359 Mass. 244 (1971), George v. Jordan Marsh Co.

Citation359 Mass. 244, 268 N.E.2d 915
Party NameIrenee GEORGE, Jr. v. JORDAN MARSH COMPANY et al.
Case DateApril 12, 1971
CourtSupreme Judicial Court of Massachusetts

Page 244

359 Mass. 244 (1971)

268 N.E.2d 915

Irenee GEORGE, Jr.

v.

JORDAN MARSH COMPANY et al.

Supreme Judicial Court of Massachusetts, Middlesex.

April 12, 1971

Argued Nov. 5, 1970.

Joseph Stashio, Natick, for plaintiff.

Joseph P. Warner, Boston, for defendants.

Before TAURO, C.J., and SPANDLING, REARDON and QUIRICO, JJ.

Page 245

QUIRICO, Justice.

This is an action of tort to recover damages for mental anguish and emotional distress 1 resulting in two heart attacks, all allegedly caused by the defendants in attempting to collect from the plaintiff on a debt incurred by her emancipated son. The counts are identical except for the fact that the first count names Jordan Marsh Company (Jordan Marsh), and each of the second and third counts names an employee of the company, as the defendants. The case is before us on the plaintiff's appeal under G.L. c. 231, § 96, from an order of a judge of the Superior Court sustaining the defendants' demurrer to each of the three counts.

We summarize the allegations contained in the three counts of the declaration. Each count alleged that Jordan Marsh sold goods on credit to the plaintiff's emancipated son, and that thereafter each defendant (Jordan Marsh acting through [268 N.E.2d 916] the individual defendants as its agents, servants and employees) did the following: They alleged that the plaintiff had guaranteed in writing to pay her son's debt, and that they knew that she had not given such a guaranty. With the intent to cause the plaintiff emotional distress and in an attempt to intimidate the plaintiff into paying the debt which she did not owe or guarantee, they badgered and harassed her (a) by telephone calls during late evening hours, (b) by repeatedly mailing bills to her marked 'account referred to law and collection department,' (c) by letters to her stating that her credit was revoked, that the debt was charged to her personal account,

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and that late charges were being added to the debt, and (d) by 'numerous other dunning tactics.' These acts allegedly caused the plaintiff 'great mental anguish and emotional distress as intended by the defendant(s),' and as a result her health deteriorated and she suffered a heart attack. The plaintiff's attorney requested that the 'harassing tactics be discontinued' because the plaintiff did not owe the debt and because the tactics were adversely affecting her health. The defendants persisted in their 'above mentioned harassing tactics,' and as a result thereof the plaintiff suffered greater emotional distress resulting in a second heart attack. All of this has allegedly prevented the plaintiff from engaging in gainful employment and she has incurred expenses for medicine, medical attendance and nursing.

For the purpose of obtaining a decision on their demurrer, the defendants admit all of the facts well pleaded in the declaration and the necessary inferences from the facts thus admitted. Monach v. Koslowski, 322 Mass. 466, 468, 78 N.E.2d 4; Grammenos v. Zolotas, 356 Mass. 594, 597, 254 N.E.2d 789. The question to be decided by us is whether the facts and inferences thus admitted 2 constitute a cause of action in favor of the plaintiff against the defendants. Since the facts and inferences admitted by each defendant are the same it is unnecessary for us to consider the case against each defendant separately.

The arguments on both sides of this case seem to revolve on the following language in the 1897 decision in Spade v. Lynn & Boston R.R., 168 Mass. 285, 290, 47 N.E. 88, 89: 'We remain satisfied with the rule that there can be no recovery for fright, terror, alarm, anxiety, or distress of mind, if these are unaccompanied by some physical injury; and if this rule is to stand, we think it should also be held that there can be no recovery for such physical injuries as may be caused solely by such mental disturbance, where there is

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no injury to the person from without.' The Spade decision was the progenitor of a long judicial lineage in this Commonwealth. On the same day the decision was issued, it was cited as authority for the decision in White v. Sander, 168 Mass. 296, 47 N.E. 90, and it was most recently cited with approval in O'Dea v. Mitchell, 350 Mass. 163, 165, 213 N.E.2d 870. The decision has been discussed or cited, but distinguished, in a number of decisions, the most recent being SKELTON V. MASS. ELEC. CO., MASS., 263 N.E.2D 465 A.

It has been cited, discussed, questioned and criticized in numerous articles in law journals and other legal periodicals.

The present case is typically illustrative of the continuing question of the application, scope or limitations of the rule of the Spade case. The defendants rely on the holding in the Spade case and contend that it is controlling on the facts before us. The plaintiff seeks to distinguish it and to avoid its application in this case. In this respect the present case is similar to Sullivan v. H. P. Hood & Sons, Inc. 341 Mass. 216, 168 N.E.2d 80, where the court said at page 222, 168 N.E.2d at page 85: 'We [268 N.E.2d 917] have not been asked to overrule the Spade case, and we are not disposed to do so. What we have been asked to do is to draw a distinction on the ground that * * * (the defendant's acts) constituted a 'battery. " The court then concluded that there was no battery and applied the rule of the Spade case.

The rule quoted above from the Spade decision denying recovery for emotional distress where there is no injury to the person from without is but a part of the decision. It is clear from the decision in its entirety that the rule was originally intended to apply only to actions in tort for negligence. The court concluded its discussion of the rule with the following statement at p. 290, 47 N.E. at p. 89: 'It is hardly necessary to add that this decision does not reach those classes of actions where an intention to cause mental distress or to hurt the feelings is shown, or is reasonably to be inferred, as, for example, in cases of seduction, slander, malicious prosecution, or arrest, and some others. Nor do we include cases of acts done with gross carelessness or recklessness,

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showing utter indifference to such consequences, when they must have been in the actor's mind.' 3

In Smith v. Postal Tel. Cable Co. of Mass., 174 Mass. 576, 55 N.E. 380, decided approximately two and one-half years after the Spade case, the plaintiff, apparently mindful of the language quoted above from the Spade case, sought recovery for mental anguish and resulting sickness allegedly caused by the defendant's 'gross carelessness and recklessness and with utter indifference to the consequences that it knew would follow from its * * * acts.' In upholding the sustaining of a demurrer to the declaration, Chief Justice Holmes said, at p. 578, 55 N.E. at p. 380: 'If the rule (of the Spade case) is to be adhered to that there can be no recovery for sickness...

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