Justice Musmanno and the Case of the Bovine Buccaneers

Musmanno: The leading judicial humorist and wordsmith

DISSENTING OPINION BY MR. JUSTICE MUSMANNO:

Musmanno

The opinion has been edited. The full opinions, both dissenting and majority, are found @ http://www.leagle.com/decision/1958554393Pa161_1534/BOSLEY%20v.%20ANDREWS

Like those human beings who believe that fame and fortune always lie in some land distant from their own, the cows of the Dale Andrews farm in West Salem, Mercer County, were not satisfied to browse and chew their cuds in their own pasture. They were certain that in the fields across the highway which bordered their owner’s domain, the grass was greener, the earth fresher, the trees shadier, and the skies above bluer. Thus from time to time they would leave their own preserves and invade the Bosley farm on the other side of the road where, with the spirit of bovine buccaneers, they devoured their neighbor’s corn and wheat, destroyed his vegetable gardens, knocked over young peach trees, damaged the apple orchard, mangled berry bushes, and eventually departed, leaving behind them a wide swath of ruin and destruction. They sometimes went away of their own accord, but frequently they had to be driven back to their home territory by the Bosleys.

[393 Pa. 170]

On the morning of April 10, 1950, at about 9 o’clock they ambled over to the Bosley farm to breakfast in the fields which were the scene of former invasions but before they reached the regurgitation stage, Mrs. Evelyn Turner (married daughter of the Bosleys), assisted by a trained cattle dog, which was half collie and half of indeterminate breed, headed them off and sent them mooing back to their own pastures. By noon, however, they forgot their defeat of the morning and decided to visit the Bosleys for lunch. This time they came, eight of them, with reinforcements. They brought along their boy friend, a 1500-pound Hereford white-faced bull.

Inspirited and encouraged by their horned escort, the female bovines overran the peach trees and apple orchard when Mrs. Turner, who was in the field with her 6-year old son and the dog, sounded the alarm to her mother, Mrs. Bosley, then in the house. Mrs. Bosley at once rang up the Andrews on the telephone to tell them to call off their cloven-hoofed trespassers, and then hurried outside to assist her daughter, not knowing of the presence of Mr. Hereford. Mr. Hereford and Mrs. Bosley saw each other at the same time. Mrs. Bosley screamed, and the truculent Hereford lowered his head to charge. Terror-stricken, Mrs. Bosley tried to run, but, as in a bad dream one cannot flee although disaster is at one’s heels, she froze to the spot. As she later described the agonizing moment: “I turned around and looked, and he was coming at me with his head down, and I started to run, but I thought I could not get my legs to go and I choked up and I collapsed, and momentarily, I thought he was going to get me, I could just even feel that he was on top of me.”

In the meantime, the collie-mongrel dog, who was to become the unwreathed hero of the episode, bounded into the space between the bull and the terror-stricken woman. The bull then, as dull-witted as his brothers

[393 Pa. 171]

in the shouting arenas of Spain who pursue an innocuous red rag, took after the dog, and Mrs. Bosley was saved from a leaden-footed toreador’s end.

After managing some five stumbling steps, Mrs. Bosley fainted. Upon regaining consciousness, her daughter was rubbing her wrists and her grandson was crying: “Nan, Nan, are you breathing?” From this point she was helped to the barn some 150 feet away where she remained for half an hour. From here she was assisted to a milk house between the barn and the family dwelling. Finally she was taken home where she was at once put to bed. A doctor was summoned and he found her suffering from “an attack of coronary insufficiency and some heart failure.”

Following ten days’ confinement to bed she was taken to the Greenville Hospital where she remained 17 days. Since then her health has never been good. She suffers sinking spells and blackouts, she is weak and exhausted, she has become a periodical guest of clinics and hospitals. It is the medical opinion of Dr. G.H. Diehl, who treated her from the day of the bull episode, that the angina pectoris, with which she is at present afflicted, was precipitated by “the running, the chasing and the fear that was caused when the bull chased her.” It is his opinion further that Mrs. Bosley “will probably always have angina pectoris and cardiac insufficiency in the future.”

