# Bass v. Nooney Co.

> Supreme Court of Missouri · February 23, 1983 · 646 S.W.2d 765

URL: https://www.frixlaw.com/law-library/cases/9646424

## Case

- **Full name:** Collette BASS, Appellant, v. NOONEY COMPANY, a Corporation, and Otis Elevator Company, a Corporation, Respondents
- **Court:** Supreme Court of Missouri
- **Decided:** February 23, 1983
- **Citations:** 646 S.W.2d 765; 1983 Mo. LEXIS 332
- **Precedential status:** Published
- **Opinion:** Dissent by Welliver
- **Judges:** Solbert M. Wasserstrom
- **Cited by:** 151 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Limited by Jarrett v. Jones, 2008 Mo. LEXIS 142 (2008).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9646424

## How later opinions describe it (automated extraction)

- applying the doctrine of res ipsa loquitur to case involving mental distress resulting from being trapped in a stalled elevator, and rejecting the requirement of physical injury to recover for negligent infliction of emotional distress

## Opinion text

WELLIVER, Judge,
dissenting.
I respectfully dissent. Nothing in the facts of this case either compels or justifies our changing the law of this state in order to permit this plaintiff a possible recovery. If we are to recognize “injury without impact,” we must also recognize that this flood of cases must be added to the already overcrowded docket of our courts or that we must add more courts; that the potential judgments must be added to the already oppressively high liability insurance premiums of this state; and every- business being invited to locate in this state must consider this as one more factor in arriving at the cost of doing business in Missouri.
I believe that the time has come for the judiciary to exercise the same fiscal and economic responsibility that we would ask of the other branches of our government. See Wolfgeher v. Wagner Cartage Service, 646 S.W.2d 781, 786 (Mo. banc 1983) (Welliver, J. dissenting), decided today.
The prior opinion of the Missouri Court of Appeals, Eastern District, clearly and precisely states and follows the law of this state as it presently exists. The case was not transferred because of its failure to follow the law, but because of the desire of members of this Court to change the law. We should adopt the Missouri Court of Appeals opinion, attached to this dissent as Appendix A, as the opinion of this Court.
APPENDIX A
The opinion of the Missouri Court of Appeals, Eastern District, follows without use of quotation marks.
NORWIN D. HOUSER, Senior Judge.
This is a suit for damages for fright and mental distress unaccompanied by traumatic physical injury. The trial court sustained *775 a motion for a directed verdict for defendants at the close of plaintiff’s case. Plaintiff has appealed. We affirm.
Collette Bass alleged in her petition that as a business invitee in Pierre Laclede Building in Clayton she entered an elevator owned by defendant Nooney Company and maintained by defendant Otis Elevator Company; that while attempting to ascend from the twentieth floor to the twenty-third floor, the elevator became stuck, thereby imprisoning her, causing her to sustain a severe anxiety reaction with hyperventilation syndrome, traumatic neurosis, and shock to her nervous and glandular systems.
Plaintiff’s testimony: She entered the elevator and punched the button for the twenty-third floor. On the way up she heard “sort of a grinding sound” and the elevator stopped. It came to a “general” stop. There was nothing about the way the elevator came to a stop (apart from the grinding sound) that was any different from the other times she had ridden that elevator or other elevators in the building. Plaintiff was not thrown around in the elevator. She did not hit the side of the elevator or the door. Plaintiff waited a few minutes, thinking “it would resume its route.” After about five to ten minutes she pushed the emergency bell and after a few minutes pushed it again. She could hear ringing, but there was no answer on the intercom. She pushed the emergency bell again, without any response. She called through the closed elevator door to people she heard in the hallway. No one could hear her, so she started hitting on the door and calling through the door, hoping someone would hear. Finally a man’s voice asked, “Who is it?” Plaintiff gave her name and the name of her employer and told the man she had been stuck in there for several minutes. The man asked if she was alone and said, “Don’t panic.” Plaintiff asked him to notify her supervisor and contact maintenance. At that time plaintiff had been alone on the elevator for about fifteen or twenty minutes. Plaintiff pushed the emergency bell again. After ten minutes plaintiff’s supervisor came and engaged in conversation about her condition. Plaintiff answered that she was all right but getting dizzy. A man, identified only as “Don,” promised to contact someone and do what he could. Plaintiff walked to the “end” of the elevator and stood in a corner. She pushed the emergency bell again and again. She was getting warm. She “slid down to the floor” and started “feeling strange ... feeling funny . . . light-headed ... like [she] was getting ready to float, just real strange.”
