Plaintiffs have moved to amend their first amended complaint by adding an alleged “Second Cause of Action.” The material portion of the amendment is set forth in proposed paragraph II as follows:

The first cause of action is for the wrongful death of the child and its propriety as a matter of pleading is not challenged.

This action is brought under the provisions of the Tort Claims Act, 28 U.S.C. § 1346 (b), where an action may be brought against the United States, “ * * * under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” This occurrence is alleged to have taken place in California. Therefore the validity of the amendment must be determined according to the law of California.

The Government opposes the amendment asserting that it fails to state a cause of action under California law, and, therefore, fails to state a claim for relief under the Federal Rules of Civil Procedure, 28 U.S.C.A. The gist of the alleged claim is that plaintiffs were damaged in that they became physically ill from shock and mental anguish caused by the knowledge that their small child was being burned to death in a house which was burning because of the negligent conduct of agents of the defendant. In essence this is a claim for damages produced by shock from fear of danger or harm to another, where the danger or harm was caused by ordinary negligence, and where the claimant was not himself endangered or harmed.

That this field of tort law is not without conflict is illustrated by the following quotation from the Restatement of the Law of Torts, Vol. 2, p. 851, caveat to Section 313:

The general rule as stated in the legal encyclopedias seems to be contrary to plaintiffs’ theory.

Plaintiffs, recognizing the general rule, assert that California does not follow the general rule, citing Deevy v. Tassi, 21 Cal.2d 109 , 130 P.2d 389 , and Lindley v. Knowlton, 179 Cal. 298 , 176 P. 440 . It is apparent that plaintiffs have misconceived the thrust of these cases, and have ignored the other California cases on the subject. Thus far the California courts have not permitted damages in any case where there was not some element of physical injury to, or reasonable fear of injury to the claimant, except in cases of intentional torts, outrageous conduct, or interference with some interest in real property. Where the mental distress, or physical illness resulting from mental distress, occurs as the result of intentional or outrageous conduct recovery is permitted. Deevy v. Tassi, supra, upon which plaintiffs rely, falls within this class of cases, and is, therefore, clearly distinguishable from the case at bar. There the conduct which was held to be actionable was a violent physical assault on the members of a family in which all of the plaintiffs were physically injured by the intentional conduct of the defendants. Also, this case does not fall into the class where recovery has been allowed for mental distress caused by an invasion of a real property interest in which the plaintiff has reasonable fears for the health and safety of himself and members of his family.

It is the opinion of the Court that this case is controlled by the California cases dealing with claims for mental distress caused by ordinary negligence where there is no fear of physical impact by the claimant, but where there is physical impact or fear of physical impact to a third person. This Court had previous occasion to review this subject in Minkus v. Coca Cola Bottling Co. of California, D.C.1942, 44 F.Supp. 10 , where the Court dismissed a claim for nervous shock by parents suffered as the result of finding a partialy decomposed mouse in a bottle of Coca Cola, which had been partially consumed by their minor child. The Court said at page 11:

The California eases support this conclusion. In Clough v. Steen, 1934, 3 Cal.App.2d 392 , 39 P.2d 889 , the court reversed a judgment allowing damages for grief and shock to a mother caused by the death of a minor child who was killed in an automobile accident in which she was also injured. The court said

at page 394 of 3 Cal.App.2d, at page 890 of 39 P.2d:

That case also distinguishes the case of Lindley v. Knowlton, supra, which is relied upon by plaintiffs here. The Court said at page 393 of 3 Cal.App.2d, at page 890 of 39 P.2d:

This holding has been followed in Kelly v. Fretz, 1937, 19 Cal.App.2d 356 , 65 P.2d 914 , and Zeller v. Reid, 1940, 38 Cal.App.2d 622 , 101 P.2d 730 , and is in accord with Kalleg v. Fassio, 1932, 125 Cal.App. 96 , 13 P.2d 763 .

Therefore, plaintiffs’ motion to amend must be denied.

It is ordered that plaintiffs’ motion for permission to file a second amended complaint be, and the same is hereby denied.

. State Rubbish, etc., Ass’n v. Siliznoff, 38 Cal.2d 330 , 240 P.2d 282 ; Deevy v. Tassi, supra; Guillory v. Godfrey, 134 Cal.App.2d 628 , 286 P.2d 474 . . Kornoft v. Kingsburg Cotton Oil Co., 1955, 45 Cal.2d 265 , 288 P.2d 507 ; Herzog v. Grosso, 1953, 41 Cal.2d 219 , 259 P.2d 429 ; Alonso v. Hills, 1950, 95 Cal. App.2d 778 , 214 P.2d 50 .