Oliver H. Bosley, husband to Mrs. Mary Bosley, and Mrs. Bosley in her own right, brought suit in trespass against Dale Andrews on three counts: (1) for damages done to Bosley’s crops, (2) for injuries to Mrs. Bosley, and (3) for expenses incurred by Mr. Bosley on account of his wife’s injuries. The plaintiffs recovered a verdict on the first count, but the Trial Judge directed a verdict for the defendant on the second and third counts. The plaintiffs appealed to the Superior

[393 Pa. 172]

Court which affirmed the action of the lower court by a 4 to 3 vote; and the plaintiffs, by obtaining an allocatur, appealed to this Court which has affirmed the decision of the Superior Court.

* * *

What is in [the alleged] Pandora’s box which would apply to cases of this character? The Majority does not specify, but presumably it fears that from Pandora’s box there would issue forth what it recounts in the immediately following sentence, namely: “A plaintiff might be driving her car alertly or with her mind preoccupied, when a sudden or unexpected or exceptionally loud noise of an automobile horn behind or parallel with her car, or a sudden loud and unexpected fire engine bell or siren, or a sudden unexpected frightening buzz-sawing noise, or an unexpected explosion from blasting or dynamiting, or an unexpected nerve-wracking noise produced by riveting on a street, or the shrill and unexpected blast of a train at a spot far from a crossing, or the witnessing of a horrifying accident, which was caused by the negligence of the defendant, or the approach of a car near or over the middle line, even though it is withdrawn to its own side in ample time to avoid an accident, or any one of a dozen other every-day events, can cause or aggravate fright or nervous shock or emotional distress or nervous tension or mental disturbance.”

I would say that a woman who could run the gamut of such a potential succession of blasts, shrills, dynamitings, nerve-wracking rivetings, explosions, buzzings, horn blowings, siren wailings and bell tollings, and emerge alive at the end — a trip more fraught with wild excitement and adventure than Vice President Nixon’s journey through South America — should be compensated

[393 Pa. 175]

in some fashion, if not in a lawsuit, at least by public subscription.

* * *

The Majority’s apprehension that if we should allow the instant case to go to a jury for factual determination, the courts would be engulfed in a tidal wave of lawsuits, is to look upon a raindrop and visualize an inundation.

* * *

The Majority Opinion says that: “The rule is long and well established in Pennsylvania that there can be no recovery of damages for injuries resulting from fright or nervous shock or mental or emotional disturbances or distress, unless they are accompanied by physical injury or physical impact.”

It is true that this Court has consistently denied recovery in the type of cases described in this quotation, but that does not mean that, consonant with law, reason, and justice, it should continue to do so. Stare decisis is the viaduct over which the law travels in transporting the precious cargo of justice. Prudence and a sense of safety dictate that the piers of that viaduct should be examined and tested from time to time to make certain that they are sound, strong and capable of supporting the weight above. One of the piers supposedly upholding the span of non-liability is the case of Huston v. Freemansburg, 212 Pa. 548, cited in the Majority Opinion. A review of that alleged authority will reveal it to be made up of something less than the durable masonry which should be the foundation

[393 Pa. 177]

of any jurisprudential structure in America. Chief Justice MITCHELL, who wrote the opinion in that case, said: “In the last half century the ingenuity of counsel, stimulated by the cupidity of clients and encouraged by the prejudices of juries, has expanded the action for negligence until it overtops all others in frequency and importance, but it is only in the very end of that period that it has been stretched to the effort to cover so intangible, so untrustworthy, so illusory and so speculative a cause of action as mere mental disturbance. It requires but a brief judicial experience to be convinced of the large proportion of exaggeration and even of actual fraud in the ordinary action for physical injuries from negligence, and if we opened the door to this new invention the result would be great danger, if not disaster to the cause of practical justice.”

