MURPHY, C.J., delivered the opinion of the Court.
We granted certiorari in this case to consider two principal issues: (1) whether, under the "physical injury" test set forth in Bowman v. Williams, 164 Md. 397, 165 A. 182 (1933), damages were properly recovered by the plaintiff for emotional distress resulting from the defendant's negligent misrepresentation and (2) whether under the principles of Harris v. Jones, 281 Md. 560, 380 A.2d 611 (1977), the plaintiff presented legally sufficient evidence to the jury to establish all elements of the independent tort of intentional infliction of emotional distress.
The relevant facts are these: Arnold Vance (Dr. Vance) and Muriel Vance (Muriel) participated in a religious marriage ceremony in Arlington, Virginia on September 29, 1956. They lived together as husband and wife for eighteen years and had two children. On February 1, 1974, Dr. Vance left Muriel for another woman, prompting Muriel to seek and obtain a decree in the Circuit Court for Howard County awarding her alimony and child support. Dr. Vance filed a timely motion to strike the decree and annul the marriage on the ground that the marriage was void because he was not divorced from his first wife at the time he purported to marry Muriel.
As a result of this disclosure, Muriel sued Dr. Vance for compensatory damages for emotional distress which she claimed to have suffered as a consequence of Dr. Vance's
At the trial, evidence was adduced showing that Dr. Vance separated from his first wife in July of 1954 and subsequently initiated suit for an absolute divorce. Erroneously believing that he had obtained his final divorce decree on September 12, 1956, Dr. Vance told Muriel later that month that he was free to marry her. Approximately one month after his September 29, 1956 marriage to Muriel, Dr. Vance discovered that his divorce decree had not become final until October 16, 1956. There was evidence that Dr. Vance never told Muriel that their marriage was a nullity, and that Muriel did not discover that fact until Dr. Vance sought to annul the marriage twenty years later.
Muriel's mother testified that her daughter was in a state of emotional collapse after Dr. Vance filed the motion to annul the marriage. Testifying on her own behalf, Muriel said that upon learning that her marriage was void, she believed that her two children had been illegitimatized
No medical evidence was adduced to substantiate Muriel's claim of emotional distress, nor was any evidence produced that she took any medication for her condition.
At the close of the evidence, the trial judge (Macgill, J.) directed a verdict for Dr. Vance on the count of the declaration charging intentional infliction of emotional distress. The jury returned a verdict in Muriel's favor for $50,000 on the negligent misrepresentation count, but the trial court thereafter entered a judgment N.O.V. for Dr. Vance on this count. Muriel appealed both rulings and as to each the Court of Special Appeals reversed. Vance v. Vance, 41 Md.App. 130, 396 A.2d 296 (1979).
Writing for the Court of Special Appeals, Chief Judge Gilbert concluded that there was evidence before the jury that Muriel "suffered from emotional distress as a result of learning that her `marriage' of almost 20 years was no marriage at all." He said that under Maryland law, as set forth in Bowman v. Williams, 164 Md. 397, 165 A. 182 (1933), a right of recovery exists for emotional distress "if it results in physical injury"; and that the evidence, considered in a light most favorable to Muriel, was sufficient to support a jury finding that she was "physically injured." The Court of Special Appeals, quoting from Bowman (164 Md. at 404), observed that the mental distress must result in "`some clearly apparent and substantial physical injury, as manifested by an external condition or by symptoms clearly indicative of a resultant pathological, physiological, or mental
In concluding that the trial court also erred in directing a verdict for Dr. Vance on the count of the declaration charging intentional infliction of emotional distress, the Court of Special Appeals held that there was legally sufficient evidence before the jury, if believed, to establish all elements of the tort under Harris v. Jones, 281 Md. 560, 380 A.2d 611 (1977).