On the panel inside the elevator there were buttons marked “Door Open,” “Door Close,” “Alarm Bell,” “Emergency Stop,” and “Emergency Bell.” Plaintiff did not push the “Door Open” or any button other than the twenty-third floor button and the emergency bell at any time she was in the elevator.
When maintenance arrived plaintiff was instructed to try to pull the door open with her two fingers while people on the outside did the same. (There were two doors that closed together and opened in the middle.) Eventually the doors opened. Plaintiff, with assistance, stepped out of the elevator onto the twenty-first floor. The elevator had stopped with the floor of the elevator about one foot above the twenty-first floor. Plaintiff boarded the elevator at about 10:45 a.m. When she “finally got out it was about a quarter to twelve.”
Plaintiff was taken to the ladies’ room. Her supervisor put a cold towel on her head and face. Plaintiff thought she “was okay but [she] felt dizzy.” She was allowed to stay at her home station the rest of the day. She did not use the elevator any more, except at lunch time. A co-worker took her home after work. On the way she “starting drifting towards the [car] door and had to be straightened up.” She felt “woozy.” Next day she went to Jewish Hospital. Doctors in the emergency room advised admission to the hospital, where she was a patient in the psychiatric ward from Wednesday through Monday, taking sedatives and resting under the care of a psychiatrist. Upon examination of plaintiff, the *776 psychiatrist found some slurring of speech, her palms were very wet, she seemed to be hyperventilating (breathing more than usual), and her pupils were dilated. He diagnosed her case as a severe anxiety reaction and gave his medical opinion that the elevator incident caused the anxiety reaction. Plaintiff was off work from April 7 to May 2.
Plaintiff was under stress before this incident. She had been separated from her husband for fifteen years and was in the process of getting a divorce. She had the care of her three teenage children, who were living with her. She had no help in taking care of them. Her mother had suffered a stroke, and plaintiff was helping care for her.
Appellant’s first point: The court erred in directing a verdict against plaintiff because she made a submissible case under the doctrine of res ipsa loquitur. It is not necessary to rule this point since plaintiff failed to make a submissible case under the physical injury rule. This failure is fatal to her case regardless of whether she proved negligence.
Appellant argues that she made a submis-sible case under the physical injury rule by virtue of her acts of physically pushing the emergency bell; physically hitting on the door to attract attention, and pulling on the door with two fingers in an attempt to open it. This argument in untenable. Under the physical injury rule, “[t]o sustain recovery for emotional distress and bodily harm resulting therefrom, plaintiff must suffer a traumatic physical injury through the fault of defendant, unless there is extreme and outrageous conduct on the part of the defendant intentionally or recklessly causing the emotional distress.” Williams v. School District, 447 S.W.2d 256, 266 (Mo.1969). There is no claim and no basis for a claim of outrageous, intentional, or reckless conduct on the part of defendants.
