Fraser v. Morrison

• Decision Date: 26 April 1952
• Docket Number: NO. 2842.,2842.
• Parties: MARY B. FRASER v. ROBERT H. MORRISON, ERNEST H. WILLERS, WILSON PANG, W. F. PARKER, D. B. A. THE BLUE CROSS ANIMAL HOSPITAL; AND ROY MAY, D. B. A. CITY COLLECTORS.
• Court: Hawaii Supreme Court

39 Haw. 370

MARY B. FRASER

v.ROBERT H. MORRISON, ERNEST H. WILLERS, WILSON PANG, W. F. PARKER, D. B. A. THE BLUE CROSS ANIMAL HOSPITAL; AND ROY MAY, D. B. A. CITY COLLECTORS.

NO. 2842.

Supreme Court of the Territory of Hawai‘i.

Argued April 3, 1952.

Decided April 26, 1952.

EXCEPTIONS FROM CIRCUIT COURT FIRST CIRCUIT, HON. J. E. PARKS, JUDGE.

Syllabus by the Court

The intentional and unreasonable infliction of emotional suffering upon another which is apt to result in illness or other bodily harm may constitute a cause of action against the wrongdoer.

To permit recovery for emotional suffering which may result in illness three elements must be present: (1) the act must be intentional; (2) the act must be unreasonable; and (3) must be such that the actor should recognize it as likely to result in illness.

A creditor may properly bring pressure to bear on delinquent debtors by dunning letters, telephone calls, personal visitation or other appropriate methods; the dividing line between acts permissible and those not permissible is whether the conduct of the creditor is “without just cause or excuse and beyond all the bounds of decency.”

A collection agency is an independent contractor for whose actions the creditor is not responsible.W. F. Quinn ( Robertson, Castle & Anthony with him on the briefs) for appellant Blue Cross Animal Hospital.

S. Landau ( Landau & Fairbanks on the brief) for appellant Roy May, dba City Collectors.

B. C. Takayesu ( N. K. Chung with him on the brief) for appellee.

TOWSE, C. J., LE BARON AND STAINBACK, JJ.

OPINION OF THE COURT BY STAINBACK, J.

This is an action in tort against the two defendants. The complaint sets forth two counts. Count I alleges that sometime in April, 1949, defendant Blue Cross Animal Hospital made demands upon plaintiff for $68.25 claimed to be due from her for care of a dog; that Blue Cross Animal Hospital was informed (though it does not appear by whom) that plaintiff was ill at Queen's Hospital, that she did not own a dog, nor did she owe any money to the Blue Cross Animal Hospital; that defendant Blue Cross Animal Hospital was also informed there was another person having the same name as plaintiff living in the neighborhood and that she was a dog owner.

Count I further alleges that defendant Blue Cross Animal Hospital “failed, neglected and refused to make any adequate investigation of the matter” but assigned the claim to defendant Roy May, doing business as City Collectors, for collection, informing him that the debtor was a person by the name of Mary Fraser, living at an address which was the plaintiff's residence; that defendant Roy May failed to make an investigation but brought an action in assumpsit against the plaintiff in the district court of Honolulu on April 14, 1949; that a deputy sheriff of the Territory came to plaintiff's residence to serve a copy of this complaint and when informed by plaintiff that she didn't owe the money, that she owned no dogs and that she was ill, the deputy sheriff left and the district court complaint was never served upon the plaintiff herein; that in spite of this lack of service, defendant Roy May obtained a default judgment against plaintiff on April 18, 1949, and mailed a copy to the plaintiff.

On July 15, 1949, plaintiff engaged a district court practitioner to vacate the default judgment obtained against her by defendant Roy May on April 18; that the judgment was vacated and plaintiff had to pay $50 to the district court practitioner for his services.

Plaintiff further alleges in count I that from the second week in April, 1949, until July, 1949, the defendant Blue Cross Animal Hospital on “numerous and diverse occasions * * * continued to make telephone calls to the plaintiff at her residence and continued to make demand for payment of said sum.” Plaintiff alleges that on “several of these occasions” she again informed defendant she did not own a dog, that she did not owe any money to the Blue Cross Animal Hospital, that she was in poor health, and that the actions of the Blue Cross Animal Hospital were “having an injurious effect upon her health,” and that “all of the foregoing acts of defendants and each of them were done wilfully and intentionally for the purpose of producing mental pain and anguish in attempting to collect an alleged debt which in fact was not due and owing to the defendants.”

Count II alleges all of the foregoing facts in count I, except the allegation that the acts were done willfully and intentionally, but inserts an allegation of gross negligence and wanton disregard of the rights of plaintiff. It has an additional allegation that plaintiff called at the office of the Blue Cross to protest the said default judgment after she received a copy thereof but defendant Blue Cross insisted that plaintiff owed the money and in the presence of other persons unknown to plaintiff stated that plaintiff had personally brought a dog to Blue Cross for treatment; that all of the acts set forth in count II were the result of gross neglect evidencing a wanton disregard of the rights of plaintiff; that as a result of said negligence and disregard of plaintiff's rights, plaintiff suffered “serious physical injuries * * * grievous mental suffering and humiliation” and prays for damages consisting of “attorney's fee of Fifty Dollars ($50.00) * * * a debt of Seventy Five Dollars ($75.00) as and for medical treatment of the injury to her health * * *” and asks for judgment against the defendants and for special damages in the sum of $125, general damages in the sum of $2,500, and punitive damages in the sum of $5,000.

The two counts do not differ except the allegation in the first count is that the actions were done intentionally for the purpose of causing mental anguish in collecting a debt not due, and in the second cause of action that the same actions constituted gross negligence.

Each of the defendants demurred on several grounds, the more important grounds being failure to state a cause of action and a misjoinder of parties defendant.

The court overruled the demurrer, stating that it was a very close case and allowed counsel to file interlocutory appeals.

For many years the courts uniformly held that the infliction of mental anguish standing alone, whether done intentionally or negligently, did not give rise to a cause of action. Various objections were given to protection from mental anguish; one was that it would throw the door wide open to fictitious and fraudulent claims and to litigation in the field of trivialities and mere bad manners; that it would be absurd for the law to seek to secure universal peace of mind; that “Against a large part of the frictions and irritations and clashing of temperaments incident to participation in community life, a certain toughening of the mental hide is a better protection than law could ever be.” (Magruder, Mental and...