Harned v. E-Z Finance Co., E-Z

Decision Date07 January 1953
Docket NumberNo. A-3712,E-Z,A-3712
Citation254 S.W.2d 81,151 Tex. 641
PartiesHARNED v.FINANCE CO. et al.
CourtTexas Supreme Court

Mullinax, Wells & Ball and William D. Kimbrough, Dallas, for appellant.

H. B. Houston, Mays & Lea and R. D. Hardy, Dallas, for appellees.

Edward C. Fritz, Dallas, amicus curiae.

BREWSTER, Justice.

This cause is here on a question certified by the Court of Civil Appeals at El Paso, pending its disposition of a motion for rehearing filed by the appellant, W. R. Harned. On original consideration it affirmed the judgment of the County Court at Law of Dallas County dismissing the case for want of jurisdiction.

Harned sued four loan companies and one insurance company, appellees, for statutory penalties of $137.50 as usurious interest, which he alleged appellees conspired to charge and collect from him. He sought recovery of an additional sum of $150 on these allegations:

'In separate and concerted action defendants and each of them constantly from the first time W. R. Harned missed a payment on any loan, hounded and harassed W. R. Harned and his wife for additional payments of usurious interest after defendants and each of them had already received more money than they were entitled to receive. Defendants and each of them made numerous telephone calls each week to the home and to the place of business of W. R. Harned. They threatened to take up a collection in the neighborhood to apply on the usurious interest payments which they claimed were due to them. They threatened to cause plaintiff to lose his job. They called during such hours as they knew W. R. Harned was sleeping and would speak to his wife in abusive language, threatening and intimidating her.

'As a direct and proximate result of the illegal and fraudulent charges of usurious interest and the willful, wanton, harassment made in an effort to collect additional charges of usurious interest, W. R. Harned and his wife were each caused great mental pain and anguish. Plaintiff and his wife were worried about how they could keep up the payments because they were anxious to pay all of their just debts and did not realize that the claims made by defendants were not legal. They feared constantly that the harassment of the defendants would cause Harned to lose his job. They could scarcely find an hour's peace because at home or wherever they went, defendants and each of them were after them or at least they feared with good cause that defendants and each of them were after them. The Harneds did not have the money to pay the aforesaid illegal claims and they were deeply grieved because they were in what seemed to them a hopeless economic state enslaved to defendants and each of them for the rest of their lives, never able to establish credit, always in danger of losing their economic support and always under the threat of losing the small amount of property they had managed to accumulate.

'Par. 24. Defendants and each of them were and are guilty of wanton, willful, and malicious harassment and persecution of W. R. Harned and his wife and defendants and each of them should be compelled to pay to plaintiff the sum of at least one hundred ($100.00) dollars as damages for the mental pain and anguish which they have suffered at the hands of defendants. Furthermore, defendants and each of them should be compelled to pay to plaintiffs fifty ($50.00) dollars as exemplary or punitive damages.'

Appellees excepted to these allegations as follows:

'The allegations as to the alleged harassing and persistent collection calls and communications on which plaintiff predicates his demand for damages for mental anguish, and the corresponding demands for exemplary damages, are insufficient in law to state a cause of action, there being no showing in the facts alleged of any breach of any duty or the invasion of a right or the commission of an unlawful act.'

The trial court sustained this exception. The only amendment offered by Harned was that the alleged wrongful acts of appellees were intentional and wilful. Concluding that Harned's petition as amended was insufficient to meet appellees' exceptions and pleas to the jurisdiction of the court, the trial court denied the amendment and dismissed the case.

On its own motion the Court of Civil Appeals certified this question:

'Did we err in concluding that the above quoted paragraphs of plaintiff's petition stated no cause of action?'

The Court of Civil Appeals recognized in its tentative opinion that our general rule is that damages cannot be recovered for mental suffering when there is no physical injury, no injury to property, no other element of actual damages. Gulf C. & S. F. Ry. Co. v. Trott, 86 Tex. 412, 25 S.W. 419; Renfro Drug Co. v. Lawson, 138 Tex. 434, 160 S.W.2d 246, 146 A.L.R. 732. This is the rule at common law; and it is supported by the great weight of authority in our several American jurisdictions.

