Rasmussen v. Benson

280 N.W. 890, 135 Neb. 232, 122 A.L.R. 1475, 1938 Neb. LEXIS 168

Opinions

Day, J.

This is an action for damages arising from the sale of a sack of poisoned bran. Benson held a farm sale and sold a portion of a sack of poisoned bran to Rasmussen. This sack was not labeled “Poison,” and Rasmussen fed the bran to his dairy cows and other live stock. As a result, five of his ten cows died and five were so poisoned as to be sick and rendered unfit for further dairy purposes. A hog and some twenty chickens also died as a result of the poison in this feed. Rasmussen lost his dairy route, and his business which he had built up during ten years, and which was his only means of livelihood for himself and his family, was destroyed. It is alleged that as a result of the great mental and nervous shock caused by the poisoning of his live stock, the subsequent loss of his dairy business, and the fear of communicating the poison to his dairy customers, he be-y came fatally ill and died. According to the medical testimony he died of a decompensated heart caused by an excessive emotional disturbance. Rasmussen himself commenced this action, but at his death it was revived and continued by his wife as administratrix of his estate.

An opinion was formerly adopted in this case, to which reference is made for additional facts not deemed necessary of repetition. Rasmussen v. Benson, 133 Neb. 449, 275 N. W. 674. An oral argument was allowed on the motion for rehearing, and additional briefs were filed by the parties. After this careful consideration the court is of the opinion that, under the circumstances of the case, Ras mussen was entitled to recover for damages occasioned by loss of his live stock and the , loss of the dairy business. This court erred, complains the appellant, in failing to distinguish between negligence with respect to his property and negligence with respect to his person. In other words, even if the recovery for damage to the property is correct, Benson insists that the law does not justify a recovery for the sickness and death of Rasmussen. The verdict was a general one for $3,500 and cannot be segregated by this court.

Is the appellant liable for the decompensated heart caused by the great mental and nervous shock resulting from his negligence, which proximately caused the sickness and death of the deceased? There is sufficient evidence to sustain the verdict of the jury that the appellant was negligent in the sale of the unlabeled, poisoned bran in such a way that it was likely to be used for feed for live stock. The bag of bran was sold from a hayrack with other small articles as a part of a farm sale, but there is dispute in the evidence as to what the auctioneer said, as agent for the appellant, with reference to the bran itself when it was offered for sale. The witnesses for the appellee testify that the auctioneer stated to Rasmussen and the others at the sale that the sack contained bran, and that it would make some cheap feed for cows. Witnesses for Benson state that they do not remember such a statement, and that 5 the auctioneer said to the crowd: “I think it is bran,” and ' it was sold that way. There is no dispute in the evidence • as to whether or not the bran was labeled “Poison” in any ’ way. Benson himself testifies that one moonlight night, ■ about March 1, 1935, he picked up a piece of cardboard 1 from the floor of the barn, and, not knowing what it was, carried it to the house so that he might look at it in the " light. When he reached’ the kitchen he discovered that he : was carrying the. red “poison” label'which had bectime detached from the sack of bran, and instead of replacing it on the sack he put it in á drawer of the kitchen cupboard. ■ The tag is in evidence: : '

Benson was conducting this sale personally and through his agents. At his request a nephew had made arrangements for the auctioneer and clerks, and at his request, or at least with his acquiescence, his nephew and some neighbors picked up and arranged the items for the sale. The nephew and another who prepared for the sale were present when the bran was sold. Benson was not actually present at the time of the sale of the bran, but he had been present just before, and he returned to the scene of the sale shortly afterwards. There is proof that he interfered with the progress of the sale when the auctioneer was selling some corn for seed corn, and stated it was not good for seed corn, but would serve all right for feed. The evidence amply supports the allegation that he sold the bran at least through his agents. Even the appellant asserts in his brief for rehearing that it was sold in a “gunny sack” as “bran for stock.”