The fault of which plaintiff complains is that the elevator “stuck” — that it stopped. The evidence is that it came to a “general” stop, no different from other times. The word “general” as used in this context, means common or typical and denotes that which is usual or often met with. Webster’s Third New International Dictionary 944 (Unabridged Ed.1976). Plaintiff conceded that she was not thrown about and that she did not hit the sides or door of the elevator. There is no evidence or contention that the elevator stopped suddenly or violently; that there was any jerk, jolt, shaking, or unusual movement; that the stop caused plaintiff to fall to the floor; or that she sustained trauma of any kind to her body because of the stopping of the elevator. Plaintiff’s slight, trivial, minor physical contacts with the elevator when she pushed the emergency bell button and tried to open the door with her hands and fingers were insufficient to constitute the “traumatic physical injury” required by the Williams case and its progenitors to activate the physical injury rule. Furthermore, pushing the bell and hitting on the door were the conscious, deliberate acts of plaintiff associated with her state of mind— based on her own mental reaction — contacts that did not take place because of any actions of defendants. In Spohn v. Missouri Pacific Railway, 116 Mo. 617 , 22 S.W. 690 (1893), a passenger overheard a conversation between the conductor and another passenger relating to tying up and robbing someone. Imagining that he was the intended victim the passenger, fearing for his safety, attempted to alight from the moving train, thereby sustaining serious personal injuries. He sued for damages for physical and mental anguish. On appeal, the Supreme Court reversed a judgment for plaintiff, holding that plaintiff’s physical injuries were the result of his own imagined fear and his attempt to save himself and that it was plaintiff’s own state of mind, imagination or paranoia, and not defendant’s actions, that caused his fear and injuries. In Francis v. St. Louis Transfer Co., 5 Mo.App. 7 (1877), the court denied plaintiff damages for injuries sustained and illness contracted when she walked home from the place defendant put her off the wagon, on the ground that it was her own refusal to ride a nearby street car that occasioned her difficulties.
*777 Nor was there any showing that plaintiff’s hands or fingers were injured by her pushing the bell button, hitting and prying on the door, or that there was any nexus between those contacts with the elevator and plaintiff’s subsequent anxiety reaction. In State ex rel. Renz v. Dickens, 95 S.W.2d 847 (Mo.App.1936), the appellate court affirmed an order sustaining a demurrer to plaintiff’s evidence on the ground that there was no evidence “that [plaintiff] fell down or that she received a bruise, a scratch, a bump or any other kind of physical wound or injury by her husband pushing her, which would afford a basis for an inference to account for the condition of her health.” Id. at 851 . There must not only be a traumatic physical injury resulting from defendant’s negligence (and not resulting from plaintiff’s own actions), but also the traumatic injury must be the proximate cause of the mental distress suffered by the plaintiff, under the Missouri decisions. In Chawkley v. Wabash Railway, 317 Mo. 782 , 297 S.W. 20 (banc 1927), plaintiff was riding in an automobile with her family when a train collided with the car, injuring her and killing her husband and children. She suffered personal injuries and great emotional distress at the sight of the bodies of her husband and children. Reversing a judgment for plaintiff for error in admission of evidence of mental and physical injuries caused by the sight of the bodies of the members of her family, the Court held that proximate cause is an essential element of the physical injury rule and that plaintiff may not recover for emotional injuries not “directly caused by a physical injury. The plaintiff could not recover for impairment ... in her physical and mental condition, unless that particular impairment could be traced directly to the physical shock or physical wounds or bruises inflicted upon her.” Id. at 808 , 297 S.W. at 29 .
Plaintiff failed to prove both of these indispensable constituent elements of a claim for relief for mental distress.
Appellant urges that if she fails on her first point this Court reexamine and overrule the physical injury rule “to bring the law in Missouri relating to mental equilibrium and psychic injuries ... under the same protection that is now extended to physical well being ... by the majority of other jurisdictions.” Appellant argues that the reasons given in support of the rule 1 are unsound and in support of her thesis cites and quotes from various treatises, law review articles, and decisions from foreign jurisdictions. Three earlier Missouri cases 2 refer to these as the reasons “generally stated” in support of the rule, but an analysis of the long line of Missouri decisions by which the physical injury rule has been entrenched in Missouri law reveals that our courts have stated and relied upon other more basic and convincing reasons.