Observing that Renfro Drug Co. v. Lawson, supra, lists some recognized exceptions to the general rule, the Court of Civil Appeals says that 'appellant would add another, i. e., where the mental anguish is intentionally caused although the party so causing it has been guilty of no other independent tort. Appellant's position is sustained by several authorities from other jurisdictions * * * and by at least two distinguished legal writers cited by him. See Clark v. Association Retail Credit Men of Washington, D. C., (70 App.D.C., 183) 105 F.2d 62, U.S.C.A. for District of Columbia; Barnett v. Collection Service Co., 214 Iowa 1303, 242 N.W. 25; LaSalle Extension University v. Fogarty, 126 Neb. 457, 253 N.W. 424 (91 A.L.R. 1491); Herman Saks & Sons v. Ivey, Court of Appeals, (26) Ala. (App. 240), 157 So. 265; Prosser, Intentional Infliction of Mental Suffering, A New Tort, 37 Mich. Law Review, 874; Magruder, Mental and Emotional Disturbances in The Law of Torts, 49 Harvard Law Review, 1033'. After citing authorities, including Sisler v. Mistrot, Tex.Civ.App., 192 S.W. 565, which it says sustain the action of the trial court, the court said, 'It is our conclusion, as said in Sisler v. Mistrot, supra, that 'we cannot become, as we view it, the first court (in Texas) to open this hitherto closed door', to this new kind of tort action.'

In Barnett v. Collection Service Co., supra, defendant resorted to high-pressure methods to collect $28.75 allegedly due it by plaintiff, a widow; it sent her a series of form letters, which were 'coarse' and 'vindictive;' they contained threats of what would happen to her if payment was not made, but there was no threat of physical violence or injury. She alleged that they were sent wilfully, maliciously and with intent to extort payment of a claim which defendant knew could not legally be collected. Her only claim for damages was for mental pain, anguish and humiliation suffered by reason of the letters. After pointing out that plaintiff's case was not based on any claim of negligence or of physical injury or any attempt to commit physical injury, the Supreme Court of Iowa said (214 Iowa 1303, 242 N.W. 28), 'The rule seems to be well-established where the act is willful or malicious, as distinguished from being merely negligent, that recovery may be had for mental pain, though no physical injury results. In such a case the door to recovery should be opened but narrowly and with due caution.' (Italics ours.) One authority cited in support of that holding is Davidson v. Lee, Tex.Civ.App., 139 S.W. 904, error denied, which we shall discuss later in this opinion.

In LaSalle Extension University v. Fogarty, supra (126 Neb. 457, 253 N.W. 425) the allegations as to 37 collection letters sent Fogarty, together with their purpose and effect, were very similar to those in the Barnett case, supra. The Supreme Court of Nebraska said there was no decision of its own 'exactly in point', then planted itself squarely on the Barnett case and held the letters actionable. It drew a distinction between acts wilfully and maliciously done and acts negligently done, and held that the letters 'were written designedly and for the purpose of harassing the defendant until he would meet their demands, whether the sum claimed was justly due or not.'

In Herman Saks & Sons v. Ivey, supra, by an Alabama intermediate court, the trial court had granted plaintiff a new trial on a jury verdict of $1 on her allegation that by reason of a letter mailed her by defendant she was 'greatly shocked, frightened, humiliated, and embarrassed, was made nervous, made sick and sore for a long period of time, and caused to suffer great mental anguish and was annoyed and inconvenienced.' Stating that the evident purpose of the letter was to frighten her into paying her account and that the effect 'the receipt of such a letter would have upon a delicate, refined, nervous, gentlewoman is of easy inference', the court held she was entitled to substantial damages and that, therefore, the trial court properly granted her a new trial.

Clark v. Associated Retail Creditmen, supra (70 App.D.C. 183, 105 F.2d 63), does not support appellant's contention. Plaintiff alleged that he suffered from arterial hypertension and had lost, but was slowly recovering, his sense of sight; that, in order to recover, he had to avoid excitement and worry; that defendant knew these facts, notwithstanding which it sent him three letters not only to extort $61.80 allegedly due another but for the purpose and with the intent of injuring him both mentally and physically; that at least one of these letters was sent with the purpose of 'worrying plaintiff and aggravating' his condition; that it did injure him both mentally and physically 'and caused him to have a relapse and severe attacks of arterial hypertension'. Conceding that it might be in one of the 'open spaces' of the law (in response to suggestion by counsel that neither Blackstone nor any local authority recognizes such a tort as alleged by plaintiff), the court argues at...

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