Roa v. Puig

delivered the opinion of the court.

The appellant herein, Concepción Puig', is the owner of House No. 9 on San Justo Street in the city of San Juan. Some years ago she rented it to Manuel Soto, who had in his service the respondent, Elisa Boa. One-of the defendants, Dr. Arturo Fernández Sanjurjo, is the agent of the owner of the house and has no further interest- in the matter as he was exonerated by the judgment of the court below, and no appeal was taken from that decision. • ■

This action originated by virtue of a complaint filed by Elisa Boa against Concepción Puig and Arturo Fernández *368Sanjurjo claiming the snm of $5,000 for damages, because the defendant Mrs. Concepción Puig, being the owner of house number 9 on San Justo Street in this city, and the other defendant, Fernández Sanjurjo, her agent, under the obliga - tion of collecting the rents thereof and of keeping said house in good condition, the aforesaid Fernández Sanjurjo knowing that the ceilings of said house were entirely in ruins, and, by reason of the negligence of said defendants in making repairs thereof, on April 14, 1911, a part of the ceiling of one of the rooms in the aforesaid house fell down producing such a noise that Elisa Roa, who was at the time living in said house, received a fright of such a nature that it resulted in a miscarriage of a-female foetus and the consequent physical and mental pain and distress.

In answer to the complaint the defendants denied all the facts alleged and a trial of the ease ensued in April, 1912. On June 10 following a judgment was rendered against the defendant, Concepción Puig, for five thousand dollars ($5,000), the amount claimed, and costs, frofii which this appeal was duly taken. The other defendant was discharged from all liability. The appellants’ counsel assigns errors, alleged to have been committed on the trial, as follows:

“1. The court erred in considering that it was fully shown by the evidence which was introduced at the trial that the defendant,' Concepción Puig, did not make the necessary repairs in house No. 9, on San Justo Street, to prevent the falling of the ceiling in one of the rooms thereof, which occurred on April 19, 1911.

“2. The court erred in considering the negligence of the defendant,'in finding that previously to April 14, 1911 — that is, about the month of September, 1910, the loosening of another beam had occurred in the ceiling of said room.

“3. The court erred, and committed a substantial and fundamental error, in considering, with regard to the' accident that occurred in the house in question in the month of September, 1910, that another beam had. been unfastened, assuming *369t]ierebjr, at the same time and simultaneously, that the beam referred to had been supported by means of another one that was put in place and which prevented the falling thereof.

“4. The court erred in considering* that even though the defendant, as a result of the accident which occurred in September, 1910, had made an examination of the remaining tim-berwork to ascertain for herself the condition thereof, such examination and inspection were not carried out with the care and diligence which was required under the circumstances, nor were the same made by competent persons who were qualified to give an opinion as to the repairs that should have been made.

“5. The court erred in finding, from the effect of the evidence, that the falling of the beam which took place on April 14, 1911, had caused a great fright to the plaintiff, and that a miscarriage ensued in consequence thereof, and a condition of melancholy and nervous prostration was caused, which operated upon her physical and mental health.

' “6. The court erred in considering, in the present case,any liability for damages as provided for in sections 39.6, 1803 and 1808 of the Revised Civil Code; inasmuch as there does not exist in this case any immediate and natural rélation of cause and effect between the negligent act and the damagé which is alleged to have been caused, nor any of the essential elements contained in said sections.

“7. The court erred in granting the sum of-five thousand dollars ($5,000) for damages sustained by the plaintiff without sufficiently specifying the same and notwithstanding the fact that they had not been ascertained.”

Let us examine these assignments. It is alleged and proven that on April 14, 1911, a beam in one of the rooms-of the dwelling occupied by the plaintiff fell, making a considerable noise; on or about the 22d- day -of said month the plaintiff, who was pregnant at the time, .suffered a miscarriage, being delivered of a female foetus about six- months advanced toward maturity; and that-medical attendance was.mecessary *370and a surgical operation ensued, the plaintiff being affected thereby in her temperament, all of which was alleged to have been produced by the nervous shock caused by the fright which she experienced from the falling of the beam.

The first question involved herein and which we have to consider is one of fact, which must be determined from an examination of the evidence disclosed in the record. It is, was the falling of the beam the proximate cause of the injury suffered by the plaintiff? Or, in other words, was the resulting miscarriage too remote to be chargeable to the 'negligence of the defendant?

