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BOSLEY v. ANDREWS
393 Pa. 161 (1958)
Supreme Court of Pennsylvania.
Argued March 19, 1958.
In the case of Potere v. Philadelphia,380 Pa. 581, 589, the plaintiff was driving a truck in Philadelphia when the street caved in beneath him, over an open tunnel. The cab of his truck suspended momentarily at the edge of the abyss, allowing him to escape to safety before the truck fell. His physical injuries were slight but the terror he experienced as he teetered between escape and a possible fatal drop into the tunnel brought on an anxiety neurosis, for which he claimed and received damages at the hands of the jury. The defendant City of Philadelphia complained that the plaintiff was not entitled to recovery for the anxiety neurosis. This Court affirmed the verdict and, speaking through Justice CHIDSEY, said: "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 . . . 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."4 If, in the Potere case, the jury could trace the connection between the plaintiff's neurosis and his fear of falling in the tunnel, why may it not trace the connection between Mrs. Bosley's heart disablement and the fear which overwhelmed her when she expected that any moment she might be gored by the defendant's bull? What is the difference, in point of liability, on the part of a railroad company, between a case where a passenger's arm is cut in a train wreck, and a case where a passenger suffers a broken heart valve as a result of the fear he experienced in expecting death as a car passed over him? Is the negligence and responsibility of the tortfeasor any less marked toward the living man than to the dead man's family when, after the throb of the overturned locomotive has ceased and the hissing of the punctured air brakes has faded away, there lie on the ground, next to one another, the body of
a stark dead passenger and the body of a living passenger, unconscious, but unblemished by a single scratch? To determine liability by what follows rather than by what precedes and accompanies a catastrophe is like concluding that no earthquake has occurred because no one was killed even though the earth gaped and the houses danced as if doing a grisly quadrille. The crux of this Court's position is that in cases where the plaintiff suffered no physical laceration, bruise, or abrasion, it is difficult to discover false claims. But is it not equally as difficult to uncover false claims where the mental or nervous disturbance is not physiologically connected with the bruise or laceration? In the Potere case, the plaintiff's sprained ankle and bruised elbow had nothing to do with his anxiety neurosis. As the jury had to determine whether the disablement in Potere's nervous system was caused by his fear of falling, could it not in this case have decided whether Mrs. Bosley's heart disablement was precipitated by her fear of being gored to death? Injury to the heart is a physical injury and not merely a mental or emotional vagary. The heart has been so excessively the subject of poetic rhapsodizing that it would seem we may have lost sight of the fact that it is objectively a physical organ with mechanical functions as rigidly followed as the metallic movements of the village pump. Mrs. Bosley's ailment is not to be equated with intangible grieving or sentimental lamenting. Her heart condition is as much a matter of muscle and tissue as traumatic neuritis. However, while Mrs. Bosley's condition is tangible and palpable, it was caused by a force which did not touch her except through operation of the mind. But that does not mean that the application of the distant force was any less realistic. When a person whitens with fear, blushes with shame, shivers from apprehension,
or petrifies with horror, there is no immediate bodily contact with the force which produces those definite physical reactions. But can we say that there is no actual bond between the emotion-creating phenomenon and the organism of the person who responds to the phenomenon? To answer that question in the negative would be to deny the most elementary certainties of human experience. What provokes laughter? Is laughing not the result of a mental appraisement? But laughter itself is not mental. Abdominal, facial, and labial muscles, vocal cords, larynx and pharynx must all operate and coordinate in order to produce a hearty guffaw. What are tears? Except when they are concomitant with torture or whipping, they are the result purely of intangible thought. One thinks of a lost relative, a departed friend, a tragic event, and a saline solution forms in the eyes. A great deal of physical machinery goes into action to manufacture those drops of water, and it would be sheer perversity to say that there is no connection between the item of grief and the distillation of the resulting tears. Can laughter and weeping ever be physically injurious? It is no figure of speech that people have actually laughed themselves to death. It is no rhetorical exaggeration to say that people have died of weeping and grief.5 There is, therefore, an objective linking —
of cause and effect — between outer phenomenon and physical reaction. Thus, if one can die with laughing, perish with weeping and freeze from fear, how can it be said that there is no tie of contact between the terror of immediate death caused by the charging of a ferocious beast and a heart ailment which contemporaneously occurs and thereafter unceasingly continues?
* Italics throughout, ours. * Mrs. Bosley had also been suffering from bronchial asthma. * The additional words "a physical impact" appear only in Potere v. Philadelphia, 380 Pa., supra, and Gefter v. Rosenthal, 384 Pa., supra. * For example Howarth v. Adams Express Co., 269 Pa. 280, 112 A. 536 (where there was an actual physical injury to her back); Potere v. Philadelphia,380 Pa. 581, supra, (bodily injuries plus severe shock to the nervous system). * Which was caused by the negligence of the defendant. 1. Italics throughout, mine. 2. Virgilio v. Walker and Brehm, 254 Pa. 244. 3. In a well written article, appearing in the Temple Law Quarterly, Vol. 31, 1958, the author, Charles Potash, states that thirty-three jurisdictions in the United States allow recovery. 4. I would think that the Potere case overruled Chittick v. Phila. Rapid Trans. Co., 224 Pa. 13, but I note that the Majority still cites it as authority. In the Chittick case the plaintiff, who was sitting at a window 200 to 300 feet away from an electric explosion, was thrown to the floor, sustaining bruises to her person. She also was blinded temporarily, suffered pain in her eyes, followed by some impairment of vision and nervous weakness. The jury returned a verdict in her favor but this Court overruled, ignoring the fact that the plaintiff had actually received physical injuries apart from nervous shock and weakness. 5. King Richard II, Act. III, Scene iii:
"Aumerle, thou weep'st, my tender-hearted cousin!
We'll make foul weather with despised tears;
Our sighs and they shall lodge the summer corn,
And make a dearth in this revolting land.
Or shall we play the wanton with our woes,
And make some pretty match with shedding tears?
As thus, to drop them still upon one place,
Till they have fretted us a pair of graves
Within the earth; and, therein laid — these lies
Two kinsmen digg'd their graves with weeping eyes."
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