Dr. Vance contends that the Court of Special Appeals was wrong in holding that Muriel's emotional distress, resulting from the alleged negligent misrepresentation of his marital status, constituted a "physical injury" within the contemplation of the Bowman rule. He argues that claims based solely on emotional distress are not compensable and that "external" evidence of emotional distress cannot be equated with the physical injury requirement of the Bowman case. Rather, he argues, there must be a link between the external condition and a physical injury which, to satisfy the dictates of Bowman, must be "clearly apparent and substantial." The physical injury must be shown, he contends, by objective indicia of emotional distress evidenced by physical deterioration in the nature of bodily injury. Dr. Vance suggests that Muriel's nervousness, spontaneous crying, hollowed appearance and inability to relate to the present are but physical manifestations of an allegedly distressed mental
As the trial judge so carefully instructed the jury, a cause of action for negligent misrepresentation exists where one relies on the statements of another who negligently volunteers an erroneous opinion, intending that it be acted upon; the defendant must either know or should know that loss or injury likely will result if the erroneous representation is acted upon. Piper v. Jenkins, 207 Md. 308, 313, 113 A.2d 919 (1955); Holt v. Kolker, 189 Md. 636, 639, 57 A.2d 287 (1948); Virginia Dare Stores v. Schuman, 175 Md. 287, 1 A.2d 897 (1938). That Muriel suffered emotional distress as the ultimate, foreseeable result of Dr. Vance's negligent misrepresentation of his marital status in 1956 was established to the jury's satisfaction. Whether Muriel can recover damages for her mental distress depends upon a proper interpretation of the Bowman "physical injury" standard, thus necessitating a brief examination of the historical and evoluntionary context within which the rule developed.
Under the traditional rule, formulated in the nineteenth century, courts did not recognize a duty to refrain from the negligent infliction of emotional distress and therefore recovery of damages solely for mental distress was not permitted. See Green v. Shoemaker, 111 Md. 69, 73 A. 688 (1909); Spade v. Lynn & Boston R.R., 168 Mass. 285, 47 N.E. 88 (1897); Lynch v. Knight, 11 Eng. Rep. 854, 9 H.L. Cas. 577 (1861); Annot., 64 A.L.R.2d 100-149 (1959). Instead, damages for mental distress had a parasitic status; recovery was dependent upon an immediate physical injury accompanying an independently actionable tort. See, e.g., Balto. Traction Co. v. Wallace, 77 Md. 435, 26 A. 518 (1893); McMahon v. N.C.R.R. Co., 39 Md. 438 (1874); W. Prosser, Law of Torts, § 54, at 330 (4th ed. 1971). The early cases generally denied recovery for mental distress when the alleged physical injury resulted solely from the internal operation of mental or emotional stresses, although an exception to this rule was sometimes made where there was physical impact upon the plaintiff coincident in time and place with the occasion producing the
In Green, the plaintiff sought damages for mental distress caused by the defendant's negligently conducted blasting operation. The evidence showed that for nearly eight months the plaintiff was subjected to the effects of blasting, which shook her house and caused large rocks to strike the walls and roof of her dwelling. As a result, the plaintiff was constantly in fear of her life, her nerves were "completely broken down," rendering her a "nervous wreck," and she was wholly unable to work. The plaintiff's family physician attributed her "nervous prostration" to the shock of the blasting operations.
In deciding whether a cause of action could be brought for fright and nervousness caused by the defendant's negligence, the Court in Green took cognizance of the rule in other jurisdictions that mental distress by itself cannot form the basis of an independent cause of action, and that absent physical impact, recovery cannot be obtained for mental distress. Reasons for the traditional approach were noted by the Court to include concerns that mental distress may be
In Tea Company v. Roch, 160 Md. 189, 153 A. 22 (1931), the Court again considered whether damages could properly be awarded for emotional distress caused by the defendant's negligence. There, the manager of a store sent to a customer a package containing a dead rat instead of a loaf of bread, as intended. The sight of the dead rat so shocked and frightened the plaintiff that she fainted. She subsequently claimed to have become a "nervous wreck," suffering excruciating mental anguish. The Court stated that
Bowman v. Williams, 164 Md. 397, 165 A. 182 (1933), the leading Maryland case on the recovery of damages for negligently inflicted emotional distress, involved a plaintiff who was frightened for his own safety and for that of his two sons when the defendant's negligently operated truck crashed into his house. Prior to the impact, the plaintiff observed the truck, out of control, coming toward his house. He knew that his sons were in the basement. After the truck crashed through the foundation of the house, the shock to the plaintiff's nervous system caused him to fall to the floor in a weak and hysterical condition. He remained in bed for two weeks under medical treatment, weak and nervous. He was unable to work for six months. In affirming a jury award of damages for mental distress, the Court noted the presence of medical and other evidence showing that the plaintiff had suffered a nervous disorder as a result of the accident which was not susceptible of simulation or attributable to any other physical reason. The Court observed that the shock to the plaintiff's nervous system "reflected in instinctive excitement and intensive action of the muscles and organs of the body, and so it is clear that the mental state has a corresponding physical accompaniment, although there has been no impact suffered." Id. at 401. The Court continued: "[T]he nervous shock or fright sustained by the plaintiff was based on reasonable grounds for apprehension of an injury to the plaintiff and his children, and was one which naturally produced physical deterioration as distinguished from those shocks which primarily work on the moral nature, to the exclusion of actual physical injury." Id. at 402. The Court reaffirmed the view earlier expressed in Green v. Shoemaker, supra, that actions for injuries resulting from fear, fright or other emotional reactions were not to be proscribed simply because of the possibility of feigned or speculative claims. These difficulties, it said, "are common, are surmountable, and so should not prevent the operation of the general and fundamental theory of the common law that there is a remedy
The "physical injury" test set forth in Bowman was reaffirmed and applied, without elaboration, in Mahnke v. Moore, 197 Md. 61, 77 A.2d 923 (1951) and H & R Block v. Testerman, 275 Md. 36, 338 A.2d 48 (1975).
