Clough v. Steen

STEPHENS, P. J.

Plaintiff, with her husband and minor child, was involved in an accident with defendant’s auto

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mobile, in which she was injured and her son was killed. She recovered judgment for damages from which defendant appeals. No question as to negligence or contributory negligence is raised, the sole question on appeal being one of damages.

By reason of the accident plaintiff received certain lacerations and contusions on her body. These she set out in her complaint, and then alleged that the knowledge of the tragic death of her son “immediately threw her into a state of profound shock” which caused mental and physical disorders for which she sought damages. The court found (par. IY) that plaintiff was physically injured by the accident and (YI) that the knowledge of her son’s death threw plaintiff into a state of profound shock, mental suffering and sickness; that plaintiff’s condition causes her mental and nervous suffering and (YII) that by reason of the injuries set out in paragraphs IY and YI plaintiff has suffered and now suffers shaking, mental and nervous suffering and a palsy and hysterical condition. Thereupon judgment was rendered for plaintiff in the sum of $20,000.

The father of said child had recovered damages under section 376 of the Code of Civil Procedure for the latter’s death and no question is here presented growing out of the right of action given by that section.

The trial court erroneously included in the judgment an amount which represented damages for the grief and shock and consequent damage suffered by plaintiff when she learned of the death of her child. Por this injury she may not recover damages from defendant, although she is entitled to recover for her own mental and physical injuries proximately caused by the accident. The award was made in one entire sum, and since it is not separable, the cause must be remanded for retrial on the issue of damages.

Respondent relies on

Lindley

v.

Knowlton,

179 Cal. 298 [176 Pac. 440], where plaintiff suffered physical injury due to fright while repelling an attack by a chimpanzee on plaintiff and her children, and on