. These results merely show the degree of fright, or the extent of the damages. The right of action must still depend upon the question whether a recovery may be had for fright.' This argument is answered in the quotation from Justice Kennedy's opinion given in the preceding paragraph, as well as in many other cases;67 but it is constantly used, in a considerable number of jurisdictions, as one of the grounds, though seldom as the only ground, for denying the right to

recover.

(b) Because the damage is too remote. Another reason frequently given for denying the right to recover is that physical injuries cannot be regarded as the proximate result of the negligence causing the fright, and, hence, that the damages are too remote. In the leading case advancing this rule,68 a woman, while driving, was permitted, by the negligence of a gatekeeper at a railway crossing, to drive upon the track in front of an approaching train, and barely escaped being struck by it. She suffered severe fright or nervous shock, from which resulted an illness and an impairment of memory and of eyesight. In this case, and in a similar one in New Jersey, it was held that there could be no recovery. The theory on which these cases, and many others of

69

66 Mitchell v. Rochester R. Co., 151 N. Y. 107, 45 N. E. 354, LEADING ILLUSTRATIVE CASES.

67 Green v. Shoemaker & Co., 111 Md. 69, 73 Atl. 688, LEADING ILLUSTRATIVE CASES.

68 Victorian Railway Commissioners v. Coultas, 13 App. Cas. 222 (Eng.). 69 Ward v. West Jersey & S. R. Co., 65 N. J. L. 383, 47 Atl. 561.

wide variety of circumstance, are decided is, as expressed in the New Jersey case just cited, that "a person is legally responsible only for the natural and proximate consequences of fright in the case of a person of ordinary physical and mental vigor; and that in the general conduct of business and the ordinary affairs of life, although we are bound to anticipate and guard against consequences which may be injurious to the persons who are liable to be affected thereby, we have a right, in doing so, to assume, in the absence of knowledge to the contrary, that such persons are of average strength, both of body and of mind."

The case just cited of Victorian Railway Commissioners v. Coultas was repudiated in the later case of Dulieu v. White. And the reasoning on which the decision in the Coultas case was based is thus answered by an American text-writer: "Recalling that proximate cause is probable cause, and that the proximate consequence of a given act or omission, as distinguished from a remote consequence, is one which succeeds naturally in the ordinary course of things, and which therefore ought to have been anticipated by the wrongdoer, we must be prepared to conclude in favor of these courts which hold that injuries of this kind [miscarriages resulting from fright] are actionable. Not only will every competent physician or surgeon that can be summoned, testify that a severe fright or nervous shock has a tendency to produce a miscarriage in a pregnant woman, but it is a matter so well known that it may 70 Dulieu v. White & Sons, (1901) 2 K. B. 669 (Eng.).

21

be rested upon common observation; and n R. Co.,7" ought to take judicial notice of such a fa Coultas," (c) For reasons of expediency or punt of one's This ground for denying recovery is se ccord with follows in a leading Massachusetts case: eh judicial seem, therefore, that the real reason for referred. damages sustained from mere fright mustink justly thing different [than remoteness]; and itt, a claim rests on the ground that in practice it is imlly and satisfactorily to administer any other rule. The law must be administered in the courts according to general rules. Courts will aim to make these rules as just as possible, bearing in mind that they are to be of general application. But as the law is a practical science, having to do with the affairs of life, any rule is unwise if in its general application it will not as a usual result serve the purposes of justice. A ne, rule cannot be made for each case, and there musstherefore be a certain generality in rules of laval which in particular cases may fail to meet whas. would be desirable if the single case were alone t a

be considered.” 72

ing

A later Massachusetts case reiterates the view t'ous expediency is the only valid ground on which evicovery in such cases can be denied, and declares tha the rule denying recovery must be confined wit as the narrowest limits. The court says: "As has bight explained repeatedly, it is an arbitrary excepti based upon a notion of what is practicable, that

71 Thompson on Negligence (2d ed.), § 156. See also Green v. Shoemar

& Co., 111 Md. 69, 73 Atl. 688, LEADING ILLUSTRATIVE CASES.

72 Spade v. Lynn & B. R. Co., 168 Mass. 285, 47 N. E. 88.

1978

wide varietcovery for visible illness resulting from Recognizing as we

pressed in hock alone.

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*

person is logic in favor of the plaintiff when a remedy proximate because the only immediate wrong was a person of the nerves, we think that when the reality that in thase is guaranteed by proof of a substantial nary affaif the person there is no longer occasion to pate and ther the exception to general rules."73 injurion's which grant recovery for illness resulting from'fright, of course, deny the validity of refusing recovery on grounds of mere expediency. In a Maryland case, in refutation of the argument based on expediency or policy, the court says: "The argument from mere expediency cannot commend itself to a court of justice resulting in the denial of a logical legal t and remedy in all cases because in some a fictiinjury may be urged as a real one. The apparrength of the theory of expediency lies in the hat nervous disturbances and injuries are mes more imaginary than real, and are someeigned; but this reasoning loses sight of the obvious fact that a nervous injury arising thiha actual impact is as likely to be imagined as antre-sulting from fright without physical impact, to hat at the former is as capable of simulation as injhintter.

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9974

frieenther refutation of the argument from expediteron, made in a leading English case, where, after egenting on the cases of Mitchell v. Rochester

73 Homans v. Boston El. R. Co., 180 Mass. 456, 62 N. E. 737.

74 Green v. Shoemaker & Co., 111 Md. 69, 73 Atl. 688, LEADING ILLUSTRAVE CASES.