With all the respect that one naturally holds for the jurists of the past, I cannot generate any veneration for this intemperate outburst. On the contrary, I believe that it should be repudiated and condemned. It amounts to an unjust attack on our whole judicial system. It lays under suspicion every attorney at the bar, casts a shadow on every plaintiff litigant, and shamelessly condemns juries as being motivated by unworthy intentions. Fifty-three years have passed since Mitchell’s philippic, but, despite his dire prophecies, there is no report of disaster in those States which allow recovery for mental and nervous disorders caused by tort, even though unaccompanied by physical injury.

A brief recital of the facts in some of the cases decided by this Court on the subject under discussion will demonstrate that not all the decisions commend themselves to the goddess of Justice.

* * *

Raising the same irrelevant and exaggerated alarm in the Ewing case which the Majority is raising here, the Court said there: “If mere fright, unaccompanied with bodily injury, is a cause of action, the scope of what are known as accident cases will be very greatly enlarged; for, in every case of a collision on a railroad, the passengers, although they may have sustained no bodily harm, will have a cause of action against the company for the `fright’ to which they have been subjected.” But Mrs. Ewing was not a passenger. She was in her own house when the sky began to rain railroad cars.

* * *

It seems to me that it is a violation of the living spirit of the law to adhere to an ancient rule which has no pragmatic application to realities of today. A precedent, in law, in order to be binding, should appeal to logic and a genuine sense of justice. What lends dignity to the law founded on precedent is that, if analyzed, the particularly cited case wields authority by the sheer force of its self-integrated honesty, integrity, and rationale. A precedent can not, and should not, control, if its strength depends alone on the fact that it is old, but may crumble at the slightest probing touch of instinctive reason and natural justice. With such criteria in mind, it is difficult to understand how this Court can allow damages for mental and nervous disability if incurred at the same time that a finger is bruised, but will deny compensation of any kind to the victim who sustains no outer mutilation but will be invalided for life because his inner mechanism has been shattered beyond repair.

 

If, in the Potere case, the jury could trace the connection between the plaintiff’s neurosis and his fear of falling in the tunnel, why may it not trace the connection between Mrs. Bosley’s heart disablement and the fear which overwhelmed her when she expected that any moment she might be gored by the defendant’s bull?

What is the difference, in point of liability, on the part of a railroad company, between a case where a passenger’s arm is cut in a train wreck, and a case where a passenger suffers a broken heart valve as a result of the fear he experienced in expecting death as a car passed over him? Is the negligence and responsibility of the tortfeasor any less marked toward the living man than to the dead man’s family when, after the throb of the overturned locomotive has ceased and the hissing of the punctured air brakes has faded away, there lie on the ground, next to one another, the body of a stark dead passenger and the body of a living passenger, unconscious, but unblemished by a single scratch? To determine liability by what follows rather than by what precedes and accompanies a catastrophe is like concluding that no earthquake has occurred because no one was killed even though the earth gaped and the houses danced as if doing a grisly quadrille.

The crux of this Court’s position is that in cases where the plaintiff suffered no physical laceration, bruise, or abrasion, it is difficult to discover false claims. But is it not equally as difficult to uncover false claims where the mental or nervous disturbance is not physiologically connected with the bruise or laceration? In the Potere case, the plaintiff’s sprained ankle and bruised elbow had nothing to do with his anxiety neurosis. As the jury had to determine whether the disablement in Potere’s nervous system was caused by his fear of falling, could it not in this case have decided whether Mrs. Bosley’s heart disablement was precipitated by her fear of being gored to death? Injury to the heart is a physical injury and not merely a mental or emotional vagary.

