Henderson, J.,
delivered the opinion of the Court.
This appeal is from a judgment for the defendants in an action at law, after the court had sustained a demurrer without leave to amend. The declaration alleged that the plaintiff, the mother of two daughters aged sixteen and thirteen, respectively, sustained injuries through nervous shock and resulting physical injuries by reason of seeing her daughters struck and killed by an automobile owned by one of the defendants and operated by the other as his agent and servant. At the time of the accident the plaintiff was standing on the porch of her home, 1226 Forest Road, Sparrows Point; the daughters were standing on the parkway at the intersection of Route 151 and Route 20, waiting for a bus; the automobile came south on Route 151, jumped the curb and struck the children “in full view of the plaintiff”. The plaintiff, “petrified with horror at the sickening scene unfolded before her and torn with anxiety, ran to the children, who were languishing in pools of blood and in a dying condition”. She was confined to her bed for a considerable period as a result of the shock. There were allegations of negligence on the part of the defendants in the operation of the automobile and lack of negligence on the part of the plaintiff and her deceased children. The grounds of demurrer were that the declaration failed to allege any breach of duty to the plaintiff or to establish any cause of action on her behalf, and that the negligence alleged was not the proximate cause of the alleged injuries.
It has long been established in this state that recovery may be had for physical injuries resulting from nervous shock, even though there is no actual physical impact. Green v. Shoemaker, 111 Md. 69, 73 A. 688, 23 L. R. A., N. S., 667; Great A. & P. Co. v. Roch, 160 Md. 189, 153 A. 22; Bowman v. Williams, 164 Md. 397, 165 A. 182; Mahnke v. Moore, 197 Md. 61, 69, 77 A. 2d 923, 926; State, use Aronoff v. Baltimore Transit Co., 197 Md. [481]*481528, 531, 80 A. 2d 13, 14. The appellees contend, however, that although impact is immaterial if physical injury is caused by shock arising directly from the act or omission of the wrongdoer, it is essential that there first be established a duty owed to the plaintiff and a breach of that duty. The argument is addressed to the scope of the duty owed, rather than to any break in the chain of causation. No doubt, the question of foreseeability plays a part in the result reached under either theory.
In Green v. Shoemaker, supra, there were cumulative shocks produced by repeated blasting in the vicinity of the plaintiff’s dwelling, which on more than one occasion rocked the house, broke windows, caused plaster to fall and precipitated large rocks into the house. The court found that the actions, persisted in after notice to desist, amounted to a public nuisance. The plaintiff was a tenant in the house and thus entitled to complain of the invasion of her property rights. In Great A. & P. Co. v. Roch, supra, the manager of a store sent to a nervous woman customer a package containing a dead rat instead of the article ordered. The case was allowed to go to the jury on the theory of negligent mistake, although the declaration presented a case of an intentional and deliberate practical joke. In any event the wrongful act or omission was directed towards the plaintiff and not a third person. In Bowman v. Williams, supra, the plaintiff was standing at the window of his dwelling house when the defendants’ truck ran into the side of the house below where he was standing. His two children were in the basement. There was no physical impact to the plaintiff or his children, but the plaintiff was physically injured by the shock caused by his fright and alarm for the safety of his children. The court said (p. 164 Md. 403; 165 A. 2d, p. 184) : “there was imminent danger of physical contact that confronted the plaintiff, who had visible reason to apprehend that the impending peril caused by the negligent act or omission of the defendants’ servants with respect to their duty [482]*482to him would not only happen but would also crush and damage the building and inflict the threatened physical injury upon his children in the basement and himself in the dining room of the house. There was no basis to differentiate the fear caused the plaintiff for himself and for his children, because there is no possibility of division of an emotion which was instantly evoked by the common and simultaneous danger of the three.” Under the circumstances it was said (164 Md. p. 405, 165 A. p. 185) that “the father could have recovered whether this fright was for the safety of his children or of both himself and the children.” On the question of the duty owed, however, the court stated clearly (164 Md. p. 400, 165 A. p. 183) : “The master has the right to drive the truck upon the highway, but, in the exercise of this right, the master owes a duty to the other users of the highway, and the occüpants of the contiguous premises, so to operate the truck that any injury to the person or property rights of the other users of the highway and of the occupants of the contiguous premises will not be inflicted by the failure of the master to operate the truck with reasonable care and caution under the circumstances. * * * So the negligent, but not wilful, driving of the truck from the public highway through the wall of the house in which the plaintiff lived was the breach of duty which in the user of the highway the masters owed the plaintiff.” Again, the court said (164 Md. p. 402, 165 A. p. 184) : “the cause of the fright was the negligent act or omission of the defendants in permitting the truck to get out of control or be driven so as to run into the house of the plaintiff. This was a breach of duty that the defendants owed to the plaintiff.”
