Summary
In Ex parte Hammett, supra, this court noted that the authorities are divided on the question whether words alone unconnected with any trespassory act and not defamatory, give plaintiff a right of action for injuries alleged to have been caused by mental or emotional disturbance.
Summary of this case from Hamner v. BradleyOpinion
7 Div. 192.
June 30, 1953.
Appeal from the Circuit Court of Calhoun County, W. D. DeBardelaben, J.
Chas. S. Doster, Jr., Anniston, for petitioner.
The complaint is subject to a general demurrer and will not support judgment. Kramer v. Ricksmeier, 159 Iowa 48, 139 N.W. 1091, 45 L.R.A., N.S., 928; Bartow v. Smith, 1948, 149 Ohio St. 301, 78 N.E.2d 735, 15 A.L.R.2d 94; Republic Iron Steel Co. v. Self, 192 Ala. 403, 68 So. 328, L.R.A. 1915F, 516; Maze v. Employees' Loan Society, 217 Ala. 44, 114 So. 574; 1 Ala. Law Rev. 121. The defendant cannot be required to answer interrogatories when complaint is subject to a general demurrer. Altman v. Barrett, 234 Ala. 234, 174 So. 293; Ex parte Nolen, 223 Ala. 213, 135 So. 337; 18 C.J. 1104.
Chas. Douglass, Anniston, for respondent.
Where complaint was held good on demurrer, defendant could not refuse to answer interrogatories on ground that complaint would not support judgment. 18 C.J. 1104; 27 C.J.S., Discovery, §§ 35, 90; Ex parte Nolen, 223 Ala. 213, 135 So. 337. Under contract for services there may be a breach of duty as well as breach of contract. Defendant contracting to construct drainway, owed duty of courtesy to his employer, plaintiff. If he breaches contract and abuses his plaintiff in effort to force payment there is a breach of duty and liability for such damages as arise. Mobile Life Ins. Co. v. Randall, 74 Ala. 168. An act which constitutes a criminal offense also constitutes a civil wrong which will support an action for damages. 1 C.J.S., Actions, §§ 994, 996; Hardie-Tynes Mfg. Co. Cruise, 189 Ala. 66, 66 So. 657; 1 Am.Jur. 419. It is an offense for a man to use profane, indecent, obscene and insulting language in the presence of a woman. Defendant under contract owed plaintiff a special duty to refrain from use of such language. Code 1940, Tit. 14, § 11; Seaboard Air Line R. Co. v. Mobley, 194 Ala. 211, 69 So. 614. Where such language is used and injury results there is liability for injury. Code, Tit. 14, §§ 11, 12; Payne v. Shearer, 5 Cir., 270 F. 572, 18 A.L.R. 71; Brady v. State, 48 Ga. 311; Foster v. State, 99 Ga. 56, 25 S.E. 613; Saks Sons v. Ivey, 26 Ala. App. 240, 157 So. 265; Clark v. Associated Retail Credit Men, 70 App.D.C. 183, 105 F.2d 62. Every wrong imports damage. Blackburn v. Alabama G. S. R. Co., 143 Ala. 346, 39 So. 345; Kay v. Dean, 24 Ala. App. 70, 130 So. 165; Birmingham Ry., L. P. Co. v. Littleton, 201 Ala. 141, 77 So. 565; Central of Ga. R. Co. v. Kimber, 212 Ala. 102, 101 So. 827; 5 A.L.R. 1287.
Count A. of the complaint is as follows:
Count A:
Plaintiff claims of defendant the sum of $3,000 as damages for to wit: that on or about July 1, 1951, defendant entered a contract with plaintiff, under which defendant agreed, for a consideration of $186, to construct a drainway, with specified provisions, adjacent to residence owned by her at 2216 Noble Street, Anniston, Alabama. She avers that defendant did some work on said drainway, and asked for payment for the job. She avers that it was not in accordance with the provisions of the contract; was not what she wanted, and defendant admitted that he had not complied with the terms of the contract. She avers that therefore she declined to accept or pay for said job as turned out. She avers further that on, to wit: July 9, 1951 she received from defendant a letter asking that she pay for this job; that, upon receipt of said letter, she contacted defendant over phone, and, in language courteous and free of abuse, said to him, as she had stated to him before, that the work done was not according to the contract, and that she could not accept it. She avers that, thereupon, defendant, in language loud, harsh, and angry, said to her in substance: you are not the woman I thought you to be, damn you, you are going to pay me, I would not let any g. d. woman get by with that; along with other statements of similar nature.
And plaintiff avers that the purpose of this said abuse of plaintiff by defendant was to intimidate her and to harass her into payment of this alleged claim. And plaintiff avers that, as a proximate result of said abusive language from defendant, she was greatly shocked, was greatly humiliated, greatly embarrassed, greatly upset in a nervous way, made sick, the said illness being accompanied with physical pain; made to suffer mental anguish, annoyance, inconvenience, all upsetting her so completely that she was kept in a state of distress for several days subsequent thereto. And plaintiff avers that as a proximate result of said abusive language, she was damaged in the sum above claimed.