The heart has been so excessively the subject of poetic rhapsodizing that it would seem we may have lost sight of the fact that it is objectively a physical organ with mechanical functions as rigidly followed as the metallic movements of the village pump. Mrs. Bosley’s ailment is not to be equated with intangible grieving or sentimental lamenting. Her heart condition is as much a matter of muscle and tissue as traumatic neuritis. However, while Mrs. Bosley’s condition is tangible and palpable, it was caused by a force which did not touch her except through operation of the mind. But that does not mean that the application of the distant force was any less realistic. When a person whitens with fear, blushes with shame, shivers from apprehension,

[393 Pa. 186]

or petrifies with horror, there is no immediate bodily contact with the force which produces those definite physical reactions. But can we say that there is no actual bond between the emotion-creating phenomenon and the organism of the person who responds to the phenomenon? To answer that question in the negative would be to deny the most elementary certainties of human experience.

What provokes laughter? Is laughing not the result of a mental appraisement? But laughter itself is not mental. Abdominal, facial, and labial muscles, vocal cords, larynx and pharynx must all operate and coordinate in order to produce a hearty guffaw. What are tears? Except when they are concomitant with torture or whipping, they are the result purely of intangible thought. One thinks of a lost relative, a departed friend, a tragic event, and a saline solution forms in the eyes. A great deal of physical machinery goes into action to manufacture those drops of water, and it would be sheer perversity to say that there is no connection between the item of grief and the distillation of the resulting tears.

Can laughter and weeping ever be physically injurious? It is no figure of speech that people have actually laughed themselves to death. It is no rhetorical exaggeration to say that people have died of weeping and grief.5 There is, therefore, an objective linking —

[393 Pa. 187]

of cause and effect — between outer phenomenon and physical reaction. Thus, if one can die with laughing, perish with weeping and freeze from fear, how can it be said that there is no tie of contact between the terror of immediate death caused by the charging of a ferocious beast and a heart ailment which contemporaneously occurs and thereafter unceasingly continues?

* * *

The nervous system is peculiarly susceptible to nontangible excitation, and it is not to be denied that the wrecking of nerve ganglia can often be more disabling than the breaking of bones or the tearing of flesh. And where it is definitively established that such injury and suffering were proximately caused by an act of negligence, why should the tortfeasor not be liable in damages? Is law so lacking in the cognizance of natural science that it is incapable of following the fiery trajectory of the intangible bolt of lightning which blasts the towering tree?

[393 Pa. 188]

This Court finds difficulty in attaching liability to the defendant in this case because of the gap between the bull’s nose and Mrs. Bosley’s prostrate body, which measured no more than 10 to 15 feet. If the animal’s charging horns had advanced closer and had just grazed, without seriously harming Mrs. Bosley, then, according to the Potere case, she would be entitled to recover. This all produces in the law a heterogeneous pattern which did not escape Judge ERVIN of the Superior Court, who, in his powerful dissenting opinion when that tribunal passed on this controversy, said: “There can be no doubt that the plaintiff could have recovered if the bull had caught up with her and had butted her, even gently, and there can be no doubt that she would have recovered, not merely for the bruises resulting from being gently butted, but also for any heart condition which resulted from her emotional excitement. Likewise, there can be no doubt that if, in running away from the bull, she had fallen and had damaged her eye by running a weed into it, she could have recovered for that damage. To say that when she runs from the same trespassing bull and falls and suffers a heart attack, she cannot recover for the heart injury is making a distinction which cannot be justified.” To carry Judge ERVIN’S splendid argument a little further, suppose that Mrs. Bosley had already had an injured foot or even a rheumatic leg prior to April 10, 1950, but the strain of running away from the bull aggravated that condition. Would this Court, under its previous rulings, not have to hold, in such a situation, that she would be entitled to recover for what she suffered because of the aggravation of a previous condition? And, in that event, what would be the difference between a previously existing arteriosclerosis and a previously existing rheumatic leg?