Foremost among these fundamental reasons is the pragmatic rule of social necessity. In our complex modern society ever-increasing numbers of people are served daily by electrically energized devices and machines serving human needs in the fields of transportation, communication, and commerce; devices that through advanced technology and electronic wizardry, are becoming ever more automated. Automatic devices and mechanical contrivances are not foolproof. Humanity has never lived a perfect world, and the miracles of science are not perfect or infallible. Inevitably breakdowns and failures of electrical and mechanical devices occur, with attendant mental distress; frights; unpleasant, shocking, or horrifying experiences; missed connections and other annoyances; inconveniences; and frustrations. Nowhere in the Constitution or laws, however, is it written that every citizen is entitled to perfection or *778 complete freedom from worry, upset, or mental distress. For the state to function without constant strife, it is necessary that certain of these malfunctions be accepted and tolerated, as long as they are unaccompanied by traumatic physical injury, as part of the price to be paid for membership in society, without resort to the courts for the redress of every imaginable grievance. 3
In McCardle v. George B. Peck Dry Goods Co., 271 Mo. 111 , 195 S.W. 1034 (1917), plaintiff was a passenger on an elevator which failed to stop at the first floor and passed on down to the bottom of the shaft in the basement, striking the bottom with a thud. She testified that she suffered severe nervous shock, pain, and other physical symptoms, but there was testimony indicating that she did not suffer any physical injury. The Supreme Court upheld an instruction that plaintiff could not recover from fright, terror, alarm, anxiety, or distress of mind resulting from the descent of the elevator “if these were unaccompanied by some physical injury” and that if plaintiff’s condition “is the result of fright or scare only” then plaintiff could not recover. Id. at 120, 121 , 195 S.W. at 1036 .
In Pretsky v. Southwestern Bell Telephone Co., 396 S.W.2d 566 (Mo.1965), defendant’s repairman entered plaintiff’s home by falsely stating that there was trouble on her telephone line. Plaintiff became concerned about the truthfulness of his statements and his purpose in entering the premises, as a result of which plaintiff suffered extreme anxiety, fright, and emotional upset. Denying recovery for mental distress the Supreme Court, id. at 569 , said:
The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where someone’s feelings are hurt.
In Brisboise v. Kansas City Public Service Co., 303 S.W.2d 619 (Mo. banc 1957), defendant’s streetcar operator made loud noises and movements with the streetcar in an attempt to force plaintiff’s automobile off the tracks. Plaintiff had parked her car temporarily on the streetcar tracks. She suffered mental distress and paralysis as a result of the confrontation. The Supreme Court denied recovery for mental distress, stating that “[mjodern affairs could not be carried on if all were required to regulate their conduct to conform to the temperaments of individuals abnormally susceptible to emotional disturbances.” Id. at 626 , 303 S.W.2d at 626 .
In Trigg v. St. Louis, Kansas City & Northern Railway, 74 Mo. 147 (1881), defendant’s train carried plaintiff past her destination, and plaintiff had to travel back by handcar the next day. The Supreme Court denied recovery for mental distress not caused by physical injury, observing that the delay in her journey caused by the train mistakenly passing her station was an event reasonably to be expected in modern affairs, stating:
The general rule is that “pain of mind, when connected with bodily injury, is the subject of damages; but it must be so connected in order to be included in the estimate, unless the injury is accompanied by circumstances of malice, insult or inhumanity.” ... If anxiety and suspense of mind are not a ground of recovery here, of course the effects are not.
Id. at 153 (citation omitted). In this connection see Porter v. St. Joseph Railway, Light, Heat, & Power Co., 311 Mo. 66 , 71— 72, 277 S.W. 913, 914 (banc 1925); Weissman v. Wells, 306 Mo. 82, 99 , 267 S.W. 400, 406 (1924); cases cited in Brisboise, 303 S.W.2d at 625 .
Another basic reason underlying the physical injury rule is that it is unfair, *779 impractical, and unjust to impose liability for mental distress and physical ailments resulting from mental anguish, when accompanied by physical injury, because they are not foreseeable: mental distress, which is a state of the mind, is largely dependent upon the peculiar temperament of the individual, is subjective, results from conditions within the brain and sense organs, and is conditioned by characteristics of the mind, that cannot be reasonably be expected to be anticipated or known of beforehand.
