Green v. T. A. Shoemaker & Co.

Pearce, J., delivered the opinion of the Court. This is an action by the appellant, a married' woman, to recover damages for alleged injuries to her property and person, caused by the blasting of rocks by the defendants in the vicinity of her dwelling. She lived at Alberton in Howard County, about two hundred yard’s from the line of the B. & O. R. Co., and the defendants were contractors, who were engaged in extensive work upon the line of said railroad during the year 1906, which required- the blasting of large quantities of rock by'explosives. The declaration contained four counts, and the first and second are substantially the same.

They allege that at the time of the grievance complained of, the plaintiff, as tenant, was in possession of three certain rooms in a house belonging to Mrs. Annie Mcllvaney, in which said three rooms the plaintiff resided, and to the exclusive possession of which she was entitled; that the defendants from about April 14th, 1906 to December, 1906, were engaged in blasting large quantities of rock near her said residence, and by means thereof caused large rocks and stones to be cast on the house in which she resided, and the lot of land appurtenant thereto, destroying doors, windows, sashes, and glass therein, breaking the roof and porches, and cracking the walls and ceilings of said house, and particularly of the three rooms occupied by the plaintiff; breaking the glass and china of the plaintiff and otherwise injuring her property, and wrongfully depriving her thus of the quiet and peaceable possession of said rooms as her dwelling. These two' counts further alleged that in consequence of said blasting the plaintiff was struck and wounded by falling plaster and debris, “and was caused immediately by said blasting to be violently shaken and jarred, whereby she was greatly injured ⁷² physically * * * and her health has been greatly damaged and shattered, and her nervous system disordered, and she has suffered great physical pain in consequence, and has sustained severe and permanent physical injuries.” The third and fourth counts are substantially the same. These counts, after alleging the plaintiff’s title to, and occupation of, said three rooms, and the blasting operations of the defendants, with the resulting damage to said dwelling and rooms, as set forth in the first and second counts, further alleged that, “immediately, and in consequence thereof, all persons on or about said premises, and those living in said rooms, including the plaintiff, were kept in continual fear and jeopardy of their lives, rendering a proper attention by the plaintiff to her duties full of fear and danger; and as a further consequence the plaintiff was wrongfully deprived of the quiet and peaceable possession of said rooms as her abode, and was frequently compelled, by day and by night, to seek shelter in the cellar; and that as a further consequence, the said dwelling, and the said plaintiff’s rooms therein were subjected to incessant and violent vibrations, * * * and the plaintiff, and all other persons in said rooms, were subjected to frequent and violent physical jars, and that plaintiff's health has been thereby greatly damaged and shattered, and her nervous system disordered, and she has by reason suffered great physical pain and has sustained severe and permanent physical injuries.” The defendants filed the general issue pleas. The plaintiff testified that previous to 1901 she rented and occupied the same rooms as tenant of Mrs. Mcllvaney, paying as rent three dollars a month; that in 1901 Mrs. Mcllvaney’s husband died, and she then went to work in a mill nearby; that plaintiff then agreed with Mrs. Mcllvaney to take care of her children and do her house work while she was at the' mill, and that her rent for the same rooms, at the same rate, should be paid for by said services instead of in money, as theretofore; that there was no community of interest or occupation of said house between Mrs. Mcllvaney and the ⁷³ plaintiff; that she had exclusive possession and control of her three rooms, and Mrs. McHvaney of the residue of said dwelling; that Mrs. Mcllvaney furnished the meals, prepared the same, and they were eaten in her part of the house, and the plaintiff’s arrangement for her family was the same, and that all their household arrangements were separate and distinct. ' She testified that the first blast was on April 14th, 1906; that it knocked nearly half the plastering from the wall of the room she was in, and part of the ceiling; none of it then fell on her, though some fell on Mrs. Mellvaney’s child.

It seemed to lift the house up and then let it fall. It broke every glass in the window except one. It threw the table upside down. It broke two dozen jars belonging to the plaintiff in the cellar of the house.

On April 24th a stone hurst through the roof and ceiling and came down through plaintiff’s bed, mattress and spring, and broke the slats and rollers. It weighed 22 pounds. That blast tore the window sash out, broke some in two, and threw them across the room. They did not sleep in that bed for six weeks after that.

This blasting kept up till the fall of 1906. They often had to leave their meals and run to the cellar, and were in terror all night of being killed. She had to sit up in a chair at night the best part of six weeks while they were blasting across the river. She said, “my nerves were completely broken down through fright, and I was not able to do my work.

Before that time I was in ordinary health, and never was nervous. Since then I have had no health at all. Dr. Miller attended me for this nervousness, and he came every day during the latter part of April, and after that every week or so until fall.” Dr. Miller testified that he was her family physician before and after this blasting; that after April 14th plaintiff developed nervous prostration which he attributed to the shock of the blasting. George Green, plaintiff’s husband, testified that he worked for defendants at that time; that there was constant blast- ⁷⁴ going on, and that in consequence his wife had become a nervous wreck; that she was thirty years of age, and before this blasting had always attended to all her household duties, but since then has been unable to do so.

On cross-examination he said: “As far as the renting of the house was concerned I did not think the house' belonged to me. I did not have any jurisdiction over it. I bought the set of furniture to which the bed belonged 16 years ago. My two'sisters lived with me and I collected $8.00 a month rent from them.” It is quite plain, as the whole rent paid Mrs. Mellvaney ‘ was $3.00 a month, that the $8.00 per month paid George Green by his sisters, and which he called rent, must have been for their board which was supplied by him.