[393 Pa. 189]

The paradoxical law which the appellate Courts of Pennsylvania are now laying down, for lower courts to follow, goes even further than either Judge ERVIN or I have indicated. The Majority holds here that Mr. Bosley may not recover for the damages he sustained as the result of the fright and resulting heart disability suffered by his wife. However, under present law, if Mr. Bosley owned a horse which had been frightened, but not physically injured by the defendant’s bull, he could recover for any loss in value of his horse occasioned by the fright. In the case of Gillam v. Hogue, 39 Pa.Super. 547, the plaintiff’s horse was frightened by an automobile on the highway. As a result of the fright it could no longer be safely driven upon public roads and as a consequence its market value depreciated. Gillam sued the automobile owner and obtained a verdict. The defendant appealed and the verdict was affirmed. The Superior Court declared that although there could be no liability where alleged tortfeasors injured human beings, it was quite a different thing where animals were concerned.

Said the Superior Court: “The soundness as well as the necessity of the rule, in the case of human beings, is thus made apparent because the law makes no futile efforts to deal with things which, by their nature, are beyond the grasp of the instrumentalities through which it operates.”

However, the Superior Court went on to say: “If it be a fact, born of the common observation of men in their everyday use of horses, that such an animal, when once subjected to a fright so severe as to cause it to run away, loses a portion of the commercial value it previously possessed, such fact may be proven by evidence just as convincing and satisfactory, as that which establishes any other fact, the existence of which becomes the object of judicial investigation.”

[393 Pa. 190]

But if evidence may be submitted to prove the deterioration of a horse caused by a fright, why may not evidence be accepted with regard to disability sustained by a human being who has suffered extraordinary terror due to the fault of another? And if it be said that a horse dismayed by an automobile will from then on be afraid of automobiles, can it not also be said that, very likely, Mrs. Bosley will from now on be afraid of bulls?

The Majority is loath to reverse in this case because, it says, “The rule is long and well established in Pennsylvania that there can be no recovery of damages for injuries resulting from fright or nervous shock or mental or emotional disturbances or distress, unless they are accompanied by physical injury or physical impact.”

Let us suppose the following situation: Mr. A maliciously designs to visit serious harm upon Mrs. B who is frail, of a highly nervous disposition, and has a weak heart. As Mrs. B is walking along a dark lane at night, Mr. A steps out before her, wearing a lighted hideous mask and makes blood-curdling noises. Mrs. B collapses from fright but sustains no physical injury, nor is there any impact between her and Mr. A. However, she never gets over the shock and is invalided for life. To deny Mrs. B the right to recovery for the harm inflicted upon her in such a case would not only be an injustice but a monstrous wrong.

Let us take another case. Mr. A is a country physician who on an extremely cold night is summoned to attend a patient who lives 12 miles away. He travels in a top buggy drawn by a pair of horses. After treating the sick man he starts back home. Arriving at a railroad crossing he is held up for a period of from 45 to 50 minutes by a freight train. (It is admitted that there was negligence here on the part of the railroad

[393 Pa. 191]

company.) The cold freezes his hands and penetrates his body. When he finally reaches home he is so numb and chilled that he has difficulty in removing his clothing. Articulate rheumatism sets in and he is invalided thereby for a long time. It is quite evident that his illness is the result of the exposure caused by the long wait at the railroad crossing. Does he have a good cause of action against the railroad company? This Court indubitably would say No, but our sister appellate Court has already answered that very question in the affirmative because this case is not, like the previous illustration, a hypothetical one. This is the actual case of Cowdrick v. N.Y. Central R.R. Co., 65 Pa.Super. 416, where a verdict won against the railroad company was affirmed by the Superior Court.

Where was the impact between the railroad company and the physician? Did Boreas reach out with his icy fingers to seize the doctor and dislocate his bones? Did Boreas grasp the doctor’s limbs and work them into articulate rheumatism? And if so, would this Court require the plaintiff to show that Boreas was an agent of the railroad company?

