Clark v. Associated Retail Credit Men

• Citation: 105 F.2d 62
• Decision Date: 10 April 1939
• Docket Number: No. 7139.,7139.
• Parties: CLARK v. ASSOCIATED RETAIL CREDIT MEN OF WASHINGTON, D. C.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

105 F.2d 62 (1939)

CLARK v. ASSOCIATED RETAIL CREDIT MEN OF WASHINGTON, D. C.

No. 7139.

United States Court of Appeals for the District of Columbia.

Decided April 10, 1939.

Richard A. Harman and John G. Epaminonda, both of Washington, D. C., for appellant.

Milton W. King and Bernard I. Nordlinger, both of Washington, D. C., for appellee.

Before STEPHENS, EDGERTON, and VINSON, Associate Justices.

EDGERTON, Associate Justice.

Plaintiff's complaint, in its first count, charges the following facts. Plaintiff was and is the operator of a dry-cleaning establishment, and requires a good credit reputation. Defendant is an incorporated agency for investigating and reporting credit. Plaintiff suffered from arterial hypertension and had lost, but was slowly recovering, his sense of sight; in order to recover, it was necessary to avoid excitement and worry. Defendant knew these facts. Defendant agreed with a merchant to collect from plaintiff an alleged debt of $61.80. "For the purpose and with the intent of injuring the plaintiff both psychologically and physiologically," of injuring his business and rendering him unable to conduct it properly, and of "extorting" the $61.80, defendant sent plaintiff three letters which are attached as exhibits. These letters state that defendant is a member of a nation-wide organization with branches in every locality, and that it keeps credit reports of the millions of customers of its members. The letters contain the following language: "This unpaid account may jeopardize your credit standing. We do not want to enter it against your record if we can help it * * * We earnestly suggest that you protect your credit and avoid needless expense * * * Do you realize how your continued neglect of this account is going to affect your credit standing? * * * Wherever you go, whatever you do, a bad credit record will follow you like a shadow * * * Your future credit standing depends on your prompt payment of this account. Further neglect on your part will necessitate drastic action * * *" The final letter said: "This Account Must be Paid" within seven days, and threatened suit, attachment, and garnishment. The backs of the letters bore, under the heading "Some of our members," a list of some 300 concerns, most or all of which do business in Washington. The complaint charges further that with the purpose and intent of "worrying plaintiff and aggravating his condition" defendant wrote plaintiff that no reply had been received to an earlier letter; that this statement was false, as defendant knew; and that "the said acts," meaning apparently all defendant's alleged acts, "did aggravate plaintiff's condition and did injure him both psychologically and physiologically and caused him to have a relapse and severe attacks of arterial hypertension" and suffer "mental and physical agony," and to spend not less than $100 in doctor's bills and to be unable properly to attend to his business. A second count charged substantially the same acts as violations of the blackmail section of the District of Columbia Code, D.C.Code 1929, T. 6, § 42.

Defendant's demurrer was sustained, and plaintiff appeals.

Briefly, the complaint charges and the demurrer admits that by the use of words, some false and some merely minatory, defendant intentionally inflicted upon the plaintiff injuries both mental and physical, for the purpose of collecting a bill. The question is whether this conduct, with these purposes and these results, is actionable.

Defendant urges that neither Blackstone nor any local authority recognizes such a tort. But if we are in one of the "open spaces" in the law of this jurisdiction we must fill it as well as we can, with a view to the social interests which seem to be involved and with such aid as we can get from authorities elsewhere and from "logic, and history, and custom, and utility, and the accepted standards of right conduct."¹ We cannot evade this duty; for unless we establish a right in the plaintiff we establish a privilege or immunity in the defendant. The fact that "the question is novel in this jurisdiction" does not mean that the plaintiff cannot recover. Cushing v. Rodman, 65 App.D.C. 258, 259, 82 F.2d 864, 104 A.L.R. 1023.

In legal terminology, "Bodily harm is any impairment of the physical condition of another's body or physical pain or illness,"² and "the minute disturbance of the nerve centers caused by fear, shock or other emotions does not constitute bodily harm,"³ although it may produce it. The conventional terminology is used in this opinion. But lawyers have begun to learn from doctors and physiologists that "We fear not in our hearts alone, not in our brains alone, not in our viscera alone — fear influences every organ and tissue."⁴ "And what is true of fear is true in kind, though not in degree, of the lesser emotions such as worry and anxiety."⁵ The tendency of the law to ignore "mental" harm diminishes. The notion that it cannot give redress for such harm is long since exploded; it can, and it frequently does — usually in connection with harm of other kinds, as in battery, false imprisonment and defamation.⁶ But the conventional distinction between mental and physical harm still plays a large part in the law.

