Ex parte Hammett
| Decision Date | 30 June 1953 |
| Docket Number | 7 Div. 192 |
| Citation | 259 Ala. 240,66 So.2d 600 |
| Parties | Ex parte HAMMETT. |
| Court | Alabama Supreme Court |
Chas. S. Doster, Jr., Anniston, for petitioner.
Chas. Douglass, Anniston, for respondent.
Count A:
Plaintiff claims of defendant the sum of $3,000 as damages for to wit: that on or about 1, 1951, defendant entered a contract with plaintiff, under which defendant agreed, for a consideration of $186, to construct a drainway, with specified provisions, adjacent to residence owned by her at 2216 Noble Street, Anniston, Alabama. She avers that defendant did some work on said drainway, and asked did some work on said drainway, and asked for payment for the job. She avers that it was not in accordance with the provisions of the contract; was not what she wanted, and defendant admitted that he had not complied with the terms of the contract. She avers that therefore she declined to accept or pay for said job as turned out. She avers further that on, to wit: July 9, 1951 she received from defendant a letter asking that she pay for this job; that, upon receipt of said letter, she contacted defendant over phone, and, in language courteous and free of abuse, said to him, as she had stated to him before, that the work done was not according to the contract, and that she could not accept it. She avers that, thereupon, defendant, in language loud, harsh, and angry, said to her in substance: you are not the woman I thought you to be, damn you, you are going to pay me, I would not let any g. d. woman get by with that; along with other statements of similar nature.
And plaintiff avers that the purpose of this said abuse of plaintiff by defendant was to intimidate her and to harass her into payment of this alleged claim. And plaintiff avers that, as a proximate result of said abusive language from defendant, she was greatly shocked, was greatly humiliated, greatly embarrassed, greatly upset in a nervous way, made sick, the said illness being accompanied with physical pain; made to suffer mental anguish, annoyance, inconvenience, all upsetting her so completely that she was kept in a state of distress for several days subsequent thereto. And plaintiff avers that as a proximate result of said abusive language, she was damaged in the sum above claimed.
And plaintiff avers that, acting under said contract, and features in connection therewith, defendant owed to plaintiff the duty of being courteous to her, to refrain from subjecting her to humiliation, or embarrassment, or such mistreatment as would tend to shock her nerves and make her sick. Plaintiff avers that defendant breached this duty when he abused her as hereinabove alleged, and as a proximate result of said breach of duty, plaintiff suffered damages, etc.
Other counts are pertinently similar to the foregoing.
This is an original petition by Hammett for mandamus to review an order of the circuit court of Calhoun County which required him to answer certain interrogatories propounded to him in a civil action pending against him in that court styled Amos v. Hammett.
Petitioner as defendant in that suit refused to answer the interrogatories propounded by plaintiff Amos, contending that no count of the complaint stated a cause of action and that, therefore, he was not required to take notice of the interrogatories.
We have said that unless a cause of action is found stated in the complaint the defendant may not be called upon to answer interrogatories propounded to him under the statute. Ex parte Nolen, 223 Ala. 213, 135 So. 337; Altman v. Barrett, 234 Ala. 234, 174 So. 293.
The basis of the suit was a telephone conversation from defendant Hammett to plaintiff, Mrs. Amos, at her home when defendant is alleged to have used abusive and insulting language to her, proximately causing illness, embarrassment and annoyance with accompanying 'physical pain.'
The question then is whether the alleged conduct of the defendant, when unconnected with any trespassory act and not defamatory, gives the plaintiff a right of action for her catalogued injuries alleged to have been caused by the mental or emotional disturbance of the defendant's telephone call.
The authorities are divided, with the weight of authority seemingly against such a right of action. Following are some: I Alabama Law Review 121; Kramer v. Ricksmeier, 159 Iowa 48, 139 N.W. 1091, 45 L.R.A., N.S., 928; Bartow v. Smith, 149 Ohio St. 301, 78 N.E.2d 735, 15 A.L.R.2d 94, 52 Amer.Jur. 419 et seq., § 73, Torts; Brooker v. Silverthorne, 111 S.C. 553, 99 S.E. 350, 5 A.L.R. 1283, n. 1286; Johnson v. Sampson, 167 Minn. 203, 208 N.W. 814, 46 A.L.R. 775; 138 A.L.R. 103.
The uniform decisions of this court, in line with the weight of authority, hold that such conduct is not actionable...
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...Power Co. (1937), 178 Miss. 204, 173 So. 287; Beaty v. Buckeye Fabric Finishing Co. (1959), D.C., 179 F.Supp. 688; Ex parte Hammett (1953), 259 Ala. 240, 66 So.2d 600; Harned v. E-Z Finance Co. et al. (1953), 151 Tex. 641, 254 S.W.2d 81; that mere words, however offensive or insulting, when......
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Brassfield v. Jack McLendon Furniture, Inc.
...294 Ala. 430, 318 So.2d 289, 294 (1975). While it is true that words alone cannot constitute an assault, see Ex parte Hammett, 259 Ala. 240, 66 So.2d 600, 601 (1953), words accompanied by a show of force or other action may be sufficient. Id. Here, the record shows that on several occasions......
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Crew v. W.T. Smith Lumber Co.
...in the absence of further allegations and proof. See Deegan v. Neville, 127 Ala. 471, 29 So. 173. * * *' In the case of Ex parte Hammett, 259 Ala. 240, 66 So.2d 600, the basis of the suit was a telephone conversation where the defendant is alleged to have used abusive and insulting language......
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Hamner v. Bradley, 6 Div. 851
...cases and the innkeeper and guest cases. But those cases, of course, are distinguishable from the one at bar.' Ex parte Hammett, 259 Ala. 240, 242, 243, 66 So.2d 600, 602. The cases cited by this court in Engle in support of the decision clearly show that in each of them it was alleged that......