The .trial court in its opinion finds substantially the following facts, numbered 1, 2 and 3:

1. That the plaintiff has shown, by the evidence introduced at the trial, that the defendant, Concepción Puig, who was the owner of house number 9 on San Justo Street, did not take the necessary steps to avoid the falling of the ceiling of one of the rooms, which occurred on April 14, 1911; and with the purpose of showing the negligence' of said defendant it was likewise shown that prior to that date the loosening' of a beam in the same room took place, which was thereupon supported by putting and adjusting to it another beam thus avoiding its falling;- that no examination was made in that apartment as to the condition of the remaining beams, which should have been done by a diligent and careful owner, with the purpose of satisfying himself of the conditions of said beams, because although it appears from the evidence introduced by the defendant that such an examination was made, it was not carried out with all the diligence and caré required by the circumstances, and further, that the same was made by a person who lacked the necessary qualifications to understand the true condition to give a satisfactory opinion as to the repairs which should have been executed, or of the measures of precaution that should have been taken to avoid the unfortunate accident that took place -shortly thereafter.

2. That the negligence and lack of care of the owner of *371the house, who, notwithstanding the fact that she had already been warned by a similar accident, neglected to take the necessary measures of precaution which are expressly required by the law, under the Civil Code, for the purpose of avoiding a repetition of the accident, is a matter which cannot he denied. If the owner had not been negligent and careless, and had foreseen what might have happened by reason of her negligence, certainly no damages would have occurred. And no allegation could be presented here showing that the persons living in said house failed to give to the owner the proper notification as to the matter, because from the evidence introduced at the trial it was shown that the bad condition of said beams was a matter which could not be reached merely by the sight of any observer; or as it has been said by an eminent commentator on our code it would be against all idea of justice to exonerate the owner from this liability simply by reason of the fact that he had not been informed at the proper time by a third person of the apparent danger of the falling of the ceiling, where, according to the law, he was required to make repairs or destroy the same, especially in order, that such an imminent danger should not be changed into a serious accident to the prejudice of other persons.

3. That it was sufficiently shown at the trial that Mrs. Roa, the plaintiff herein, was pregnant .when the accident occurred; that she received a great fright, inasmuch as she thought that one of her children, who was in the room where the accident happened, had been killed; that on account of said fright a miscarriage ensued, which was originated and caused by the fright and said accident; that subsequently to the miscarriage it was necessary that a surgical operation should be performed upon her; that as a result of said fright a condition of melancholy and nervous' prostration followed to the detriment of her physical and mental health from which she is- still suffering, although the extent thereof cannot be determined; that such a nervous condition has-produced an entire change-in the temperament and. character of Mrs. Eoa,-.-who is now ill-*372humored, forgetful and choleric, while previously she was affectionate and amiable, and to such an extent has this change been effected upon her character that, according to the statements made by one of the witnesses, who was bound to her by the relation of master and servant, he declared that “subsequently to the occurrence nobody could bear her. ’ ’

The appellant contends that these findings are not warranted by the evidence which was introduced on the trial and appears in the statements of facts. We must then examine the record in regard thereto. Perhaps it would be as well to take up these matters in the order in which they are presented by the several assignments of error heretofore set out.

(a) The first assignment refers to the finding made by the trial court as to the negligence of the appellant in not making the necessary repairs to the house occupied by the respondent, so as to prevent the falling of the beam therein, which occurred on April 14,. 1911. The record plainly shows that the necessary repairs were not made, and sufficiently indicates that it was on this account that the beam became loosened, probably by the usual rains, and thereby fell from it's place in the wall. The statute, section 398 of the Civil Code, excuses the owner from liability for such accidents in cases of vis major, but we cannot consider this as falling under that exception. If this accident had been caused by an earthquake' or a stroke of lightning, or other such unusual natural phenomenon, the appellant would have been excused from liability; but for the usual results attending the tropical weather, to which we are subject in this climate, no exception is made and the liability of the owner of the property results. Nor can it be alleged by the owner that she was not notified by the tenant' of the condition of the house. Such notice is not required by the law and in this case the bad condition of the beams was not perceptible to the eye of any ordinary observer. The agent of the owner, considering the accident which took place in September of the previous year, should have been on the alert and have given the necessary instruction in due time so' *373that the proper examination as to the condition of the beams of the ceiling could have been made, in order to provide for all the repairs required by the circumstances, thus protecting his principal from any charge of fault or negligence. Therefore, we must arrive at the conclusion that the first assignment of error which has been presented by the appellant is not well founded.