We think it clear that Bowman provides that the requisite "physical injury" resulting from emotional distress may be proved in one of four ways. It appears that these alternatives were formulated with the overall purpose in mind of requiring objective evidence to guard against feigned claims. The first three categories pertain to manifestations of a physical injury through evidence of an external condition or by symptoms of a pathological or physiological state. Proof of a "physical injury" is also permitted by evidence indicative of a "mental state," a conclusion consistent with the holdings in the Green, Bowman and Roch cases. In the context of the Bowman rule, therefore, the term "physical" is not used in its ordinary dictionary sense.
The evidence at trial was legally sufficient to establish symptoms of a mental state evidencing a physical injury within the meaning of the Bowman standard. The disclosure that her twenty-year marriage was void was shown to have had a devastating effect on Muriel. She went into a state of shock, engaged in spontaneous crying and for a period seemed detached and unaware of her own presence. She was unable to function normally, unable to sleep and too embarrassed to socialize. In addition to experiencing symptoms of an ulcer, Muriel suffered an emotional collapse and depression which manifested itself in her external condition, i.e., her significantly deteriorated physical appearance — unkempt hair, sunken cheeks and dark eyes. The evidence showed that Muriel suffered an objectively manifested, definite nervous disorder of a magnitude similar to the mental distress established in Green, Bowman, and Roch. Therefore, the Court of Special Appeals correctly applied the Bowman standard and properly found that the evidence was sufficient to support a jury finding that Muriel was physically injured as a foreseeable result of Dr. Vance's negligent misrepresentation concerning his marital status.
Dr. Vance contends that because Muriel adduced no medical evidence to support her claim for mental distress, the case was improperly permitted to go to the jury. He relies on cases from other jurisdictions in which medical testimony was produced to establish claims for mental distress. See Johnson v. State, 37 N.Y.2d 378, 334 N.E.2d 590 (1975); Battalla v. State, 10 N.Y.2d 237, 176 N.E.2d 729 (1961). These decisions, however, do not require medical testimony as a condition to recovery of mental distress. Instead, the medical testimony in these cases was considered in conjunction with other facts and circumstances which tended to prove the genuineness of the claims.
We have recognized that a medical witness is ordinarily the only witness qualified to diagnose a physical ailment. Galusca v. Dodd, 189 Md. 666, 668-69, 57 A.2d 313 (1948). Furthermore, jurisdictions permitting recovery for mental distress have placed heavy reliance on the role of medical testimony to provide juries with an intelligent basis for evaluating such claims. See, e.g., Towns v. Anderson, 579 P.2d 163 (Colo. 1978); Johnson v. State, supra; Battalla v. State, supra. We have nevertheless permitted nonexperts to testify to facts they have observed, even though such facts are ordinarily provable through expert medical testimony. Galusca v. Dodd, supra, 189 Md. at 669 (nonexperts testified to plaintiff's bloody face and nervous condition). Thus, although use of expert medical testimony may be advisable in light of cases in which plaintiffs alleging mental distress have successfully established their claims, see, e.g., Bowman and Green, such
As a related consideration, Dr. Vance maintains that the only proper way to show causation is through medical testimony. We have, however, permitted plaintiff lay persons to testify to their physical injuries and mental distress without supporting medical testimony. Tulley v. Dasher, 250 Md. 424, 244 A.2d 207 (1968) (nervousness, headaches, upset stomach). Tulley relied on Wilhelm v. State Traffic Comm., 230 Md. 91, 185 A.2d 715 (1962), where the Court distinguished between situations where the cause of injuries need not be proved by expert testimony, and situations that required medical proof. The Court stated:
These occasions were distinguished from situations involving complex medical questions, and especially cases turning on purely subjective symptoms or in instances where there is a significant temporal lapse between the disability and the negligent act. In the second type of situation proof of causation must be by expert testimony.