In Mahnke v. Moore, supra, the action was by a five year old child against the executrix of her deceased father. Moore maintained a wife and children in New Jersey, and a home in Maryland with a paramour and his illegitimate daughter. He murdered the child's mother with a shotgun in the child’s presence and confined her [483]*483in the room with the mangled corpse for six days. Thereafter, he committed suicide with the same weapon in the child’s presence, drenching her with his blood. It may be inferred that the child was herself in peril of physical harm by the murderer. The main question discussed was whether a child could recover in an action of tort against its parent. The existence and breach of a duty under the circumstances was assumed without discussion, although it was pointed out that “generally, the commission of murder or suicide is not a tort against an eyewitness.”
In State, use Aronoff v. Baltimore Transit Co., supra, the plaintiff’s intestate was standing inside the lobby of a store in which he was supervising the installation of plate glass windows. A truck, standing near the curb loaded with plate glass, was struck on the street side by a passing streetcar. He died from a heart attack induced by shock from seeing and hearing the crash and concern for the possible financial loss he might have sustained as a substantial owner of the plate glass company. While the decision that recovery could not be had was rested in part upon the proposition that the injury to his personal property was too remote, in the absence of any other immediate peril, the opinion closed with the statement, quoted from Jackson v. Pennsylvania R. Co., 176 Md. 1, 5, 3 A. 2d 719, 120 A. L. R.
Free access — add to your briefcase to read the full text and ask questions with AI
Henderson, J.,
delivered the opinion of the Court.
This appeal is from a judgment for the defendants in an action at law, after the court had sustained a demurrer without leave to amend. The declaration alleged that the plaintiff, the mother of two daughters aged sixteen and thirteen, respectively, sustained injuries through nervous shock and resulting physical injuries by reason of seeing her daughters struck and killed by an automobile owned by one of the defendants and operated by the other as his agent and servant. At the time of the accident the plaintiff was standing on the porch of her home, 1226 Forest Road, Sparrows Point; the daughters were standing on the parkway at the intersection of Route 151 and Route 20, waiting for a bus; the automobile came south on Route 151, jumped the curb and struck the children “in full view of the plaintiff”. The plaintiff, “petrified with horror at the sickening scene unfolded before her and torn with anxiety, ran to the children, who were languishing in pools of blood and in a dying condition”. She was confined to her bed for a considerable period as a result of the shock. There were allegations of negligence on the part of the defendants in the operation of the automobile and lack of negligence on the part of the plaintiff and her deceased children. The grounds of demurrer were that the declaration failed to allege any breach of duty to the plaintiff or to establish any cause of action on her behalf, and that the negligence alleged was not the proximate cause of the alleged injuries.
It has long been established in this state that recovery may be had for physical injuries resulting from nervous shock, even though there is no actual physical impact. Green v. Shoemaker, 111 Md. 69, 73 A. 688, 23 L. R. A., N. S., 667; Great A. & P. Co. v. Roch, 160 Md. 189, 153 A. 22; Bowman v. Williams, 164 Md. 397, 165 A. 182; Mahnke v. Moore, 197 Md. 61, 69, 77 A. 2d 923, 926; State, use Aronoff v. Baltimore Transit Co., 197 Md. [481]*481528, 531, 80 A. 2d 13, 14. The appellees contend, however, that although impact is immaterial if physical injury is caused by shock arising directly from the act or omission of the wrongdoer, it is essential that there first be established a duty owed to the plaintiff and a breach of that duty. The argument is addressed to the scope of the duty owed, rather than to any break in the chain of causation. No doubt, the question of foreseeability plays a part in the result reached under either theory.
