This сase is before us on appeal hy Mrs. Irene Lyons, plaintiff, from a judgment of the Circuit Court of the First Judicial District of Hinds County, sustaining a demurrer filed by Zale Jewelry Company, defendant, to the plaintiff’s declaration in an action for damages for extreme shock, mental anguish and nervous shock and physical pain and suffering allegedly suffered hy the plaintiff as the result of willful and wanton, vile and abusive language and threats used by the Company’s employee and co-defendant in a telephone conversation with the plaintiff for the purpose of enforcing payment of a debt claimed to be due and owing to the defendant by the plaintiff’s 23-year-old son. The damages sought to be recovered were damages suffered on account of abusive language directed to the plaintiff during a long distance telephone conversation on March 22, 1961.
The plaintiff’s declaration was filed on June 29, 1961, against Zale Jewelry Company and Louis Welch as defendants. The plaintiff alleged in her declaration that Zale Jewelry Company was a Mississippi corporation domiciled in the City of Jackson, Mississippi; that the defendant Welch at the time the plaintiff’s cause of action arose was an employee of Zale Jewelry Company, but since that time had removed himself from the jurisdiction of the court and his whereabouts were unknown.
The plaintiff further alleged that she was a practical nurse by profession, and that at the time of the injury complained of she was employed in a nursing capacity by Mrs. S. F. Thigpen, the wife of S. F. Thigpen, Mayor of the Town of Heidelberg, Mississippi; and that, while engaged in the performance of her duties as a practical
The plaintiff alleged that, after making that statement, Welch slammed the phone down; that she then hung up the receiver, sat down in a nearby chair, and
The plaintiff alleged that she was a woman 45 years of age, and was in good hеalth earning $350 per month as a nurse at the time she received the telephone call mentioned above; that the defendant Welch, at the time he made the call was an employee of the defendant Zale and was working* in the course of his employment in an effort to ascertain the whereabouts of her son and collect the debt owed by her son to the Jewelry Company; and that, under the doctrine of respondeat superior, the defendant Jewelry Company was liable, jointly and severally, with its employee for the damages the plaintiff had suffered as a result of the abusive language used by Welch toward the plaintiff.
Finally, the plaintiff alleged that, as a direct and proximate result of the vile and abusive language used by the defendant Welch during the course of the telephone conservation mentioned above, she had suffered a severe shock to her nervous system to the extent that her health and emotional well-being* had been greatly impaired, her nervous system had been damaged and shattered; and she had incurred a loss of earnings in the amount of $1,100, plus medical bills in the amount of $125; that she had suffered further actual damages on account of the grеat mental and physical distress
The defendant Jewelry Company demurred' to the declaration and assigned as ground therefor that the declaration did not state a cause of action. The circuit judge was of the opinion that the case did not rise higher than the level of actionable words and that under the pleading a common law action for damages for personal injury could not he sustained. The plaintiff declined to amend her declaration, and an order was therefore entered dismissing the plaintiff’s suit with prejudice.
The only question presented for our decision on this appeal is whether or not the facts alleged in the plaintiff’s declaration, if proved, were sufficient in law to support a recovery of damages for the alleged severe mental distress and emotional and physical injury resulting from the wrongful conduct of the defendant’s employee Welch.
It has been frequently stated that under the common law mental anguish without actual injury will not support a recovery of damages. 25 C.J.S. 550, Damages, Sec. 64; Western Union Telegraph Co. v. Rogers (1891),
It is clear, however, that from the very earliest times the law has allowed recovery for mental distress under some circumstances, where the act of defendant producing such distress also involved an independent tort of some kind, such as a trespass on plaintiff’s person or property, a negligently caused physical injury, or injury to reputation, freedom of movement, or right of privacy. In addition to these instances where damages for mental distress are regarded as “parasitic” upon another tort, there are a number of special instances where at least some of the courts have traditionally recognized a more or less independent right to recover for emotional distress.