The law does not, and doubtless should not, impose a general duty of care to avoid causing mental distress. For the sake of reasonable freedom of action, in our own interest and that of society, we need the privilege of being careless whether we inflict mental distress on our neighbors.⁷ It is perhaps less clear that we need the privilege of distressing them intentionally and without excuse. Yet there is, and probably should be, no general principle that mental distress purposely caused is actionable unless justified. Such a principle would raise awkward questions of de minimis and of excuse.⁸ "He intentionally hurt my feelings" does not yet sound in tort, though it may in a more civilized time.

But the law has long given redress, in some circumstances, for intended mental harm without more. For centuries it has permitted recovery, under the name of assault, for intentionally-induced fear of a contact either harmful or offensive. In such cases the plaintiff has not been required to show that the fear produced physical consequences. The legally protected interest in bodily integrity has not been infringed, but it has been threatened; and the prospect of physical consequences, though no such consequences followed, has been accepted as adding to the intended mental disturbance a physical color sufficient to call for redress.

For a long time the assault cases stood practically alone; but in recent years an analogous principle has begun to develop. Several cases in which there was no physical harm and no assault have allowed recovery for intended mental harm which was serious enough so that it might have been found that defendant's acts had created a risk of physical illness. In Nickerson v. Hodges, 146 La. 735, 84 So. 37, 9 A.L.R. 361, defendant, as a practical joke, induced plaintiff to think and announce that she had found a pot of gold. Resulting "mental and physical suffering" was alleged, but apparently only mental suffering and humiliation were proved. Some of the cases involved attempts to collect debts. In Barnett v. Collection Service Company, 214 Iowa 1303, 242 N.W. 25, defendant sent to plaintiff, an employed widow, a series of letters threatening suit and also to "bother" plaintiff's employer "until he is so disgusted with you that he will throw you out the back door. * * * We will tie you up tighter than a drum." The letters also suggested that plaintiff was as bad as a criminal. There was "no claim of any physical injury" but plaintiff became nervous and could not work, suffered mental pain, cried and had to go to bed. A judgment for the plaintiff was affirmed, on the ground that defendant's acts had been done for the "purpose of harassing and annoying the appellee mentally." In LaSalle Extension University v. Fogarty, 126 Neb. 457, 253 N.W. 424, 425, 91 A.L.R. 1491, a man who had signed an application for a correspondence course received some thirty letters, which varied from mild reminders and threats to garnish wages to accusations of moral turpitude "well calculated to coerce the defendant into payment."⁹ Plaintiff was allowed to recover for worry, humiliation and loss of sleep, on the theory that the letters were written for the purpose of harassing him until he paid. Maze v. Employees' Loan Society, 217 Ala. 44, 114 So. 574, may be distinguished on the ground that defendant's conduct was less obnoxious, quantitatively at least, and involved less risk of harm. There a debtor was denied recovery against a creditor who had made repeated demands for payment, one of them in "a gross, rude, and insulting manner." Plaintiff alleged resulting "mental distress and anxiety and great physical inconvenience," but, as the court observed, there was no physical injury.¹⁰ "We would expect * * * the gradual emergence of a broad principle somewhat to this effect: that one who, without just cause or excuse, and beyond all the bounds of decency, purposely causes a disturbance of another's mental and emotional tranquillity of so acute a nature that harmful physical consequences might be not unlikely to result, is subject to liability in damages for such mental and emotional disturbance even though no demonstrable physical consequences actually ensue."¹¹ The advantage to society of preventing such harm seems greater than the advantage of leaving ill-disposed persons free to seek their happiness in inflicting it.

In the present case the shock which defendant intentionally inflicted not only risked, but actually caused, physical harm. In such circumstances, recovery has repeatedly been allowed.¹² A leading case is Wilkinson v. Downton, 1897 2 Q.B. 57, in which defendant, as a practical joke, told plaintiff that her husband was smashed up in an accident; the...