Applying Wilhelm to the circumstances of the present case, there was legally sufficient evidence before the jury that Muriel's injuries resulted from the disclosure of her true marital status.
Dr. Vance contends that the Court of Special Appeals erred in holding that there was legally sufficient evidence before the jury to establish the separate and independent tort of intentional infliction of emotional distress. We agree.
At trial, Dr. Vance moved for a directed verdict on the intentional infliction of emotional distress count of Muriel's declaration on the ground that there was no evidence of any intentional conduct on his part in 1956, when the marriage took place, to inflict emotional distress upon Muriel. In granting the motion, the trial judge said that no evidence had been adduced to show that Dr. Vance's misrepresentation of his marital status in 1956 "was done at that time with the intention of the infliction of emotional distress upon Mrs. Vance." He pointed out that Muriel's declaration did not claim that the act of Dr. Vance, which amounted to the alleged intentional infliction of emotional distress, was the filing of the pleading in 1976 to annul the marriage.
In reversing the judgment granting the motion for a directed verdict, the Court of Special Appeals held that the trial judge was wrong in concluding that Dr. Vance's conduct must have been intentional in order to establish the tort. It suffices, the court said, "if the injury is inflicted by extreme and outrageous recklessness." Vance v. Vance, supra, 41 Md.
The count of Muriel's declaration charging the intentional infliction of emotional distress avers that Dr. Vance "knew for a period of almost twenty years that a previous marriage ... had not been dissolved at the time he was ostensibly wedded to the Plaintiff"; that Dr. Vance was guilty of extreme and outrageous conduct by "intentionally ... preventing the Plaintiff from the opportunity to validate their marriage by a later civil ceremony, and thereby legitimizing the issue of the apparent marriage"; and that "[t]he conduct of which Plaintiff complains is the Defendant's positive and intentional concealment of the fact of no timely dissolution of a previous marriage, which the Defendant had a duty to disclose." The count further alleges that Dr. Vance "concealed this information with the intent and purpose to cause Plaintiff to suffer severe emotional distress," and that he "knew that [Muriel] would be distressed by his intentional and malicious concealment, when once it was discovered, and to the type of outrageous conduct he displayed."
In her brief on appeal, Muriel states that the cause of action for intentional infliction of emotional distress "related to Dr. Vance's misrepresentation in 1956, not to the motion to annul" filed in 1976. It is thus readily apparent that the gist of the count is Dr. Vance's alleged intentional concealment that his marriage to Muriel was void; that his conduct in this regard was extreme and outrageous; and that it was intended to cause Muriel to suffer severe emotional distress upon discovery.
As to the first element of the tort — that the conduct must be intentional or reckless — we observed in Harris v. Jones, supra, 281 Md. at 566-67, that § 46 of the Restatement (Second) of Torts (1965), comment i, states, and the cases generally recognize, that the defendant's conduct is
Dr. Vance's negligent misrepresentation as to his marital status in 1956, followed by his subsequent concealment of that fact for almost twenty years, could not, of itself, have caused Muriel to suffer emotional distress because she had no knowledge of it. As Dr. Vance suggests, there must have been a subsequent revelation under circumstances such as a deterioration of the marriage which would prevent the situation from being remedied. Consequently, there was no evidence from which the jury could have concluded that in 1956, when Dr. Vance told Muriel that he was free to marry her, that he could or should have anticipated that under the circumstances existing some twenty years later, he would reveal what he previously concealed and cause Muriel to suffer severe emotional distress. Thus, Dr. Vance could have had no knowledge of what his concealment would likely occasion, and therefore the record fails to disclose any evidence in support of the first or second elements of the tort. Accordingly, the directed verdict was properly entered by the trial court and the Court of Special Appeals was wrong in taking a contrary view.
As to the count of the declaration for negligent misrepresentation: judgment affirmed.
As to the count of the declaration for intentional infliction of emotional distress: judgment reversed.
Costs to be paid by the appellant.