
    Margaret Williams, an Infant, by Henry Evans, her Guardian ad Litem, Appellant, v. Frederic E. Underhill, Sued as Frederick Underhill, Respondent.
    
      Proximate damage — the rule that damages are not recoverable for injuries resulting from fright alone does not apply to a case of assault.
    
    The complaint in an action by an infant to recover damages for an alleged assault committed upon her by the defendant, alleged that by reason of said assault the plaintiff was made sick, sore, lame and disabled, and suffered great mental pain and anguish, and more particularly that she was nervously prostrated and became insane, and by reason of the same was compelled to expend large sums of money in procuring medical attendance, and was otherwise damaged. The plaintiff also served the following “ bill of particulars of the injuries sustained by the plaintiff and the amount paid for medical attendance: Mrst. As a result of fright the above-named plaintiff became the victim of maniacal insanity, with hallucinations and illusions. The said plaintiff will ' likewise be subject to various forms of insanity and be nervous and prone to ■ nervous diseases and neuroses, and will never be 'mentally as strong as before said fright.” Then followed items of expenses for medical attendance.
    Upon the trial the court admitted evidence tending to show the commission of the assault, and that' the plaintiff had previously been a person of unusual mental strength, but refused to admit any evidence as to her mental condition subsequent to the alleged assault, or any evidence as to 'medical treatment received by her, and dismissed the complaint upon the ground that by the bill of particulars the plaintiff had limited herself to injuries resulting from fright, and that damages resulting from fright alone or from mental suffering disconnected from other inj uries, could not be recovered.
    
      Held, that the judgment dismissing the complaint should be reversed;
    That the rule sought to be applied by the court had no application to a case of willful tort.
    Appeal by the plaintiff, Margaret Williams, an infant, by Henry Evans, her guardian ad litem, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 8th day of February, 1901, upon the dismissal of the complaint by direction of the court after a, trial at the New York Trial Term. • ‘ ' . ...
    ■ Oscar W. Ehrhorn, for the appellant. ' . .
    
      EdwardS. Clinch, for the respondent.
   Hatch, J.:

•This action was instituted in behalf of an infant, by her guardian ad litem, to recover damages for an alleged assault committed upon her by the defendant. It appears that the plaintiff was employed in the family of the defendant in the capacity of nurse to the defendant’s children, and while so 'employed went with the family to their summer residence at Tenafly, N. J. The plaintiff avers that while at this place the defendant assaulted and laid violent hands upon the plaintiff, and that by reason of said assault the plaintiff was made sick, sore, lame and disabled, and suffered great mental pain and anguish, and more particularly she was nervously prostrated and became insane, and by reason of the same she was coinpelled to expend large sums of money in procuring medical attendance, and was otherwise damaged. The answer is a general denial.

The defendant demanded a bill of particulars of the injuries sustained by the plaintiff, and in response to such demand the plaintiff served such a bill in writing, as follows : “ You will please take notice that the following is a bill of particulars of the injuries sustained by the plaintiff and the amount paid for medical attendance: “ First. As a result of fright the above-named plaintiff became the victim of maniacal insanity, with hallucinations and illusions. The said plaintiff will likewise be subject to various forms of insanity and be nervous and prone to nervous diseases and neuroses, and will never be mentally as strong as before sáid fright.” Then followed an item of expenses for medical'attendance, /

Upon the trial of the issues the court admitted evidence which tended to prove the commission of the assault by the defendant, and that prior to the same the plaintiff had been a person of unusual mental strength, but refused to admit any evidence as'to the mental" condition of the jrlaintiff subsequent to the alleged assault, or any evidence as to medical treatment received by her,'and dismissed the complaint at the close of the plaintiff’s case upon the ground that by the bill of particulars furnished by the plaintiff she had limited herself to injuries resulting from fright; that damages resulting-from fright alone, or from mental suffering disconnected from other injuries, cannot be recovered ; and as the bill of particulars limited the claim to such injuries, eliminating from consideration all physical in jury, no recovery could be had in this case.. Judgment was .entered accordingly, and from such judgment this appeal is taken.

We are of the opinion that the trial court erred in the application of the rule stated by him to the facts of this case.

In the discussion of a motion to dismiss the complaint made at the close of the plaintiff’s case, the court said : “ The Court of Appeals have said distinctly that you can’t recover damages for fright disconnected from other injuries,” and seems tó have held the view that, because of the language of the bill of particulars, the plaintiff was limited to proof of injury occasioned solely by fright, and, therefore, could not recover because of the rule so stated. The authority to which the court doubtless referred is the case of Mit chell v. Rochester Railway Co. (151 N. Y. 107), but the rule there announced has no application to the facts in the present case. That was an action to recover damages for alleged negligence, the only injury resulting frdin which was fright and excitement which were the alleged cause of a miscarriage and consequent illness. There was no claim of personal injury other than the fright and excitement caused by the plaintiff’s having been put in a dangerous position by the averred negligent act of the defendant, and it has been held that the plaintiff’s injuries did not fall within the rule as to-proximate damages ; that they were occasioned by “ an accidental or unusual combination of circumstances, which • could not have been reasonably anticipated, and over which the defendant had no-control, and, hence, her damages were too remote to justify a recovery.” No such rule of proximate damages is applicable to actions to recover damages for a willful tort. It has been held that the authority cited applies only to actions based on negligence, and not to -cases of willful tort. (Preiser v. Wielandt, 48 App. Div. 569.)

As is clearly indicated by the opinion in the Mitchell Case (stopra) the reason for limiting liability in actions for negligence is founded in the principle of law governing such actions, viz., that the measure-of damage shall be confined to the natural and- probable consequences of the act or omission constituting the cause of action.. The distinction between such a case and one founded upon a willful tort, such as assault, is very clear.

In this case the court admitted, without, objection, the evidence of the plaintiff 'tending to prove the commission of the assault-,.and that prior to the same the plaintiff had been a q>erson of unusual mental strength, and it was error to exclude the. testimony offered to show the effect of the assault upon her mental condition and of the medical treatment received by her therefor.

It follows that the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Van Brunt, P. J., .Patterson, McLaughlin and Laugh lin, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.  