(5) The second and third errors, complained of by the appellant’s counsel, are to-the effect that the trial court, in arriving at the negligence of the owner, took into consideration the fact that previously to April 14, 1911, the day on which the beam, which is alleged to have caused damage, fell, the loosening of another beam had occurred in the ceiling ch the said room; that this occurrence took place in the month of September, 1910. Some argument is made in regard to the question of whether or not the two beams were located in the same room or not, but it is evident that if they were not in the same room, they were in adjoining rooms; so that matter is immaterial. The fact of the previous accident occurring some six or seven months before, is considered by the trial court merely as an incident showing that the defendant should have been upon her guard, and as a kind of' a warning or indication that the house was old and .in bad repair and needed the attention of the owner or her authorized agent. For'this' purpose we think the incident occurring in September, 1910, was a matter which could be taken into consideration by the trial court in making up its judgment.

(c) The fourth error complained of by the appellant relates to the examination made by the agents of the owner as a result of the accident which occurred,in September; the trial court finding that such examination and inspection were not practiced with the care and diligence which the circumstances of the case required, and were not made by persons competent to do such business and to give an opinion as to what repairs were necessary to be made upon the house. It appears to ns that the trial court correctly summarized the *374evidence on this question. Examinations were made shortly after the accident in September, but so far as the record shows, they were not as thorough as they might have been and were performed only by ordinary mechanics who did not exhibit any special skill in the matter, and it has afterwards transpired that when the house had been given up by the tenant, it was found to be necessary to make repairs in the entire timberwork, and this was caused to be done by the agent of the appellant a few months afterwards. The evidence of some of the witnesses in regard to the condition of the beams is very strong on the points of their' being utterly rotten and unfit for the use to which they were applied. We cannot regard the finding of the court in this matter to be incorrect.

(d) The fifth and sixth assignments of error relate to the finding of fact made by the trial court to the effect that the falling of the beam, which took place on G-ood Friday, 1911, caused a great fright to the plaintiff and resulted .in a miscarriage, which she suffered a few days thereafter, and the consequent condition of melancholy and nervous prostration, which operated detrimentally upon her physical and mental health, and in the application of the law as found in sections 1803 and 1808 of the Civil Code; the appellant contending that there does not exist in this case any immediate and natural relation, of cause and effect between the wrongful act of neglect alleged in the complaint and the damage which it is contended was caused thereby, denying also the existence of any of the essential elements of damage as contained in the statutes. It is a well-established principle that when physical injury such as miscarriage flows directly from the .extreme fright or shock caused by the negligence of the defendant who owes the duty of care to the injured person, such fright or shock is a link in the chain of presumed causation as efficient as physical impact from which like results might arise. Pankopf v. Hinkley, 24 L. R. A. (N. S.), 1161. It is held in many cases that mere fright caused by another’s negligence without any physical consequence cannot be made the basis of a claim *375for damages. For instance, where a woman, while passing a pot of molten lead, was struck by four or five drops of the metal, which exploded, causing a slight injury hut a radical impairment of her nervous system, general health, and bodily organs, resulting in three successive miscarriages, these were not the ordinary and natural results of the accident for which damages could he recovered. Hack v. Dady, 118 N. Y. Supp., 906.

But the approved doctrine now generally held by the most advanced cases is that one who causes nervous excitement in a pregnant woman, for instance, by his wrongful trespass upon her home, to such an extent as to cause her miscarriage, is liable to her for the- bodily pain and suffering endured in direct line of causation from the wrongful act, although no physical damage is done to her person. Engle v. Simmons, 7 L. R. A. (N. S.), 96.