In Prosser on Torts, 2d Ed., Ch. 2, Sec. 11, pp. 40, 41 and 46, it is stated:
“The early cases refused all remedy for mental injury, unless it could be brought within the scope of some already recognized tort. Thus it was held that mere words however violent, threatening or insulting, did not constitute an assault, and hence afforded no ground for redress. * * * But if some independent tort, such as assault, battery, false imprisonment, or seduction could be madeout, tlie cause of action served as a peg upon which, to hang the mental damages, and recovery was freely permitted. Such ‘parasitic’ damages were the entering wedge.
“It has gradually become recognized that there is no magic inherent in the name given to a tort, or in any arbitrary classification, and that the infliction of mental injury may be a cause of action in itself. Its limits are as yet ill defined, but it has been extended to its greatest length in the case of international acts of a flagrant character, whose enormity adds especial weight to the plaintiff’s claim, and is in itself an important guarantee that the mental disturbance which follows is serious and not feigned * # *.
“So far as it is possible to generalize from the cases, the rule which seems to bе emerging is that there is liability for conduct exceeding' all bounds usually tolerated by society, of a nature which is especially calculated to cause and does cause mental damage of a very serious kind.”
As stated by the textwriter in an extended annotation on Torts — Emotional Disturbances, which appears in 64 A.L.R. 2d p. 100, 119, in many of the early cases statements recognizing generally that there can be no recovery for emotional distress alone can be characterized as dicta, and there now appears to be a definite trend toward the recognition of a right to recover for a severe disturbance of mental or emotional tranquility resulting from an unprivileged act of defendant reasonably calculated to cause grave mental distress to plaintiff and committed intentionally or recklessly.
In the case of Continental Casualty Co. v. Garrett,
The rule denying the right to maintain an action for a bodily injury or illness resulting from a mental or emotional disturbance is most frequently applied, or stated to be applicable, in cases of negligence.
(Hn 1) In general, damages for mental anguish or suffering are recoverable when they are the natural or
In American Law Institute Restatement, Torts, 1948 Supp., the rule is stated as follows: “Sec. 46. Conduct intended to cause emotional distress only * * *. One who, without a privilege to do so, intentionally causes severe emotional distress to another is liable (a) for such emotional distress, and (b) for bodily harm resulting from it.” In its comment on this rule appears the following: “An intention to cause severe emotional distress exists when the act is done- for the purpose. of causing the distress or with knowledge on the part of the actor that severe emotional distress is substantially certain to be produced by his conduct. # * * If an act is done with the requisite intention, it is immaterial
In Bowles v. May (1932),
In Gadbury v. Bleitz (1925),
In Kirby v. Jules Chain Stores Corporation (1936),
In Delta Finance Co. v. Ganakas (1956),
In the extended annotation on Torts, Emotional Disturbances, which appears in
The general rule is that а creditor has a right to urge payment of a just debt, and to threaten to resort to proper legal procedure to enforce the same. Hence, the creditor is not ordinarily liable for a mental or emotional disturbance, or for a bodily injury or illness, resulting from such acts. Kramer v. Ricksmeier (1913 Iowa),
In Clark v. Associated Retail Credit Men, supra, the Court in holding the defendant liable for damages resulting from abusive letters, said: “In such circumstances, recovery has repeatedly been allowed. * * * The infliction of bodily harm by words, like the infliction by blows, may on occasion be privileged. * * * But neither beating a debtor nor purposely worrying him sick is a permissible way of collecting a debt. We do not suggest that creditors must use care to avoid shocking their debtors or may not, for purposes of collection, intentionally inflict some worry and concern. But * # * they should refrain from conduct intended or likely to cause physical illness.”
