Zeigler v. F Street Corp.

Marbury, J., delivered the opinion of the Court. This appeal is from an order of the Circuit Court for Prince George’s County, where Judge Bowie sustained the defendantsappellees’ demurrers to counts one and three of the plaintiff-appellant’s amended declaration. As observed by the trial court, the issue was “whether or not damages are recoverable for death resulting from mental distress over negligent damage to one’s real property under the circumstances set forth in the Amended Declaration.” We agree with the lower court that the demurrers should have been sustained and that counts one and three of the plaintiff’s amended declaration did not state a cause of action. The property of the plaintiff, Virginia Ruth Zeigler, and of her deceased husband, Ernest T. Zeigler, at 3315 Naylor Road, Silver Hill, Maryland, is located at the bottom of a slope, the upper portion of which was owned in 1963 by P. M. & T., Incorporated.

In the summer of that year P. M. & T., Incorporated cleared the slope behind the plaintiff’s house, which resulted in an increased flow of water onto the plaintiff’s property, necessitating the installation of a sump pump in their ²²⁵ home, which had not been necessary during the twenty-six years they had resided there. On July 3, 1965, appellee P. M. & T., Incorporated, conveyed its property to the F Street Corporation but continued to work on the project in the capacity of general contractor. The project involved cutting and filling the slope behind the plaintiff’s home which resulted in considerable amounts of dirt and debris being deposited on the plaintiff’s property. Mr. and Mrs. Zeigler notified appellees of this condition and they in turn subsequently removed the dirt and debris and began the construction of a cinder block retaining wall which proved to be inadequate and was not completed.

Throughout the period from the summer of 1965 until the filing of this suit, the appellees continued their cutting and filling operations. The appellant alleges that due to the damage done their property that her husband became increasingly concerned and upset until February 20, 1966, when his nervous condition led to his untimely death. Although originally the amended declaration alleged wantonness, wilfull trespass, and gross negligence, it was further amended during the course of the hearing on the demurrers so as to specify that the wrongful death action was based on negligence and not on an intentional tort. In sustaining the defendants’ demurrers the trial court relied on State, Use of Aronoff et al. v. Baltimore Transit Co., 197 Md. 528 , 80 A. 2d 13 , 28 A.L.R.2d 1062 .

There, the plaintiff’s decedent saw a street car negligently collide with his truck which was loaded with glass and in the confusion and excitement following the collision the decedent