After the sale was over Rasmussen returned to his home, and fed the bran purchased at the sale to his ten dairy cows and other live stock that night. The next morning, after lie had milked and delivered the milk to his customers, the cows became very sick. As soon' as he discovered this, Rasmussen telephoned all the customers and went by automobile to notify those without telephones. Later a chemist tested the bran and found that it was 1.75 arsenic, or 122.5 grains to a pound, while five grains is sufficient'to kill a cow. According to this witness, time does not affect the strength of the poison. The veterinary who cared for the cows confirmed the finding of arsenic in the bran. According to the testimony, there was more than enough' arsenic contained in that sack of bran to kill all the people in the adjacent town of Minden where the customers of the deceased lived. We are confirmed in the belief that in this' case the appellant was negligent in the sale of poisoned bran for stock food, or in selling it unlabeled so that if might be used as such. In this case the negligence of the appellant caused the loss of Rasmussen’s cows and other live stock, together with the loss of his dairy business. In addition to the loss of personal property, Rasmussen suffered a decompensation of the heart caused by the severe mental stress and shock, which resulted in his death. Rasmussen started his dairy business in 1926 with three cows, and at that time he owed the bank about $2,000. He had developed his business until he had paid the debt to the bank, increased the number of cows to ten or twelve, and gained over fifty customers to whom he was selling from seventy-five to eighty quarts of milk a day. After the cows became sick he was naturally fearful lest the milk which he delivered to his customers from the poisoned cows would endangér the lives of many people to whom he felt a responsibility because they were customers of the dairy. The deceased was under such a strain that when the rendering plant came to get the dead animals he fainted and fell down in the yard. He took to his bed and was later in the hospital two different times. The bran was sold and fed to the cows on May 15, 1935, and Rasmussen died on February 20, 1936. He was not able to do any work from May 23, 1935, to the time of his death, although fully able to do so prior to the first date. Medical experts testified as to his health before and after the poisoning of the cows. They testify that his condition, as well as his death, was due to a decompensation of the heart caused by mental shock and emotional upset. Is the appellant liable for the full consequences of his negligent act in selling unlabeled, poisoned bran in such a way that it was likely to be fed to dairy cows whose milk was being delivered to the many customers of Rasmussen’s dairy? It was only by extraordinary efforts that the deceased was able to prevent this. His cows were destroyed; his dairy business which he had built up during ten years was wiped out; he was deprived of his livelihood for himself and his family; and his was the responsibility of poisoning many people who consumed the milk from the poisoned cows. According to the evidence, his death resulted from the circumstances arising from the negligent sale of the poisoned bran. In such a situation is recovery limited to the value of the cows as personal prop erty? Is the appellant’s liability for his negligence limited to the value of the personal property and not extended to> the damage actually resulting from that negligence?

The deceased feared that he might poison some of his customers to whom he delivered the milk from the poisoned cows. It is not so important whether or not this actually happened as it is that he had some foundation for the fear, and suffered a severe emotional upset because of it. It is a common belief among people that arsenic poison may be communicated through milk. It has been stated in authoritative works that traces of arsenic have been found in cows’ milk after giving the cows relatively large but not fatal doses of the poison, and that traces of arsenic have been found in mothers’ milk where there hp,s been medication. 3 Hefter, Handbuch der Experimented Pharnokologie, Part I, p. 482.

Another authority states that arsenic is excreted very slowly. It appears in the urine and feces within twenty-four hours, but only about one-fifth is eliminated in this way, and the rest may be excreted a month later. Fatal intoxications are said to have been found in a child, communicated to it from its mother’s milk. Cushing, Pharmacology, Edmund and Gunn’s Edition (1936) p. 194.

It is stated by another that a mother who has taken arsenic communicates the poison through her milk to her child. “That the milk of women who are taking arsenical preparations medicinally contains arsenic was known as early as 1838, when Thomson recognized its presence after the use of the iodid. A woman was given 0.008 gm. (0.012 grain) of arsenic daily for six days; 100 gm. of her milk were found to contain 0.001 gm. of arsenic. Two cases are recorded of the fatal poisoning of nursing infants to whose mothers arsenic had been given with homicidal intent. In one of these Silliman obtained decisive evidence of the presence of arsenic in the stomach and liver. In the other case it was only when a second attempt was made, about fifteen months later, to poison the mother, that the cadaver of the infant was exhumed and found to contain notable quantities of arsenic. In a case of alleged homicide of an infant of two months, in whose cadaver Brouardel and Pouchet found a quantity of arsenic estimated at 0.005 gm. (0.8 grain), they expressed the opinion that the poison found might have originated from arsenical preparations taken by the nursing mother.” 4 Witthaus and Becker, Medical Jurisprudence, Forensic Medicine and Toxicology (2 ed., 1911) p.. 421.

These statements from the authorities are given this attention because appellant has taken the position, ■ both in the briefs and in the oral argument, that he was not responsible for the damages resulting from his negligence in this case. The evidence in this case refutes the idea that the deceased was an unduly nervous person given to worry and that a normal person would not have reacted in like manner. The record establishes the fact in this case that there was ample cause for an emotional upset, and the medical experts testify that the condition of deceased was caused by the mental disturbance.