Is not this entire problem simply one of ascertaining effect from cause? Dr. Cowdrick was not struck by a railroad train, he was not bowled over by a piece of metal flung off from a passing locomotive. He was hurt by the artic weather from which he would have been insulated, had it not been for the negligence of the railroad company which exposed him to its frigid temperature for almost an hour. In the case at bar, Mrs. Bosley would not have been hurt had it not been for the negligence of Dale Andrews in exposing her to the bellicosity of his bull, which can be even more damaging than the blast of a winter’s wind.

[393 Pa. 192]

* * *

[T]he plaintiff is not claiming damages because of any mental or nervous ailment. At the risk of tiresome repetition I must repeat that she is asking for a verdict as the result of physical damage done to her heart. The fact that the heart is locked in one’s breast does not make it inaccessible to doctors nor unfelt by its owner. Thus, in considering the nature and the extent of the plaintiff’s disability we are dealing with something very tangible and very concrete.

The heart may be injured by a blow as easily as the lungs, liver, or any other internal organ. And that blow may be administered through the application of force against the outer walls or through the channels of the senses. It is a matter of common knowledge that persons afflicted with certain ailments must avoid excitement, not only the excitement of physical movement but that which is felt through the senses of sight, hearing, and possibly smell. The interlinking between sensory excitation and physiological reaction is such a historical, demonstrable, and everyday reality that to dwell on it at length would be like carrying the proverbial coals to Newcastle or crocodiles to the Nile.

Although afflicted with arteriosclerosis, Mrs. Bosley could have relished life in all its beneficial fullness. By observing whatever limitations doctors might have placed on her activities, there is no reason why she could not have looked forward to a reasonably long existence, enjoying with full flavor the many sweetnesses that normal living affords. The books are filled with cases of people who, because of an arterial burden, may not run as fast as athletes run for a train, bus, or street car, but who adjust themselves admirably to a less rapid pace and find more time to breathe in the fragrance of the garden of good, wholesome living. Mrs.

[393 Pa. 194]

Bosley had every reason to look forward to that prospect.

A trespasser came to her home and struck her down. The bull belonging to the defendant was as much a trespasser and invader as a robber breaking through a window at night. As soon as the bull crossed the frontiers of the Bosley farm, its owner, Dale Andrews, was guilty of a trespass. Whatever damage succeeded that invasion, and because of that invasion, was Dale Andrews’ responsibility. Under the law of quare clausum fregit, Andrew’s liability was almost automatic.

Since the doctors have stated categorically that Mrs. Bosley’s heart disability is the direct result of the bull’s aggression, and since it is conceded that the bull’s presence on the Bosley property constitutes an almost wanton trespass, it is inexplicable how this Court can legally dispose of a controversy which is peculiarly one for a jury’s determination. The explanation offered in the Majority Opinion does not explain. To say that to grant what the law allows in this case might create an untoward situation in other cases is like saying that the fountain of justice should be boarded up because of the possibility that someone might drown in its salutary waters.

I would have the fountain flowing at all times, assured that the established safeguards of the law will keep away those who would defile its pure and refreshing essence just as those same safeguards are prepared, if not shackled, to hold responsible those who allow ferocious animals to roam at large to the hurt and grievous loss of the innocent and the unsuspecting, in the tranquil enjoyment of their homes, their gardens, and the prospect of a safe and cloudless future.

In recapitulation I wish to go on record that the policy of non-liability announced by the Majority in this type of case is insupportable in law, logic, and

[393 Pa. 195]

elementary justice — and I shall continue to dissent from it until the cows come home.

FootNotes

* * *

5. King Richard II, Act. III, Scene iii: “Aumerle, thou weep’st, my tender-hearted cousin! We’ll make foul weather with despised tears; Our sighs and they shall lodge the summer corn, And make a dearth in this revolting land. Or shall we play the wanton with our woes, And make some pretty match with shedding tears? As thus, to drop them still upon one place, Till they have fretted us a pair of graves Within the earth; and, therein laid — these lies Two kinsmen digg’d their graves with weeping eyes.”

 

 

 

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Published in: on November 30, 2015 at 2:46 pm  Leave a Comment  

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