In Francis v. St. Louis Transfer Co., 5 Mo.App. 7 (1877), plaintiff’s illness, contracted while walking home after defendant put her off its conveyance a distance from her home, was held unforeseeable.
In Connell v. Western Union Telegraph Co., 116 Mo. 34 , 22 S.W. 345 (1893), a father’s mental distress and physical consequences, where the telegraph company failed to timely deliver a message that his son was dying, were held not in the contemplation of the defendant. The damages were “uncertain, indefinite, unascertaina-ble, dependent so largely on the peculiar temperament of the person suffering the delay.” Id. at 48 , 22 S.W. at 349.
In Crutcher v. Cleveland, Cincinnati, Chicago & St. Louis Railroad, 132 Mo.App. 311 , 111 S.W. 891 (1908), a plaintiff’s nervousness, menstrual hemorrhage, and other physical injuries following an abrupt confrontation between a railroad conductor and a passenger who did not have the proper ticket were held not actionable because unforeseeable. It was said to be almost impossible for reasonable men to guard against such injuries where there is no initial physical injury.
In Brisboise , the Supreme Court, denying recovery for mental anguish and its physical consequences, relied in part upon unfor-seeability, in these words: “To hold present day users of city streets liable under the factual allegations of plaintiff’s Petition would extend their foresight beyond the standards established by law.” 303 S.W.2d at 627 .
A further policy consideration is the impossibility of justly assessing compensatory damages within the required standards of accuracy and certainty in view of the wide variance in the degree of suffering experienced by different people with differing reactions and sensitivities. Such damages, not flowing from traumatic injury but originating in the mind of the claimant, are sentimental, abstruse, and metaphysical in character, in some eases the product of an excited imagination, and therefore not ascertainable under conventional standards established in the law of damages. Consequently, any such award of damages, necessarily based upon guesswork, would be punitive in nature rather than compensatory, and punitive damages cannot be awarded in cases involving negligent conduct (as contrasted with willful, intentional, malicious, or reckless conduct). Warner v. Southwestern Bell Telephone Co., 428 S.W.2d 596, 603 (Mo.1968). This concept was well stated in Connell, 22 S.W. at 348 , as follows:
The reason why an independent action for such damages cannot and ought not to be sustained is found in the remoteness of such damages, and in the metaphysical character of such an injury, considered apart from physical pain. Such injuries are generally more sentimental than substantial. Depending largely upon physical and nervous condition, the suffering of one under precisely the same circumstances would be no test for the suffering of another.... That damages so imaginary, so metaphysical, so sentimental shall be assessed by a jury with justness, not by way of punishment to the defendant, but as mere compensation to plaintiff, is not to be expected.
In McCardle , the Supreme Court quoted. with approval from a Massachusetts ease in which it was stated that
the general conduct of business and of the ordinary affairs of life, must be done on the assumption that persons who are liable to be affected thereby are not peculiarly sensitive, and are of ordinary physical and mental strength.... [A]s a general rule, a carrier of passengers is not bound to anticipate or to guard against an injurious result which would only hap-
*780 pen to a person of peculiar sensitiveness. ... One may be held bound to anticipate and guard against the probable consequences to ordinary people, but to carry the rule of damages further imposes an undue measure of responsibility upon those who are guilty only of unintentional negligence.
271 Mo. at 120-21 , 195 S.W. at 1036 .
The basic reasons for the physical injury rule, which has been the law of this state for more than a century, are as sound and satisfactory in the age in which we live as they were when first announced. We follow the lead of the many precedents on our books and recall what the Supreme Court said in the Connell case, 22 S.W. at 348:
A doctrine which has passed so long unchallenged by the great jurists who have adorned the bench of our state and federal courts is not to be lightly discarded at the behest of ingenious and able counsel. The law is, and ought to be, more stable than this. It has long been the boast of common-law writers that the common law was a system founded upon reason; and one of its maxims has ever been that, when the reason upon which a law was based ceased, the law itself ceased. Speaking for ourselves, we are satisfied that the common law, denying an action for mental distress alone, was founded upon the best of reasons and an enlightened public policy.
