100 So.2d 396 (Fla. 1958), Slocum v. Food Fair Stores of Fla., Inc.

• Citation: 100 So.2d 396
• Opinion Judge: Author: Drew
• Party Name: Julia SLOCUM and Homer V. Slocum, her husband, Appellants, v. FOOD FAIR STORES OF FLORIDA, Inc., a Florida corporation, Appellee.
• Attorney: Britton, Hodges & Hyman, Miami, for appellants.
• Case Date: February 14, 1958
• Court: Supreme Court of Florida

Page 396

100 So.2d 396 (Fla. 1958)

Julia SLOCUM and Homer V. Slocum, her husband, Appellants,

v.

FOOD FAIR STORES OF FLORIDA, Inc., a Florida corporation, Appellee.

Supreme Court of Florida.

February 14, 1958

Britton, Hodges & Hyman, Miami, for appellants.

Brown, Dean, Adams & Fischer, Miami, for appellee.

DREW, Justice.

This appeal is from an order dismissing a complaint for failure to state a cause of action. Simply stated, the plaintiff sought money damages for mental suffering or emotional distress, and an ensuing heart attack and aggravation of pre-existing heart disease, allegedly caused by insulting language of the defendant's employee disrected toward her while she was a customer in its store. Specifically, in reply to her inquiry as to the price of an item he was marking, he replied: 'If you want to know the price, you'll have to find out the best

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way you can * * * you stink to me.' She asserts, in the alternative, that the language was used in a malicious or grossly reckless manner, 'or with intent to inflict great mental and emotional disturbance to said plaintiff.'

No great difficulty is involved in the preliminary point raised as to the sufficiency of damages alleged, the only direct injury being mental or emotional with physical symptoms merely dervative therefrom. Kirksey v. Jernigan, Fla., 45 So.2d 188, 17 A.L.R.2d 766. While that decision would apparently allow recovery for mental suffering, even absent physical consequences, inflicted in the course of other intentional or malicious torts, it does not resolve the central problem in this case, i. e. whether the conduct here claimed to have caused the injury, the use of insulting language under the circumstances described, constituted an actionable invasion of a legally protected right. Query: does such an assertion of a deliberate disturbance of emotional equanimity state an independent cause of action in tort?

Appellant's fundamental argument is addressed to that proposition. The case is one of first impression in this jurisdiction, and she contends that this Court should recognize the existence of a new tort, an independent cause of action for intentional infliction of emotional distress.

A study of the numerous references on the subject indicates a strong current of opinion in support of such recognition, in lieu of the strained reasoning so often apparent when liability for such injury is predicated upon one or another of several traditional tort theories. See annotation 15 A.L.R.2d 108; Wade, Tort Liability for Abusive Language, 4 Vanderbilt L.Rev., p. 63; Prosser, intentional Infliction of Mental Suffering; a New Tort, 37 Mich.L.Rev. 874; Magruder, Mental and Emotional Disturbance and the Law of Torts, 49 Harv.L.Rev. 1033. Cf. Cason v. Baskin, 155 Fla. 198, 20 So.2d 243, 168 A.L.R. 430, quoting Sec. 4, Declaration of Rights, Fla.Const. F.S.A.

Appellee urges that we are foreclosed by the case of Mann v. Roosevelt...