Ver Hagen v. Gibbons

177 N.W.2d 83, 47 Wis. 2d 220, 1970 Wisc. LEXIS 985
CourtWisconsin Supreme Court
DecidedJune 2, 1970
Docket241
StatusPublished
Cited by32 cases

This text of 177 N.W.2d 83 (Ver Hagen v. Gibbons) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ver Hagen v. Gibbons, 177 N.W.2d 83, 47 Wis. 2d 220, 1970 Wisc. LEXIS 985 (Wis. 1970).

Opinions

Hanley, J.

The sole issue before this court is whether one can recover for mental anguish and emotional distress [222]*222which is the result of another’s negligence and which is not manifested by, or causative of, any physical injury.

One of the earliest cases involving mental distress is Summerfield v. Westen Union Telegraph Co. (1894), 87 Wis. 1, 2, 57 N. W. 973. There this court denied recovery to one who, due to the defendant’s negligence, did not receive word of his mother’s illness until after her death. The plaintiff alleged that as a result he was “. . . ‘mortified, grieved, hurt, and shocked, and suffered intense anguish of body and mind, and was thereby thrown into a state of nervous excitement and tremor, which rendered him sick and impaired his health and strength, and that he still suffers from the effect of the same.’ ”

In denying recovery the court stated that “. . . for mental distress alone . . . damages are not recoverable, ...” 1 but then recognized, at pages 8 and 9, the following situations wherein damages for the infliction of mental suffering would be recoverable:

“. . . ‘(1) Where, by the merely negligent act of the defendant, physical injury has been sustained; and in this class of cases they are compensatory, and the reason given for their allowance is that the one cannot be separated from the other. (2) In actions for breach of the contract of marriage. (3) In cases of wilful wrong, espe[223]*223cially those affecting the liberty, character, reputation, personal security, or domestic relations of the injured party.’ . . .”

Later, in Gatzow v. Buening (1900), 106 Wis. 1, 81 N. W. 1003, recovery was sought for mental suffering and distress caused by a conspiracy to deprive the plaintiff of the hearse in which his deceased child was to be driven to the cemetery. There again the court noted that no physical injury had been inflicted upon the plaintiff and stated, at page 20:

“. . . [This] case does not fall within the few exceptions to the rule, — which prevails in this state and in most jurisdictions, — that mental distress alone is too remote and difficult of measurement to be the subject of an assessment of damages. . . .”

In Ford v. Schliessman (1900), 107 Wis. 479, 83 N. W. 761, it was held that one could recover for mental suffering caused by a direct assault upon her person even though the defendant neither touched her nor caused her physical injury. The court, however, denied recovery because the evidence was insufficient to establish that the defendant had actually assaulted the plaintiff or attempted to have carnal intercourse with her.

Subsequently, in Pankopf v. Hinkley (1909), 141 Wis. 146, 123 N. W. 625, an action to recover for physical injuries resulting from “severe fright and shock” was considered by this court. As a result of the defendant’s negligence, the plaintiff was thrown from her carriage and later suffered physical injuries in the form of a miscarriage due to fright and shock caused by the accident. In allowing recovery this court ruled that:

“The principle here decided is that when physical injury flows directly from extreme fright or shock, caused by the ordinary negligence of one who owes the duty of care to the injured person, such fright or shock is a link [224]*224in the chain of proximate causation as efficient as physical impact from which like results flow.” Pankopf v. Hinkley, supra, at page 149.

This ruling was later affirmed in Sundquist v. Madison Railways Co. (1928), 197 Wis. 83, 221 N. W. 392, wherein the plaintiff, although sustaining no immediate physical injuries following an automobile accident, was allowed to recover for paralysis which later resulted from the fear and shock caused by such accident.

In Waube v. Warrington (1935), 216 Wis. 603, 258 N. W. 497, however, recovery for physical injuries resulting from “. . . fright, shock and excessive sudden emotional disturbances” was denied because the plaintiff’s fear was not for her own safety, but for the safety of her daughter whom she had seen killed through the defendant’s negligent operation of a motor vehicle.2 The requirement that physical injuries resulting from fear be caused by fear for one’s own safety was later affirmed and illuminated in Klassa v. Milwaukee Gas Light Co. (1956), 273 Wis. 176, 77 N. W. 2d 397, and Colla v. Mandella (1957), 1 Wis. 2d 594, 85 N. W. 2d 345.

In Klassa it was held that one must not only be within “ ‘the range of ordinary physical peril’ ” but must actually be in fear for his own safety. In Colla the defendant had parked his truck atop a hill overlooking the house of the plaintiff’s deceased husband. When the truck rolled down the hill striking his house, he became extremely excited and later suffered a fatal heart attack. Although the truck had not actually struck the plaintiff’s deceased husband, recovery was allowed for his death which had been caused by his excitement and fear. In allowing recovery this court removed any doubt of its having [225]*225abandoned the requirement that there be direct physical impact upon the plaintiff before allowing recovery for physical injuries resulting from shock or fear for one’s own safety.

From the foregoing cases, it is clear that, while this jurisdiction has abandoned the requirement of physical impact, doubt remains as to when physical injuries which manifest emotional or mental disturbances are required as a prerequisite to recovery for negligent infliction of such disturbances.

The defendant-appellant takes the position that recovery is not allowed under the circumstances of this case. While he is correct in his contention, his reliance upon Alsteen v. Gehl (1963), 21 Wis. 2d 349, 124 N. W. 2d 312, is for the most part misplaced. Alsteen, unlike the instant case, was an action to recover damages for intentionally inflicted emotional distress. This court, not having previously considered such a case at length,3 there set forth four prerequisites to recovery for the intentional infliction of psychological injury. It did not, however, as urged by the appellant, require intent in all cases and thereby totally eliminate recovery for the negligent infliction of emotional distress. Had such been the court’s intent, it would have expressly overruled earlier case law to the contrary. An examination of such cases, however, indicates that psychological or emotional damage caused by negligence is, in limited circumstances, com-pensable.

In Alsteen, supra, the plaintiff sought recovery from one who had contracted to repair her house. This court there recognized that due to difficulties of proof it had previously been reluctant to allow recovery for emotional distress in the absence of attendant physical injuries which manifest such distress. However, it then noted that the factual basis for denying recovery in such cases [226]*226has changed and announced, at page 359, that . . we now possess the tools whereby we can intelligently evaluate claims of emotional injury. . . .”

The question now is whether such announcement is to be limited to cases involving intentional infliction of injury or also to be applied to negligent infliction of emotional distress.

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Bluebook (online)
177 N.W.2d 83, 47 Wis. 2d 220, 1970 Wisc. LEXIS 985, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ver-hagen-v-gibbons-wis-1970.