In Green v. Shoemaker, supra, there were cumulative shocks produced by repeated blasting in the vicinity of the plaintiff’s dwelling, which on more than one occasion rocked the house, broke windows, caused plaster to fall and precipitated large rocks into the house. The court found that the actions, persisted in after notice to desist, amounted to a public nuisance. The plaintiff was a tenant in the house and thus entitled to complain of the invasion of her property rights. In Great A. & P. Co. v. Roch, supra, the manager of a store sent to a nervous woman customer a package containing a dead rat instead of the article ordered. The case was allowed to go to the jury on the theory of negligent mistake, although the declaration presented a case of an intentional and deliberate practical joke. In any event the wrongful act or omission was directed towards the plaintiff and not a third person. In Bowman v. Williams, supra, the plaintiff was standing at the window of his dwelling house when the defendants’ truck ran into the side of the house below where he was standing. His two children were in the basement. There was no physical impact to the plaintiff or his children, but the plaintiff was physically injured by the shock caused by his fright and alarm for the safety of his children. The court said (p. 164 Md. 403; 165 A. 2d, p. 184) : “there was imminent danger of physical contact that confronted the plaintiff, who had visible reason to apprehend that the impending peril caused by the negligent act or omission of the defendants’ servants with respect to their duty [482]*482to him would not only happen but would also crush and damage the building and inflict the threatened physical injury upon his children in the basement and himself in the dining room of the house. There was no basis to differentiate the fear caused the plaintiff for himself and for his children, because there is no possibility of division of an emotion which was instantly evoked by the common and simultaneous danger of the three.” Under the circumstances it was said (164 Md. p. 405, 165 A. p. 185) that “the father could have recovered whether this fright was for the safety of his children or of both himself and the children.” On the question of the duty owed, however, the court stated clearly (164 Md. p. 400, 165 A. p. 183) : “The master has the right to drive the truck upon the highway, but, in the exercise of this right, the master owes a duty to the other users of the highway, and the occüpants of the contiguous premises, so to operate the truck that any injury to the person or property rights of the other users of the highway and of the occupants of the contiguous premises will not be inflicted by the failure of the master to operate the truck with reasonable care and caution under the circumstances. * * * So the negligent, but not wilful, driving of the truck from the public highway through the wall of the house in which the plaintiff lived was the breach of duty which in the user of the highway the masters owed the plaintiff.” Again, the court said (164 Md. p. 402, 165 A. p. 184) : “the cause of the fright was the negligent act or omission of the defendants in permitting the truck to get out of control or be driven so as to run into the house of the plaintiff. This was a breach of duty that the defendants owed to the plaintiff.”
In Mahnke v. Moore, supra, the action was by a five year old child against the executrix of her deceased father. Moore maintained a wife and children in New Jersey, and a home in Maryland with a paramour and his illegitimate daughter. He murdered the child's mother with a shotgun in the child’s presence and confined her [483]*483in the room with the mangled corpse for six days. Thereafter, he committed suicide with the same weapon in the child’s presence, drenching her with his blood. It may be inferred that the child was herself in peril of physical harm by the murderer. The main question discussed was whether a child could recover in an action of tort against its parent. The existence and breach of a duty under the circumstances was assumed without discussion, although it was pointed out that “generally, the commission of murder or suicide is not a tort against an eyewitness.”
In State, use Aronoff v. Baltimore Transit Co., supra, the plaintiff’s intestate was standing inside the lobby of a store in which he was supervising the installation of plate glass windows. A truck, standing near the curb loaded with plate glass, was struck on the street side by a passing streetcar. He died from a heart attack induced by shock from seeing and hearing the crash and concern for the possible financial loss he might have sustained as a substantial owner of the plate glass company. While the decision that recovery could not be had was rested in part upon the proposition that the injury to his personal property was too remote, in the absence of any other immediate peril, the opinion closed with the statement, quoted from Jackson v. Pennsylvania R. Co., 176 Md. 1, 5, 3 A. 2d 719, 120 A. L. R. 1068: “The allegations being ‘insufficient to show a duty breached which was the efficient cause of the injury averred, the declaration is bad on demurrer’.”
