13 S.W. 59
HILL et al. 
v. 
KIMBALL.
Supreme Court of Texas.
February 14, 1890.
        Appeal from district court, Freestone county.
        J. D. Childs, for appellants. Gammage & Gammage, for appellee.
        GAINES, J.
        The case presented by the petition in this suit being novel, we were in doubt whether the facts 
alleged showed a cause of action, and for that reason set aside the submission at the last term, and 
requested counsel to submit arguments upon that question. The question has been argued, and the cause 
again submitted for determination. The defendant below, the appellee here, interposed an exception to 
the petition on the ground that he was not sued in the county of his residence, and the exception was 
sustained by the court. The correctness of that ruling depends upon the nature of the suit. The petition 
alleges, in substance, that plaintiffs were husband and wife, and were in possession under a lease of a 
dwelling-house and land belonging to defendant; that the wife was well advanced in pregnancy, and that 
defendant knew the fact, and that he was also aware that any undue excitement to a lady in that 
condition was likely to produce a serious injury to her health; that, notwithstanding these facts, he came 
to plaintiff's house, and in the yard, and in the immediate presence of the wife, he assaulted two negroes 
in a boisterous and violent manner, and that the assault was accompanied with profane language, and 
resulted in drawing blood. It was also alleged that defendant's conduct frightened Mrs. Hill, and brought 
on the pains of labor, and eventually produced a miscarriage, and otherwise seriously impaired her health.
        After a very careful consideration of the petition, we are of opinion that its allegations show a cause 
of action. We have found no exact precedent for such an action, but that is no sufficient reason why an 
action should not be sustained. That a physical personal injury may be produced through a strong emotion 
of the mind there can be no doubt. The fact that it is more difficult to produce such an injury through the 
operation of the mind than by direct physical means affords no sufficient ground for refusing 
compensation, in an action at law, when the injury is intentionally or negligently inflicted. It may be more 
difficult to prove the connection between the alleged cause and the injury, but if it be proved, and the 
injury be the proximate result of the cause, we cannot say that a recovery should not be had. Probably an 
action will not lie when there is no injury except the suffering of the fright itself, but such is not the 
present case. Here, according to the allegations in the petition, the defendant has produced a bodily injury 
by means of that emotion, and it is for that injury that the recovery is sought. If, in his assault upon the 
negroes, he had discharged a missile at one of them, and it had missed its aim, and had struck Mrs. Hill, 
and produced a miscarriage, there is no doubt that he would be liable to an action; and it seems to us he 
should be equally held liable for the same result, produced by the same conduct, except that in the one 
case the means of the injury is a material substance, and in the other a mental emotion. Of course, since 
there is no intent to injure Mrs. Hill alleged, it will be a question for the jury to determine whether his 
conduct, so far as she was concerned, was negligent or not; that is to say, whether, under the 
circumstances, and with the lights before him, a reasonably prudent man would have anticipated the 
danger to her or not. We have been cited by counsel for appellee to the case of Renner v. Canfield, 36 
Minn. 90, 30 N. W. Rep. 435. In that case the defendant shot a dog near the residence of the plaintiff, and 
thereby frightened his wife, and caused a miscarriage. The court say, in effect, that the charge to the jury 
was erroneous because the jury could, and would probably, infer from it that the defendant was liable in 
the action if the killing of the dog was unlawful; and for this error the judgment was reversed. In the 
opinion the court say: "If the acts of defendant amounted to any tort which, in any
Page 60
possible view of the case, could be held to be the proximate cause of the injuries complained of, the gist 
of it must be negligence in shooting in such proximity to a human residence as might naturally and 
reasonably be anticipated to be liable to injure the inmates by fright or otherwise. We are by no means 
prepared to say that upon the evidence a verdict for plaintiff could be sustained even upon that ground. 
But it is enough, here, to say that the case was not submitted to the jury upon any such theory." It is 
evident that the court did not decide that no action would lie even under the peculiar facts of that case. 
Besides, it appeared in that case that the defendant was not aware of the proximity of the plaintiff's wife 
at the time he discharged the gun.
        We think the petition in this case discloses a cause of action, and this conclusion brings us to the 
question originally presented in appellant's brief. The petition alleged the residence of defendant to be in 
Leon county, and that the injury was inflicted in Freestone county, in which the suit was brought. The 
defendant excepted to the petition because the action was not brought in the county of his residence. The 
ruling of the court in sustaining the petition is assigned as error. Our statutes provide that no person who 
is an inhabitant of the state shall be sued out of the county of his domicile except in certain cases. Rev. 
St. art. 1198. Among the exceptions is the following: "Where the foundation of the suit is some crime or 
offense or trespass for which a civil action in damages may lie, in which case the suit may be brought in 
the county where such crime or offense or trespass was committed, or in the county where the defendant 
has his domicile." Rev. St. art. 1198, (Exception 8.) It is clear that, unless the action in this case can be 
classed as a trespass within the meaning of that term in the provision quoted, the suit was improperly 
brought in Leon county; and the determination of that point depends upon the further question whether 
the word is used in that statute in its most restricted, or in a more enlarged, legal sense. In its widest 
signification, it means any violation of law. In its most restricted sense, it signifies an injury intentionally 
inflicted by force either upon the person or property of another. But it still has a signification in law much 
more narrow than the first, and more enlarged than the second, meaning given, and embraces all cases 
where injury is done to the person or to property, and is the indirect result of wrongful force. Abb. Law 
Dict. "Trespass." In this last sense the word would include injuries to persons or property which are the 
result of the negligence of the wrong-doer, and it seems to us more in consonance with the purpose and 
spirit of the exception to hold that it was in this sense that it intended that the word should be 
understood. We presume the exception was made in the interest of the injured party, and not of the 
wrong-doer; and we see no good reason why a distinction should be made between an injury resulting 
from intentional violence and one resulting from negligence. It occurs to us the consideration which 
induced the exception was that one who had been injured in his person or his property by the willful or 
negligent conduct of another should not be driven to a distant forum to get a redress of his wrongs. In the 
case of Ten Eyck v. Runk, 31 N. J. Law, 428, the supreme court of New Jersey construed the word 
"trespass," as used in a statute of that state, as descriptive of a class of actions, and held that it was not 
used in its most restricted sense, but applied, also, to all actions of trespass on the case. See, also, Cook 
v. Hertman, 2 White & W. Civil Cas. 770. If, as we think, the word "trespass," in our statute, was intended 
to embrace, not only actions of trespass proper, as known to the common law, but also actions of trespass 
on the case, it is clear that the action in this case was properly brought in Freestone county, and that the 
court had jurisdiction over the person of the defendant.
        We conclude that the court erred in sustaining the exception to the petition; and for this error the 
judgment is reversed, and the cause remanded.