In order that it may not be misunderstood, in this case /the deceased was confronted with a series of disturbing facts. He had worked long and hard to build up this dairy business from a. very small beginning. It was entirely destroyed by the negligence of the appellant. The business was his livelihood and that of his family. He was fearful lest he had poisoned a considerable portion of the whole community in which he lived with the milk from the, poisoned cows. He fed the cows some of the poisoned bran in the evening, and he milked them and delivered the milk to his customers the next morning. The cows were noticed to be sick later in the forenoon, by his wife, and Rasmussen then-made extraordinary efforts to prevent the poisoning of his customers. He had been accustomed to doing manual labor before this, but eollapsed when the men. came from the rendering plant to take away the dead live stock. He-was confined to the hospital from May 25 to May 29, 1935, and .again from October 5. to October 9. He-was confined -to his bed most of the time, although he occasionally sat up. He was assisted up and down stairs, and was taken to the doctor’s office. However, he was unable from that date until his death to do any work of any kind, and he died on February 20, 1936, or a little more than ten months from the date of the sale. The evidence in this case establishes that the death was caused solely by the negligence of the appellant.

This court has permitted recovery for the physical consequence of fright or shock in certain cases. In Netusil v. Novak, 120 Neb. 751, 235 N. W. 335, and in its second appearance here, 122 Neb. 749, 241 N. W. 531, recovery was allowed for physical injury resulting from fright and shock by an attack of a vicious dog which barked but did not bite, causing the woman attacked to swoon in the street. The dog was owned by one who owed the attacked woman the legal duty to pass his house in safety upon the street abutting his property.

The Netusü case followed and cited Hanford v. Omaha & C. B. Street R. Co., 113 Neb. 423, 203 N. W. 643. In the Hanforcl case a woman was waiting in the street to board a standing street car when a following street car crashed into it, causing her to jump backward to avoid a collision. There was no impact of either car with her body, but she sprained her back in jumping backward. The rule is well established by these authorities that a physical injury resulting from an emotional upset produced by the negligence of another creates liability for damages.

This case can be made more difficult and the opinion seem to reach the wrong conclusion by a misconception of the facts in the case. If the facts are different than presented in this case, different reasoning and a different conclusion might be necessary. This is not an allowance of a' recovery for worry alone. The terror and the situation that confronted the deceased caused his illness and death. It was accompanied by this serious injury, a physical one. There is a difference of authority, and one doctrine is that there can be no recovery for fright unaccompanied by a contemporaneous physical injury:, These cases follow the rule announced in Mitchell v. Rochester Ry. Co., 151 N. Y. 107, 45 N. E. 354. The rule is also announced in Louisville & N. Ry. Co. v. Roberts, 207 Ky. 310, 269 S. W. 333, that no recovery can be had for physical injuries due to fright without physical impact. But there are other jurisdictions where there may be a recovery for physical injuries although the fright is unaccompanied by a contemporaneous physical injury. See Cashin v. Northern P. R. Co., 96 Mont. 92, 28 Pac. (2d) 862, where damages for actual injury to nervous system resulting from fright and mental shock were allowed although not accompanied by a contemporaneous physical injury. See, also, Chiuchiolo v. New England Wholesale Tailors, 84 N. H. 329, 150 Atl. 540, and Frazee v. Western Dairy Products, 182 Wash. 578, 47 Pac. (2d) 1037. This jurisdiction adopted that rule in Hanford v. Omaha & C. B. Street R. Co., supra, and Netusil v. Novak, supra. These were not odd or unusual decisions, but are supported by logic and authority.

In Watson v. Dilts, 116 Ia. 249, 89 N. W. 1068, it was said: “Recovery may be had for nervous prostration from fright, caused by defendant’s trespassing, by stealthily entering, in the night-time, plaintiffs home, this being a physical injury, and the proximate result of the wrong.” In Sundquist v. Madison Rys. Co., 197 Wis. 83, 221 N. W. 392, citing Pankopf v. Hinkley, 141 Wis. 146, 123 N. W. 625, it was held thal/liability may be based on physical disability resulting from extreme fright without bodily injury;,/John E. Hallen, Professor of Law, Ohio State University, in 19 Virginia Law Review, 271, states: “The older negligence rule which denied recovery without impact now seems to have become a minority doctrine, and courts which still adhere to that rule are quick to find some slight impact, and to permit recovery, although it seems apparent that the injuries were caused by the fright and not by the touch. It is predicted that if we require the plaintiff to be in danger of receiving a physical impact or to fear for her own safety, many courts will be equally quick to find these elements.” The right to recover is placed squarely on Hanford v. Omaha & C. B. Street R. Co., supra, and Netusil v. Novak, supra.

Complaint is made that injury was not forseeable in this case. In the Hanford case this court held that a tort-feasor was liable for injuries although they were not foreseeable. This rule is stated in 2 Restatement, Torts, sec. 461. This is not an unusual or unexpected result of the appellant’s negligence anyhow. The tort-feasor seldom contemplates the amount of the resulting injury, and that he does not anticipate the extent of the damage does not bring the case within that rule. There is no error in the record and the judgment is not disturbed.

Affirmed.