Brooker v. Silverthorne

• Decision Date: 16 May 1919
• Docket Number: 10199.
• Citation: 99 S.E. 350,111 S.C. 553
• Parties: BROOKER v. SILVERTHORNE.
• Court: South Carolina Supreme Court

99 S.E. 350

111 S.C. 553

BROOKER v. SILVERTHORNE.

No. 10199.

Supreme Court of South Carolina

May 16, 1919

Appeal from Common Pleas Circuit Court of Barnwell County; T. S Sease, Judge.

Action by Mrs. Cora Brooker against A. E. Silverthorne. Judgment for plaintiff, and defendant appeals. Reversed.

J. O Patterson, Jr., of Barnwell, for appellant.

A. H Ninestein, of Blackville, and Bates & Simms, of Barnwell, for respondent.

HYDRICK J.

Defendant appeals from judgment for plaintiff for $2,000 damages for mental anguish and nervous shock alleged to have been caused by abusive and threatening language addressed to plaintiff by defendant over the telephone.

Plaintiff alleges: That on October 27, 1916, she was night operator at the telephone exchange at Barnwell. That defendant called the exchange over the telephone and asked for a certain connection, which she promptly tried to get for him, but, upon her failing to do so, he cursed and threatened her in an outrageous manner, saying to her: "You God damned woman! · None of you attend to your business." That she tried to reason with him, telling him that she had done all that she could to get the connection he wanted, but he continued to abuse and threaten her, saying to her: "You are a God damned liar. If I were there, I would break your God damned neck." That the language and threat of defendant put her in great fear that he would come to the exchange and further insult her, and that she was so shocked and unnerved that she was made sick and unfit for duty, and had to take medicine to make her sleep. That for weeks afterwards, when defendant's number would call, she would become so nervous that she could not answer the call. And that her nervous system was so shocked and wrecked that she suffered and continues to suffer in health, mind, and body on account of the abusive and threatening language addressed to her by defendant.

The court overruled a demurrer to the complaint for insufficiency, and defendant answered by general denial. Plaintiff's testimony was in accord with the allegations of her complaint, and, at the close thereof, defendant moved for a nonsuit, which was refused.

Although it cannot affect the decision, because the truth of the facts alleged is concluded by the verdict, it is nevertheless due to the defendant to say that he denied emphatically using the language attributed to him, and his denial was corroborated by the testimony of his wife and a lineman of the telephone company. Defendant testified, also, that, on hearing that plaintiff was offended, he went to her and told her that he did not intend to say anything to offend her, and did not remember having done so, and asked her what he had said that offended her, and she replied that he had spoken a little harshly to her; that he told her he did not remember having done so, but, if she thought so, he was very sorry, and she seemed to be satisfied with this apology. This conversation was not denied by plaintiff.

The question is whether plaintiff stated or proved a cause of action. That question was decided in the negative in Rankin v. Railroad Co., 58 S.C. 532, 36 S.E. 997. In that case, Mrs. Rankin alleged that the railroad company's agents trespassed upon her premises, and were about to cut down some trees of great value and beauty, and, when she approached them and requested them not to do so, the foreman of the gang "cursed her and ordered her to get away from there, or he would put her in the penitentiary, and threatened to strike her, she being an old woman, and otherwise maltreated and abused her to her great damage." A demurrer to this complaint was sustained. The court considered the complaint as having attempted to set forth two causes of action, one for trespass on the plaintiff's property, and the other for the abusive and threatening language. After showing that no cause of action for trespass was stated, the question whether an action would lie for the abusive and threatening language was considered, and it was held that it would not. On appeal, this court affirmed the judgment upon the reasoning of the circuit court, and said:

"No assault upon the plaintiff is alleged, and mere words, under the circumstances stated, would not be civilly actionable."

The circuit court rested its conclusions in part upon the following quotations from Cooley on Torts:

"An act or omission may be wrong in morals, or it may be wrong in law. It is scarcely necessary to say that the two things are not interchangeable. No government has undertaken to give redress whenever an act was found to be wrong, judged by the standard of strict morality nor is it likely that any government ever will." Cooley on Torts, p. 3.

"A threat to commit an injury is also sometimes made a criminal offense, but it is not actionable private wrong. Many reasons may be assigned for distinguishing between this case and that of an assault, one of them being that the threat only promises a future injury, and usually gives ample opportunity to provide against it, while an assault must be resisted on the instant. But the principal reason, perhaps, is found in the reluctance of the law to give a cause of

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