Count B. of the complaint adds the following:
And plaintiff avers that, acting under said contract, and features in connection therewith, defendant owed to plaintiff the duty of being courteous to her, to refrain from subjecting her to humiliation, or embarrassment, or such mistreatment as would tend to shock her nerves and make her sick. Plaintiff avers that defendant breached this duty when he abused her as hereinabove alleged, and as a proximate result of said breach of duty, plaintiff suffered damages, etc.
Other counts are pertinently similar to the foregoing.
This is an original petition by Hammett for mandamus to review an order of the circuit court of Calhoun County which required him to answer certain interrogatories propounded to him in a civil action pending against him in that court styled Amos v. Hammett.
Petitioner as defendant in that suit refused to answer the interrogatories propounded by plaintiff Amos, contending that no count of the complaint stated a cause of action and that, therefore, he was not required to take notice of the interrogatories.
We have said that unless a cause of action is found stated in the complaint the defendant may not be called upon to answer interrogatories propounded to him under the statute. Ex parte Nolen, 223 Ala. 213, 135 So. 337; Altman v. Barrett, 234 Ala. 234, 174 So. 293.
The basis of the suit was a telephone conversation from defendant Hammett to plaintiff, Mrs. Amos, at her home when defendant is alleged to have used abusive and insulting language to her, proximately causing illness, embarrassment and annoyance with accompanying "physical pain."
The question then is whether the alleged conduct of the defendant, when unconnected with any trespassory act and not defamatory, gives the plaintiff a right of action for her catalogued injuries alleged to have been caused by the mental or emotional disturbance of the defendant's telephone call.
The authorities are divided, with the weight of authority seemingly against such a right of action. Following are some: I Alabama Law Review 121; Kramer v. Ricksmeier, 159 Iowa 48, 139 N.W. 1091, 45 L.R.A., N.S., 928; Bartow v. Smith, 149 Ohio St. 301, 78 N.E.2d 735, 15 A.L.R.2d 94, 52 Amer.Jur. 419 et seq., § 73, Torts; Brooker v. Silverthorne, 111 S.C. 553, 99 S.E. 350, 5 A.L.R. 1283, n. 1286; Johnson v. Sampson, 167 Minn. 203, 208 N.W. 814, 46 A.L.R. 775; 138 A.L.R. 103.
The uniform decisions of this court, in line with the weight of authority, hold that such conduct is not actionable civilly and therefore impel a negative answer to the query. To be the subject of actionable damages some traditional tort such as slander or assault must be alleged. Mere words alone, however, abusive, not defamatory and unconnected with an assault cannot form the basis of a cause of action. Republic Iron Steel Co. v. Self, 192 Ala. 403, 409, 68 So. 328, L.R.A. 1915F, 516; Widener v. Alabama Great Southern R. Co., 194 Ala. 115, 69 So. 558; Louisville N. R. Co. v. Bartee, 204 Ala. 539, 86 So. 394, 12 A.L.R. 251; Maze v. Employees' Loan Society, 217 Ala. 44, 114 So. 574; III Alabama Law Review 108 (Payne, Recovery of Damages for Unpleasant Mental Stimuli).
And of course defamation — or slander — imports a publication of the opprobrious words, McDaniel v. Crescent Motors, 249 Ala. 330, 31 So.2d 343, 172 A.L.R. 204, and is actionable not because of the mental or emotional disturbance inflicted on the victim, but because of injury to the reputation. III Alabama Law Review, supra.
To be sure, the pertinent law is full of casuistries and as so aptly said in Crawford v. McMickens, 190 Ala. 102, 107, 66 So. 712, 713, the decisions relating to such questions are so conflicting as "to amount almost to anarchy". But the law in this jurisdiction as resolved by the foregoing decisions — and others which could be cited — has been exposited in such definite terms that we think it sound to abide by these previous holdings. As stated in Maze's case, supra [ 217 Ala. 44, 114 So. 575], "The action for verbal abuse is slander, and words used, when not accompanied by an assault, are not the subject of actionable damages."
Our cases which have allowed recovery for physical injuries with accompanying mental pain or emotional disturbance caused by the intentional use of insulting or abusive language are all bottomed on some traditional tort. In Engle v. Simmons, 148 Ala. 92, 41 So. 1023, 7 L.R.A., N.S., 96, decision was rested on the rationale that the injury to the wife by the use of such language in her home was the natural and probable result of the unlawful trespass to the home. Others of our cases which allow recovery are the ones against those engaged in public business and involve a violation of a duty arising out of contractual relation, such as the carrier and passenger cases and the innkeeper and guest cases. But those cases, of course, are distinguishable from the one at bar.
We are mindful of the critical comments of the law writers and some of the courts against adhering to a static principle long embedded in our jurisprudence, but much can be said on either side of the question and we think it sound to adhere to the legal concept so long established in this jurisdiction.
So considered, mandamus must be awarded.
Writ granted.
LIVINGSTON, C. J., and GOODWYN and MERRILL, JJ., concur.