Mrs. Harris, the former Mrs. Mellvaney, who had since married, testified that she was a sister-in-law of Mrs. Green and that the agreement in regard to the rent of her rooms was that “she was to take care of my children and do the work while I worked in the mill.” She was then asked what Mrs. Green was to get for that,5 and she replied: “The use of the rooms she rented.” Mrs. Davis, Walter Old Hold Hamilton Oldfield testified to the terrific blasting and ¡ -’"e damage of the property. Hpon the close of the plaintiff’s testimony the defendants moved to strike out all the evidence of the plaintiff’s witnesses “bearing on the nervous condition and nervous shock to the plaintiff, and any physical injury resulting from such 'nervous shock, such testimony having been admitted subject to exception, because there is no evidence of any physical impact or corporal injury to the plaintiff.” This motion was granted, and the first exception was taken to that ruling. The defendants then prayed an instruction, “that under the pleadings and evidence in the case there is no evidence legally sufficiént to entitle the plaintiff to recover, and their verdict must be for the defendants,” and the second exception was taken to the granting of that instruction. ⁷⁵ The' defendants having filed only the general issue idea to all the counts of the amended declaration, there is no question arising as to the form of the pleadings, and there are only two questions which it is necessary to consider: 1st. Can the plaintiff, upon the evidence which was admitted, recover damages for the interference with her quiet possession and enjoyment of the rooms occupied and rented by her ?; and, 2nd.

Does a cause of action lie for physical injury resulting from fright and nervousness caused by the wrongful acts of the defendants ? The evidence is undisputed that the rent for these rooms war, always paid by the plaintiff and not by her husband, and that the agreement of renting was made by Mrs. McHvaney with the plaintiff alone. We are of opinion that under the evidence, the plaintiff was not a mere lodger, the landlady retaining the legal possession of the whole house, but that she was a tenant entitled to the exclusive possession and control of the rooms she occupied. Blasting of rocks by the use of gunpowder or other explosives in the vicinity of another’s dwelling house, is a nuisance, and the person doing the act, or causing it to be done, is liable for all injuries that result therefrom.

Wood on Law of Nuisances, 153; 29 Cyc., 1167; Hay v. Cohoes, 2 Comstock, 159; 2 Greenleaf on Evidence, sec. 254. Each count in this declaration charges acts which constitute a public or common nuisance, and' also discloses special injuries sustained by the plaintiff, recoverable in a private action. Among these special injuries were, that “all persons living in said rooms including the plaintiff were kept in continual fear and jeopardy of their lives rendering a proper attention by the plaintiff to her duties full of fear and danger.” This is the same allegation made in the narr. in Scott v. Bay, 3 Md. 431 , which was a case of blasting, and in which the Court said, damages for such injuries were recoverable in case. In Webb’s Pollock on Torts, the author says: “The conception of private nuisance was formerly lim ⁷⁶ ited to injuries done to a man’s freehold by a neighbor’s acts, of which stopping or narrowing rights of way and flooding land by the diversion of water courses appear to have been the chief species.

In the modem authorities it includes all injuries to an owner or occupier in the enjoyment of the property of which he is in possession, without- regard to the quality of the tenure.” The same author, on page 494, says: “The kind of nuisance which is most commonly spoken of by the technical name, is the continuous doing of something which - interferes with another’s health or comfort, in the occupation of his property, .such as carrying on a noisy or offensive trade.” The general rule of the common law is that every action must be brought in the name of the party whose legal right has been invaded or infringed. 15 Enc. Pl. & Pr., 484. Eor the immediate wrong and damage the person injured is the only one who can maintain the action. Idem, 578. “The person who sustains an injury is the person to bring an action for the injury against the wrongdoer.” Dicey on Parties, 347.

We think this action was properly brought by the plaintiff. Even if no other damage were shown, than the breaking of the two dozen jars which were her personal property she would be entitled to at least nominal damages which would carry costs. In Hazard Powder Co. v. Volger, 7 C. C. A. 130 , a husband, Schultze Volger, sued the Hazard Powder Co. alleging that it maintained a powder magazine, in violation of a city ordinance and that its explosion wrecked his house, and injured his wife. His house was erected on the land of another under a license.

He gave up his position to nurse his wife, and it was held that peaceable possession was evidence of his right to maintain the action without regard to title. It was also held that he could recover for the loss of his wife’s services, and the value of his own services as a nurse, that is, what would have been the reasonable cost for a hired nurse. The wife, also brought a separate suit to recover for own personal injuries, and did recover. It does ⁷⁷ not appear from the report of the case what was the character of her injuries, and these cases are only cited to show that separate recoveries were there allowed.

It follows from what we have said that it was error to grant the defendant’s prayer which absolutely withdrew the case from the jury. This brings us to the important question involved in the granting of the motion to strike out all the testimony bearing on nervous shock to the plaintiff, and physical injury resulting therefrom. There is a wide divergence of judicial opinion as to whether a cause of action will'lie for actual physical injuries resulting from fright and nervous shock caused by the wrongful acts of another, and it may be considered as settled, that mere fright, without any physical injury resulting therefrom, cannot form the basis of a cause of action. This is so, because mere fright is easily simulated, and because there is no practical standard for measuring the suffering occasioned thereby, or of testing the truth of the claims of the person as to the results of the fright.

But when it is shown that a material physical injury has resulted from fright caused by a wrongful act, and especially, as in this case,