In 2, Restatement, Torts § 312(d) a distinction is recognized between acts intended to cause distress and those that are merely likely to do so. The Mahnke case may, perhaps, be distinguished on this ground. Cf. Lambert v. Brewster, 97 W. Va. 124, 125 S. E. 244, and Monteleone v. Coop. Transit Co., 128 W. Va. 340, 36 S. E. 2d 475.
Section 312 (e) of the Restatement deals with negligent acts: “(e) On the other hand, an act, which is merely negligent as threatening an immediate harm to [484]*484a third person, is not negligent to another solely because of the possibility that the peril or harm of such a person ■ may indirectly cause fear, grief or similar emotional disturbance to others because of their interest in and affection for the third person and the possibility thát they may be in such a physical condition that the emotional disturbance may be physically harmful. This is so irrespective of whether the other witnessed the third person’s peril or hárm or is informed of it immediately thereafter or at some subsequent period, and irrespective of whether they are or are not members of the same immediate family.”
Section 313 contains a caveat, however, that: “ThA Institute expresses no opinion as to whether an actor, whose conduct is negligent as involving án unreasonable risk of causing bodily hárm to a child or spouse is liable for an illness of other bodily harm- caused to the parent; or' spouse who witnesses the peril or harm of the child or spouse and thereby suffers anxiety or shock which is the legal cause of the parent’s or spouse’s illness of other bodily harm.”
We think the fundamental consideration is the extent of the duty owed, bearing in mind that “no áct will be' considered negligence merely because in fact it causes-fright-and injury through it, if it had no tendency' to cause anything but fright.” Bohlen, Studies in- the Law of Tort, p. 289. In Waube v. Warrington, 216 Wisc. 603, 605, 258 N. W. 497, 98 A. L. R. 394, a- case' strikingly similar on the facts to the instant' case, the Wisconsin court said: “the quéstion presented is whether the mother of a child who, although not put in peril- or fear' of physical impact, sustains the shock of witnessing the negligent killing of her child, may recover for' physicál injuries caused by such fright or shock. The problem must be approached at the outset from the viewpoint of the duty of the defendant and the right of the plaintiff, and not from the viewpoint of proximate cause.” The court furthér said (216 Wisc. p. 613, 258, N. W., p. 501) that the duty and correlátivé right ;“eari' [485]*485neither justly nor expediently be extended to any recovery for physical injuries sustained by one out of the range of ordinary physical peril as a result of the shock of witnessing another’s danger.” We think the case of Spearman v. McCrary, 4 Ala. App. 473, 58 So. 927, 928, is not to the contrary. The plaintiff herself was in the highway where the child was injured, and the court said that “a breach of duty owing to the plaintiff as a traveler on a public highway” was conceded. The case of Frazee v. Western Dairy Products, 182 Wash. 578, 47 P. 2d 1037, was a case where the shock was caused by apprehension that a runaway truck would strike the plaintiff’s house and injure her son.
In Palsgraf v. Long Island Railroad Co., 248 N. Y. 339, 162 N. E. 99, 100, 59 A. L. R. 1253, Judge Cardozo said: “The plaintiff sues in her own right for a wrong personal to her, and not as the vicarious beneficiary of a breach of duty to another * * This case was cited and discussed in State, use Aronoff, supra, as well as the case of Cote v. Litawa, 96 N. H. 174, 176, 71 A. 2d 792, 794, 18 A. L. R. 2d 216, where it was said: “Although there is some authority for the proposition that one owes a duty to the world at large to refrain from conduct creating an unreasonable risk of injury to others * * * it has been held in our State, and apparently by the great majority of jurisdictions in this country, and we are of the opinion, that in actions for failure to use ordinary care, a duty towards the complaining party must be shown to exist.” In that case the accident happened in front of the mother’s house and she did not see it, but the child was immediately carried into the house by the automobile driver, causing shock. Recovery was denied.