In Barnett v. Collection Service Company, supra, the Court sustained а jury verdict for the plaintiff, where it appeared that collection letters sent to her by the defendant were coarse and vindictive, contained threats to sue, to appeal to plaintiff’s employer “until he is so disgusted with you that he will throw you out the back door,” together with a suggestion that the plaintiff was as bad as a criminal, on the ground that the acts of the defendant were willful and were intended to cause the plaintiff mental pain and anguish. In the more recent case of Curnett v. Wolf (1953),
In Bowden v. Spiegel, supra, the Cоurt held that a complaint stated a cause of action which averred that defendant’s agent called plaintiff on a neighbor’s telephone saying that there was an emergency and when plaintiff answered accused her of not paying a bill at defendant’s store and threatened to cause her trouble and court action if she did not immediately pay the bill, the accusation was understood by the neighbors who heard the telephone conversation, the accusation was false, such agent acted maliciously and without probable cause, and as a result plaintiff beсame ill and remained so, since intentional use of such an unreasonable method of collecting a debt which proximately results in physical illness is actionable. In its opinion in that case the Court said: “The important elements are that the act is intentional, that it is unreasonable, and that the actor should recognize it as likely to result in illness. Given these elements the modern cases recognize that mere words, oral or written, which result in physical injury to another are actionable.” See also cases cited.
In the case of Duty v. General Finance Company (1954),
The trial court dismissed the petition as failing to state a cause of action. The El Paso Court of Civil Appeals, Eighth Supreme Judicial District, affirmed the trial court judgment and the plaintiffs brought error. The Supreme Court, Hickman C.J., held that damages for mental anguish, resulting in physical injuries allegedly caused by the manner in which the defendants attempted to collect balances due them on the notes given by the borrowers, would be recoverable. The judgments of the trial court and the Court of Civil Appeals were reversed and the cause remanded.
In its opinion in that case the Supreme Court of Texas said: “The majority opinion of the Court of Civil Appeals is based on the conclusion that the case is ruled by our deсision in Harned v. E-Z Finance Company,
In the case that we have here it is argued on behalf of the appellant that this Court has recognized in several cases that a party suffering emotionаl distress and physical harm as the result of a wanton and grossly shameful wrong inflicted by the defendant or its agent by the use of abusive, intimidating and insulting language, has a right of action in the courts of this state to recover damages for the injury suffered in consequence thereof; and the appellant’s attorney cites in support of his contention Continental Casualty Company v. Garrett, supra, and Saenger Theatres Corp. v. Herndon, supra.
In answer to the argument made on behalf of the appellant, the appellees ’ attorneys say that the Mississippi courts have followed the general common law rule that damages cannot be recovered for mental suffering alone, that this case does not fall within any of the recognized exceptions, and this Court would not be justified in creating “a new common law tort,” as that term is used in several cases cited by the appellees’ attorneys in their brief.
The two Mississippi cases mainly relied upon by the appellee, in support of its contention that the judgment of the lower court sustaining the demurrer to the plaintiff’s declaration should be affirmed, are Doherty v. Mississippi Power Company (1937),
The main cases from other jurisdictions cited and relied upon by the appellee are Ex Parte Hammett (1953),
(Hn 2) After a careful review of the cases cited by the respective parties in their briefs and many other cases cited by the textwriters referred to in this opinion, we think the allegations of the plaintiff’s declaration were sufficient to withstand a demurrer, and that the trial coRirt erred in sustaining the demurrer filed by the defendant jewelry company.
We are not called upon to consider here the creation of an independent (new) cause of action in tort. This Court has recognized the undeniablе fact that a strong emotion of the mind, and particularly when that emotion is highly unpleasant, as from a sense of insult, may produce a physical personal injury. Continental Casualty Co. v. Garrett, supra. This Court has also recognized the principle that, when definite and objective physical injury is produced as a result of emotional stress wrongfully caused by the defendant, a defendant under some circumstances may be held liable for such physical consequence notwithstanding the absence of any physical impact upon the plaintiff at the time of the mental shock. Saenger Theatres Corporation v. Herndon, supra. Since the case now before us has not been tried, and we do not know what facts will be developed when the case is tried, we have refrained from any discussion of the various allegations contained in the declaration.
(Hn 3) We think there is no merit in the appellee’s contention that the declaration in this case failed to allege facts sufficient to show that Welch was the agent
For the reasons stated above the judgment of the lower court is reversed and the canse remanded.
Reversed and remanded.