Applying these well-established principles to the facts of this case, there was no traumatic physical injury and therefore plaintiff’s physical suffering was not and could not have been proximately caused by a traumatic physical injury. There was a minor malfunction of an elevator. It stalled; an event which, although not an everyday occurrence, does occasionally happen and is not entirely unexpected in modern affairs. Plaintiff understood that people have problems with elevators. This elevator, to the knowledge of plaintiff, was equipped with buttons for stopping, opening and closing the door, and emergencies; alarms; intercom; and an escape door in the side of the elevator. She had been instructed by maintenance that if building employees had any problem they should push the emergency button “and someone would respond on the intercom and talk to you while you were in the elevator if there has been a problem.” When the problem arose, however, plaintiff experienced an emotional reaction when there was no response to the emergency bell. Plaintiff, who admitted that before this incident happened she was “somewhat” under stress (in the process of getting a divorce, family problems with caring for three teenagers and her ailing mother, “and working”), got a “funny feeling,” became light-headed and dizzy, began hitting the door, and slid down in a corner. There is no mention that plaintiff feared that the elevator would fall. That was not her worry. Her concern related solely to her imprisonment, and as it bears upon plaintiff’s loss of composure the record raises the unanswered question why she did not push the “Door Open” button. There was no power failure inside the elevator. Number “23” lighted when plaintiff entered the elevator and pushed the button for the twenty-third floor. The interior elevator lights remained illuminated. The emergency button was working (plaintiff as well as persons in the hallway heard the alarm bell ringing). Plaintiff admitted she was aware of the “Door Open” button, that “Door Open” was clearly printed thereon, that she knew its purpose was to open the door, but that at' no time while in the elevator did she press the “Door Open” button. Based on these conceded facts it appears that by the simple expedient of pushing the “Door Open” button she could have released herself and stepped out of the elevator onto the twenty-first floor, but in her emotional state she did not push that button. Plaintiff’s dizziness, hyperhydrosis, hyperventilation, speech difficulty, and pupil dilation originated not in trauma but in her mind and resulted not from defendants’ negligence but from plaintiff’s hypersensitivity, failure to control her emotions, imagination, and expressed fear that, like her mother, she was about to experience a stroke.
Plaintiff’s sufferings were not reasonably foreseeable; any damage verdict rendered under the evidence would be unjust because of the metaphysical character of plaintiff’s *781 suffering and would constitute an award of punitive damages, which can be assessed where the defendant does a wrongful act intentionally and without just cause or excuse [where there is “some element of wantonness or bad motive,” Pollock v. Brown, 569 S.W.2d 724, 733 (Mo. banc 1978)], but may not be assessed in an action based upon simple negligence.
Under the physical injury rule there was no error in sustaining defendant’s motion for a directed verdict.
The judgment is affirmed.
. (1) Medical science’s difficulty in proving causal connection between the alleged fright and the alleged negligent act;
(2) Fear that the courts would be faced with numerous fraudulent or exaggerated claims;
(3) Fear that a flood of litigation, overwhelming the court, will be precipitated.
. Harless v. Southwest Mo. Elec. Ry., 123 Mo. App. 22 , 99 S.W. 793 (1907); Kennedy v. St. Louis Transit Co., 103 Mo.App. 1 , 78 S.W. 77 (1903); Strange v. Missouri Pac. Ry., 61 Mo. App. 586 (1895).
. Where, however, mental distress is caused by extreme or outrageous conduct — acts which are willful, intentional, malicious, or inhumane — the law should, and does, provide a legal remedy. Dalzell v. Dean Hotel Co., 193 Mo.App. 379 , 186 S.W. 41 (1916); Wilson v. St. Louis & S.F.R.R., 160 Mo.App. 649 , 142 S.W. 775 (1912); Harless v. Southwest Mo. Elec. Ry., 123 Mo.App. 22 , 99 S.W. 793 (1907).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9646424. Public record. Not legal advice.