The appellant relies strongly upon the case of Hambrook v. Stokes (1925) 1 K. B. 141. In that case a mother saw an unattended lorry run downhill on a narrow lane towards her children, whom she had just left. It ran into a house before it reached the plaintiff. Banks, L. J. thought she could recover for the shock [486]*486of what she saw, not from what a bystander told her, if the shock was due to a reasonable fear of immediate personal injury either to herself or to her children. Atkin, L. J. conceded that a breach of duty must be shown, but found it was admitted by the pleadings. He went on to say that there was a duty to avoid shock to a parent then present; he saw no reason in principle why recovery should not extend to a mere bystander. He took occasion to disapprove the dictum of Kennedy, J. in Dulieu v. White, (1901) 2 K. B. 669 that “the shock, where it operates through the mind, must be a shock which arises from a reasonable fear of immediate personal injury to oneself.” Sargant, L. J., dissenting, thought the test was the personal peril to the plaintiff, and saw no basis for a distinction between a mother and mere bystanders in the lack of duty owed. In Bowman v. Williams, supra, Judge Parke quoted from the opinion of Atkin, L. J. denying that “the shock must be a shock which arises from a reasonable fear of immediate personal injury to oneself”, but said (164 Md. p. 403, 165 A. p. 184) : “The instant case does not require the doctrine to be extended so far as is indicated by the opinion quoted * * *. Here there was imminent danger of physical contact that confronted the plaintiff * * *.”
In Hay v. Young, (1943) A. C. 92, a woman suffered shock from hearing the crash of a collision between a motorcycle and another vehicle, forty-five feet from where she was standing, and from the sight of the dead cyclist immediately afterwards. She was not related to the dead man. On appeal, the Law Lords agreed that there was no breach of duty shown. Lord Thankerton said the plaintiff was “not in. the area of potential danger”. Discussing Hambrook v. Stokes, he thought the dictum of Atkin, L. J. was “too wide”. Lord Russell of Killowen stated frankly that he preferred the dissent of Sargant, L. J. Lord Macmillan reserved his opinion on Hambrook v. Stokes, but remarked that the statement of the rule by Kennedy, J. had been followed in Scotland. Lord Wright said that he took the dictum of Atkin, L. J. [487]*487as applicable only to “persons so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question”. In other respects he inclined to follow the Hambrook case. Lord Porter referred to the Ham-brook case as “the high water mark reached in claims of the character now in question”. He suggested that the case might be confined to its facts since leaving a vehicle unattended was “a potential danger to all those in the way”. He thought the allegations did not raise a duty to persons not using the highway. “The duty is not to the world at large.” The position of the House of Lords seems to be, therefore, that Hambrook v. Stokes rested on a concession of duty owed and the question as to the limits of the doctrine is still open. These and other cases are discussed in an exhaustive note in 18 A. L. R. (2) 220. See also Prosser, Torts § 34, p. 217; Green, 27 111. L. R. 761; and Smith, 30 Va. L. R. 193, 237.
We adopt the view set out in Section 312 (e) of the Restatement, with the possible qualification that once a duty is established damages need not be apportioned between fear for oneself and for others. We are not disposed to extend the doctrine of the Bowman case; indeed, we have indicated in State, use Aronoff v. Baltimore Transit Co., supra, that it should not be extended. We see no logical reason for holding that liability does not extend to bystanders or persons less closely related than a child or spouse, but may extend to a child or spouse, as indicated in the caveat in § 313. We think the operator of a motor vehicle on the highway is not liable to spectators in a place of safety off the highway for visible shock to them. If such a rule were adopted it would involve a tremendous extension of liability to the world at large, not justified by the best considered authorities. Our conclusion, of course, does not preclude action by the mother under our prototype of Lord Campbell’s act for pecuniary loss caused by the negligent killing [488]*488of the children. We think the demurrer was properly-sustained.
Judgment affirmed, with costs.