Continental Casualty Co. v. Garrett

• Decision Date: 03 June 1935
• Docket Number: 31776
• Citation: 161 So. 753,173 Miss. 676
• Court: Mississippi Supreme Court
• Parties: CONTINENTAL CASUALTY CO. v. GARRETT

161 So. 753

173 Miss. 676

CONTINENTAL CASUALTY CO. v. GARRETT

No. 31776

Supreme Court of Mississippi

June 3, 1935

Division B

Suggestion Of Error Overruled September 16, 1935.

APPEAL from circuit court of Simpson county, HON. EDG. N. LANE Judge.

Action by W. H. Garrett against the Continental Casualty Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Affirmed.

Lotterhos & Travis, of Jackson, and J. B. Sykes, of Mendenhall, for appellant.

There is no cause of action for personal injuries resulting from spoken language, and the appellee has neither alleged nor proved a cause of action.

Restatement of the Law of Torts, sections 21 and 26; 5 A.L.R. 1286; 46 A.L.R. 775; Brooker v. Silverthorne, 99 S.E. 350, 5. A.L.R. 1283; Grimes v. Gates, 19 Am. R. 129; Rankin v. Sievern R. R. Co., 36 S.E. 997; Gaskins v. Runkle, 58 N.E. 740; Kramer v. Rickmeier, 139 M W. 1091, 45 L.R.A. (N.S.), 928; Meek v. Harris, 110 Miss. 805, 71 So. 1; Taft v. Taft, 94 Am. Dec. 389; Prude v. Sebastian, 31 So. 764; Botkin v. Cassady, 76 N.W. 722; Johnson v. Sampson, 208 N.W. 814, 46 A.L.R. 772; Whitsel v. Watts, 159 P. 401, L.R.A. 1917A, 708; Engle v. Simmons, 41 So. 1023, 7 L.R.A. (N.S.), 96; Brownback v. Frailey, 78 Ill.App. 263; Phillips v. Dickerson, 28 Am. Rep. 607; Beck v. Luers, 126 N.W. 811; Maze v. Employees Loan Society, 114 So. 574; Republic Iron & Steel Co. v. Self, 68 So. 328; Barbee v. Reese, 60 Miss. 906.

It is settled in this state that an action of slander under the actionable word statute cannot be maintained against a corporation on account of the alleged insulting language of its agent.

Dixie Fire Ins. Co. v. Betty, 101 Miss. 880, 58 So. 705; Neely v. Payne, 126 Miss. 854, 89 So. 669.

There was no proof that the plaintiff was injured by the alleged language spoken.

17 C. J., Damages, sec. 86.

Where it cannot be shown with reasonable certainty that any damage resulted from the act complained of, there can be no recovery unless there is a cause of action proved entitling plaintiff to recover nominal damages.

17 C. J., Damages, sections 88 and 89 and 152.

The appellant's objection to the testimony of Dr. Neely in the form of a hypothetical question should have been sustained.

Cates v. State, 157 So. 95.

A defendant is not liable for every consequence of his act, even assuming that his act is wrongful, but only liable for those consequences which are proximately connected and which might reasonably be assumed to follow therefrom.

17 C. J., Damages, secs. 81-82; Columbus & Greenville R. R. Co. v. Coleman, 160 So. 277.

Edwards & Edwards, of Mendenhall, for appellee.

In the case at bar we have the willful wrong of the defendant entitling the plaintiff, to damages for mental suffering disconnected from any physical injury, however, physical injury was proven in that his condition was made worse.

This case is one sounding in tort and the action is not brought under the actionable word statute but under the common law and a corporation is liable for the torts of its agents.

Rivers v. Y. & M. R. R. Co., 43 So. 471.

In cases of willful wrong punitive damages may be awarded where the injury produced was attended by circumstances of malice, insult or oppression.

Dorrah v. R. R. Co., 3 So. 36; Hollinshed v. Y. & M. V. R. R. Co., 55 So. 40.

OPINION

Griffith, J.

Appellee filed a declaration against appellant in which he charged that appellant was and is engaged in this state in the business of health and accident insurance; that appellee had for a long time carried a health and accident policy with appellant company; that appellee had been sick and was confined to his bed because of that sickness for approximately three months; that, having approached a recovery, he filed his claim for the compensation due him under said health policy; that a few days after the forwarding of said claim the appellant company sent one of its authorized agents to the home of appellee to adjust said claim; that the said agent came to the home of appellee and there began to deny the claim, and, in that connection, without provocation, used towards appellee certain insulting and abusive language, which is set out in two counts. In the first count the language charged is that the agent said to appellee, "You are a liar." In the second count the following language is charged: "If I paid that claim I would be sent down the road. A few days ago I caught a woman in bed with her shoes on stealing from the company playing sick and I am getting tired of people stealing from the company like that." And the count averred that the agent meant by said language willfully and maliciously to falsely imply and charge that appellee was presenting a feigned and fraudulent claim and was endeavoring to steal from the company. The count further averred, that in his sick and enfeebled condition, appellee was unable to defend himself, and the insulting language caused him to suffer mental anguish, and that his physical ailments were thereby aggravated and prolonged to his great damage.

Although the utterance of the language charged in the first count was proved, appellee on the trial abandoned that count, which was one in slander, and elected to stand on the second count, as for a personal injury. The allegations of the second count were also proved, together with what we regard as dependable proof, including the fair inferences to be drawn from the evidence, of physical injury, at least to some appreciable extent. There was sufficient proof of all such surrounding facts, circumstances, and conduct on the part of the agent on the occasion and at the place in question as would justify the jury in finding, as they did find, that the quoted language in the second count was not merely an uncivil argument or discussion, but was willfully intended to imply and charge and to be understood as implying and charging that the appellee's claim was a fraudulent and fictitious claim, known to appellee as such, and that appellee was engaged in the equivalent of an attempt to steal from the company, whereas the evidence is undisputed that any such implication or charge was without any foundation whatsoever in fact. It is due to the agent to state that he denied the language and disavowed any such intent, but we are, of course, bound by the verdict, so far as the facts are concerned, there being ample evidence to sustain the jury in that regard.

The great weight of authority, under the common law, is that mere words, however offensive or insulting, when the conduct of the party does not amount to an assault, are not actionable. See Johnson v. Sampson, 167 Minn. 203, 208 N.W. 814 46 A.L.R. 772; Brooker v. Silverthorne, 111 S.C. 553, 99 S.E. 350, 5 A.L.R. 1283, and the cases cited in the notes to those reprints. And it is upon this theory that appellant relies in this...