The same doctrine is held in the case of Simone v. Rhode Island Co., 9 L. R. A. (N. S.), 740, and in Green v. Shoemaker, 23 L. R. A. (N. S.), 667; but in all such cases, the fright, which is held to be the proximate cause of the accident, arises from the incident itself, and by the application thereof directly to the person frightened, without the intervention of any third person or thing in the chain of causation. It is different where the fright of which the plaintiff complains was caused on account of the danger of some third person and not of personal danger which the plaintiff herself might have apprehended. In the ease at bar, the fright causing the damage of which the plaintiff is the alleged victim, was not the proximate cause of the injury, inasmuch as it operated through a third person, to wit, the child of the plaintiff, who, at the time the beam fell causing the noise, was not in the room with her mother, and the sound of the falling of the beam did not frighten the plaintiff as boding injury to herself, but only alarmed her for the safety of the child. The negligence of the defendant in failing to repair the house, whereby the beam was caused to fall, making a noise which, taken in connection *376with the absence of the child from its mother’s presence, alarmed her for its safety, thus bringing on a nervous condition which eventuated in a miscarriage, is too remotely connected with the injuries resulting therefrom to attach liability to the owner of the house, residing in Spain, who is charged with negligence in failing to make the necessary repairs. Huston v. Borough of Freemansburg, 3 L. R. A. (N. S.), 49, and note.

While the evidence as to the fright is not so conclusive as it should be inasmuch as the only .testimony given in regard to the matter was but of the cook employed in the house, who was the only eye-witness that was there when the accident occurred, and saw the plaintiff immediately after the falling of the beam, the statements made by the expert physicians who afterwards examined the plaintiff being entirely hearsay as to the fright; we may admit, however, that plaintiff really received a fright on account of the danger which occurred to her child and not that to which she herself was exposed, and that the falling of the beam was the remote cause of said fright; yet the immediate and sole relation of cause and effect between the falling of the beam and the miscarriage which ensued to the plaintiff does not exist between those facts so closely connected one with the other as to base upon the same toy liability on the part of the defendant, who is the owner of the house. We do not think that there existed any necessary relation of cause and effect between the falling of the beam and the miscarriage of the plaintiff clearly connecting these facts, which is an indispensable requirement to fixing any liability upon the defendant. Considering the time which elapsed between the falling of the beam and the date of the miscarriage of the plaintiff, we are not satisfied that such miscarriage was necessarily the result of the fright and not caused by some other natural or fortuitous accident occurring independently of the falling of the beam.

' (e)The seventh error complained of by the appellant has relation to the amount of damages found by the trial court, *377which is the sum of $5,000, being the total amount claimed by the plaintiff in her complaint. In regard to the measure of actual damages, it may be observed that they should be awarded as a compensation to the plaintiff for any injury actually suffered by her from the acts or the negligence of the defendant; and, in amount, they should be exactly commensurate with the injuries sustained by her, whether in her person or her property, and neither less nor more than the amount proven. 1 Street on Foundation of Legal Liability, 479; Greenleaf on Evidence (14th Ed.), section 253. The amount claimed for medical attendance in this case is remarkably large, amounting to $1,800. The plaintiff was sick, as the evidence shows, for about three months, and two physicians were in attendance for at least a part of the time. The evidence does not disclose that these fees, claimed by the physicians, were actually paid; but, in a general way, it may be inferred that such is the claim made by the plaintiff. In cases of damages for personal injuries where, as an item thereof, doctors’ bills are set out, it is necessary to prove, first, the actual payment by the plaintiff of the bills, or that the plaintiff is legally bound to pay the same and that the amount thereof is fair, just and correct; and, second, that the medical attendance was necessary on account of the injuries sustained. MacDonald v. I. C. R. Co., 55 N. W. Rep., 102; Omaha St. R. Co. v. Emminger, 77 N. W. Rep., 675; Indianapolis v. Gaston, 58 Ind., 224; Bowsher v. C. B. & Q. R. Co., 84 N. W. Rep., 958; Abbitt v. St. Louis Tr. Co., 79 S. W. Rep., 496; Heater v. D. L. & W. R. Co., 85 N. Y. Supp., 524; San Antonio St. Ry. Co. v. Muth, 7 Tex. Civ. App., 443; 13 Cyc., 140; 1 Street F. L. L., 149-159.

A large item is claimed also by the plaintiff for extra food of fine quality and for champagne, which, it is alleged, was necessary in her delicate condition. There is also evidence to the effect that such food was not necessary and that champagne was injurious in such cases. Taking all the evidence together, it seems to us that the judgment is entirely exces*378sive, even bad the liability of tbe defendant been otherwise properly proven.

Inasmuch as the injuries complained of are not shown to have been proximately caused by the negligence of the defendant, the judgment rendered by the district court, on the tenth, day of June, 1912, should be reversed, and judgment herein rendered for the defendant, without costs to either party.

Reversed.