Appeal by plaintiff and defendant from Lupton, Judge. Judgment entered 16 December 1980 in Superior Court, Forsyth County. Heard in the Court of Appeals 14 January 1982.
Becton, Judge. Judge Hedrick and Judge Martin (Harry C.) concur.
Defendant contends that the trial court erred in awarding attorney's fees and expert witness fees to plaintiff. On his cross-appeal, plaintiff contends that the trial court erred (1) in excluding testimony and medical bills from plaintiff's psychiatrist; (2) in not submitting an issue of punitive damages to the jury; and (3) in excluding testimony about plaintiff's physical and mental condition before and after the accident. Because defendant's issues can be summarily addressed, we discuss plaintiff's issues first.
Relying on Williamson v. Bennett, 251 N.C. 498, 112 S.E.2d 48 (1960), the trial court excluded the testimony of Dr. Selwyn
Rose, plaintiff's psychiatrist, concerning the physical and psychological injuries received by plaintiff in the automobile accident. The plaintiff contends the trial court erred in doing so, citing the more recent case of Wesley v. Greyhound Lines, Inc., 47 N.C. App. 680, 268 S.E.2d 855 (1980), disc. review denied 301 N.C. 239, 283 S.E.2d 136 (1980). We agree with plaintiff.
Historically, when there was no actual physical impact or physical injury, courts "displayed considerable reluctance to extend recovery for mental distress and nervous disorders resulting from shock and fright to situations involving ordinary negligence." 251 N.C. at 504, 112 S.E.2d at 52. In explaining this reluctance, Professor Prosser says: "The temporary emotion of fright, so far from serious that it does no physical harm, is so evanescent a thing, so easily counterfeited, and usually so trivial, that the courts have been quite unwilling to protect the plaintiff against mere negligence. . . ." W. Prosser, The Law of Torts, § 54 at 329 (4th ed. 1971). Mental distress and nervous disorder cases have turned on their facts, however. When there is some indicia of trustworthiness, some guarantee that the claim is not spurious, courts have allowed recovery for mental and emotional disturbance. In Williamson our Supreme Court said: "It is almost the universal opinion that recovery may be had for mental or emotional disturbance in ordinary negligence cases where, coincident in time and place with the occurrence producing the mental stress, some actual physical impact or genuine physical injury also resulted directly from defendant's negligence." 251 N.C. 503, 112 S.E.2d at 52.
Although reversing the judgment awarding Williamson damages, the Williamson Court said: "[t]he case at bar is factually unique even in its own category -- cases of fright, anxiety, and other emotional stress, unaccompanied by actual physical injury." 251 N.C. at 507, 112 S.E.2d at 54. On the basis of the following facts, the Williamson Court was impelled to its conclusion that plaintiff failed to show that defendant's negligence was the cause which, "'in natural and continuous sequence, unbroken by any new and independent cause,'" id., produced the plaintiff's injury:
Plaintiff did not testify and does not now contend that she was frightened by the collision between her automobile and the defendant's sportscar. Neither does she assert that
her anxiety was occasioned by the grinding sound along the left side of her car. . . . When the collision occurred she envisioned the possibility that she had collided with a non-existent child on an imaginary bicycle. In short, she was not frightened by what actually happened but by what might have happened. It was not the collision that caused her anxiety, it was something that did not exist at all, a phantom child on a non-existent bicycle.
Twenty years after Williamson this Court considered the application of Williamson to Wesley v. Greyhound, a case similar to the case sub judice. In Wesley, this Court stated:
Although the Court denied recovery in Williamson, it did so because the plaintiff's injury was thought not to have been the proximate result of the defendant's acts, not because of a disavowal of the universal rule. That that was the case is evidenced by reiteration of the rule in King v. Higgins, 272 N.C. 267, 158 S.E.2d 67 (1967). It is significant that under the rule, a plaintiff may recover if there is "some actual physical impact or genuine physical injury." This alternative mode of proof justifying recovery is important because of the difficulty of defining "physical injury." See Kimberly v. Howland, 143 N.C. 398, 55 S.E. 778 (1906). Under whichever test used, we have no difficulty in finding that plaintiff has suffered a compensable injury.
47 N.C. App. at 690, 268 S.E.2d at 862.
Wesley involved the claim of a Greyhound Bus Lines passenger who was sexually assaulted as she waited in the lounge of the ladies' rest room for her ride. In Wesley, this Court said:
Plaintiff presented evidence that since the sexual assault, she has had difficulty sleeping, has had nightmares, and has awakened at night afraid that some other person was in the room threatening to harm her. . . . When viewed properly, plaintiff's evidence indicates that she has suffered mental trauma or emotional disturbance.
In the case sub judice the evidence indicates that there was physical impact and physical and mental injury suffered by plaintiff as a result of the negligent acts of the defendant. On voir dire, Dr. Rose testified that plaintiff suffered from anxiety neurosis, extreme nervousness, fear, apprehension, excessive perspiration, dizziness, insomnia, irritability, and loss of appetite.
Dr. Rose further testified:
It was my diagnosis that Mr. Craven had an anxiety neurosis, that is, he had a state of anxiety, nervousness or tension, which was disabling and which prevented him from functioning . . . . He also had obsessive feelings about death. . . . He had some memory deficit. He had a poor short-term recall. It didn't affect long-term memory, but when the level of anxiety goes up, ideas and thoughts that go into the person's head don't get lodged well or they are lost or they are not heard. He complained of nervous ...