Richardson v. Boato

Hammond, J., delivered the opinion of the Court. : The appellant, who was the plaintiff in a tort action below, asks us to hold that the trial court erred in refusing :her motion to instruct the jury that the appellee was liable as a matter of law, leaving only the amount of damages for the jury.- The jury gave a verdict'for the appellee. While waiting in a proper lane to make a left turn, the automobile in which appellant was a passenger was' struck from the rear by an automobile driven by the appellee. The facts as to the accident are uncontroverted and there is no real dispute that the appellee., was guilty of negligence and the appellant free from-contributory-negligence. There is sharp dispute as to- ³⁰³ whether appellant suffered any injury or harm as a result of the negligence of the appellee.

There was testimony on her behalf that she tried to brace herself with her right arm and that she suffered from a stiff neck for a week after the accident, although she did not seek medical attention or lose any time from work. About two weeks after the accident, the appellant consulted a doctor about soreness in her right hand and wrist and her left elbow. She offered evidence to show that she suffered from acute arthritis and bursitis of traumatic origin, that she had been required to spend long periods of time in the hospital and that she had lost ninety-five days from work. The appellee testified that immediately following the accident, the appellant told him she had not been injured, and that she gave no evidence of any injury during the considerable time they spent in a nearby house, making telephone calls and having coffee.

There was also testimony that several days after the accident, the driver of the car he had struck met the appellee and said that no one was injured in the accident. The appellee offered medical testimony to show that the arthritis and bursitis did not come about because of the accident. He also introduced hospital records which supported this contention. At the close of the entire case, the appellant asked the court to grant her a directed verdict.

She did not limit or restrict the motion, except to say that all the jury should decide was the amount of the damages. The court refused to grant the motion, saying: “I think the crux of the case is whether the injury was sustained, and there was a casual connection between the accident and the claimed injury. In other words, if the jury finds as a fact that that was not the proximate cause of the injury, then they would in that case bring in a verdict for the defendants.” Torts are divided into classes by the writers and the cases. For example, the American Law Institute makes four subdivisions in the Restatement: (1) Intentional Harms'; (2) Negligence; (3) Absolute Liability, Deceit, ³⁰⁴ Libel, Wrongful Litigation, and so forth; and (4) Miscellaneous Torts.

Some of the reasons for the classifications have significance in this case. Historically, the action of trespass was the redress for intentional harms to person or property. If the injury came' from the negligence of another, or by reason of fraud or deceit, the remedy was by an action on the case.'' Where there was trespass, the defendant’s wilful breach of the peace was a wrong against the State, and civil rights and liabilities, and the injury to the individual; were incidental even though the right violated was one recognized as absolute. As the importance of civil rights and liability grew, there developed the rule, in- cases of trespass, that even in the absence of a showing of actual detriment, the law presumed an injury for violation of the absolute right.

On the other hand, as the use of the action on the case to recover for fraud,: deceit and negligence grew, emphasis was placed on the plaintiff’s actual loss, and if he were to establish an actionable wrong, it came to be vital. that he show actual injury resulting from the defendant’s act or omission. One may not recover in tort unless the defendant has violated a legal right of the plaintiff which has caused him injury. In the invasions of person or property for which trespass was the remedy, injury was presumed from the violation of the absolute legal right. In- the deceit and negligence cases, actual injury had- to .be shown to make an actionable wrong.

Webb’s Pollock on Torts, 214, points out that when an absolute right has been infringed, there is a cause of action without regard to actual harm. On the other hand, it is said: (p. 216) “Negligence, again, is a cause of action only for á person who suffers actual harm by reason of it. A man who rides furiously in the street of a town may thereby render himself liable to penalties under a local statute or by-laws; but he does no wrong to any man in particular, and is not liable tb á civil action, so long as his reckless behaviour is not the cause, of specific injury to person or property. * * * ³⁰⁵ So, in an action of deceit * * In Prosser on Torts, pg. 177, it is said that to sustain an action founded on negligence, there must be actual damage to a legally protected interest of the plaintiff. Then comes this language: “Since the action for negligence developed chiefly out of the old form of action on the case, it retained the rule of that action, that proof of damages was an essential part of the plaintiff’s case.” 38 Am.

Jur., Negligence, Sec. 11, p. 651, puts it succinctly: “These elements of duty, breach, and injury are essentials of actionable negligence. In the absence of any one of them, no cause of action for negligence will lie.” See also Schmidt v. Merchants Despatch Transportation Co. (N. Y.), 200 N. E. 824, 827 ; Sullivan v. Old Colony St. Ry. Co. (Mass.), 86 N. E. 511 . The decisions of this Court have recognized and applied the rules and distinctions we have discussed.

In Jackson v.