George v. Jordan Marsh Co.

• Citation: 268 N.E.2d 915,46 A.L.R.3d 762,359 Mass. 244
• Parties: , 46 A.L.R.3d 762 Irenee GEORGE, Jr. v. JORDAN MARSH COMPANY et al.
• Decision Date: 12 April 1971
• Court: United States State Supreme Judicial Court of Massachusetts

Page 915

268 N.E.2d 915

359 Mass. 244, 46 A.L.R.3d 762

Irenee GEORGE, Jr. v. JORDAN MARSH COMPANY et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Nov. 5, 1970.

Decided April 12, 1971.

Joseph Stashio, Natick, for plaintiff.

Joseph P. Warner, Boston, for defendants.

Before TAURO, C.J., and SPANDLING, REARDON and QUIRICO, JJ.

QUIRICO, Justice.

This is an action of tort to recover damages for mental anguish and emotional distress ¹ resulting in two heart attacks, all allegedly caused by the defendants in attempting to collect from the plaintiff on a debt incurred by her emancipated son. The counts are identical except for the fact that the first count names Jordan Marsh Company (Jordan Marsh), and each of the second and third counts names an employee of the company, as the defendants. The case is before us on the plaintiff's appeal under G.L. c. 231, § 96, from an order of a judge of the Superior Court sustaining the defendants' demurrer to each of the three counts.

We summarize the allegations contained in the three counts of the declaration. Each count alleged that Jordan Marsh sold goods on credit to the plaintiff's emancipated son, and that thereafter each defendant (Jordan Marsh acting through the individual defendants as its agents, servants and employees) did the following: They alleged that the plaintiff had guaranteed in writing to pay her son's debt, and that they knew that she had not given such a guaranty. With the intent to cause the plaintiff emotional distress and in an attempt to intimidate the plaintiff into paying the debt which she did not owe or guarantee, they badgered and harassed her (a) by telephone calls during late evening hours, (b) by repeatedly mailing bills to her marked 'account referred to law and collection department,' (c) by letters to her stating that her credit was revoked, that the debt was charged to her personal account, and that late charges were being added to the debt, and (d) by 'numerous other dunning tactics.' These acts allegedly caused the plaintiff 'great mental anguish and emotional distress as intended by the defendant(s),' and as a result her health deteriorated and she suffered a heart attack. The plaintiff's attorney requested that the 'harassing tactics be discontinued' because the plaintiff did not owe the debt and because the tactics were adversely affecting her health. The defendants persisted in their 'above mentioned harassing tactics,' and as a result thereof the plaintiff suffered greater emotional distress resulting in a second heart attack. All of this has allegedly prevented the plaintiff from engaging in gainful employment and she has incurred expenses for medicine, medical attendance and nursing.

For the purpose of obtaining a decision on their demurrer, the defendants admit all of the facts well pleaded in the declaration and the necessary inferences from the facts thus admitted. Monach v. Koslowski, 322 Mass. 466, 468, 78 N.E.2d 4; Grammenos v. Zolotas, 356 Mass. 594, 597, 254 N.E.2d 789. The question to be decided by us is whether the facts and inferences thus admitted ² constitute a cause of action in favor of the plaintiff against the defendants. Since the facts and inferences admitted by each defendant are the same it is unnecessary for us to consider the case against each defendant separately.

The arguments on both sides of this case seem to revolve on the following language in the 1897 decision in Spade v. Lynn & Boston R.R., 168 Mass. 285, 290, 47 N.E. 88, 89: 'We remain satisfied with the rule that there can be no recovery for fright, terror, alarm, anxiety, or distress of mind, if these are unaccompanied by some physical injury; and if this rule is to stand, we think it should also be held that there can be no recovery for such physical injuries as may be caused solely by such mental disturbance, where there is no injury to the person from without.' The Spade decision was the progenitor of a long judicial lineage in this Commonwealth. On the same day the decision was issued, it was cited as authority for the decision in White v. Sander, 168 Mass. 296, 47 N.E. 90, and it was most recently cited with approval in O'Dea v. Mitchell, 350 Mass. 163, 165, 213 N.E.2d 870. The decision has been discussed or cited, but distinguished, in a number of decisions, the most recent being SKELTON V. MASS. ELEC. CO., MASS., 263 N.E.2D 465^A.

It has been cited, discussed, questioned and criticized in numerous articles in law journals and other legal periodicals.

The present case is typically illustrative of the continuing question of the application, scope or limitations of the rule of the Spade case. The defendants rely on the holding in the Spade case and contend that it is controlling on the facts before us. The plaintiff seeks to distinguish it and to avoid its application in this case. In this respect the present case is similar to Sullivan v. H. P. Hood & Sons, Inc. 341 Mass. 216, 168 N.E.2d 80, where the court said at page 222, 168 N.E.2d at page 85: 'We have not been asked to overrule the Spade case, and we are not disposed to do so. What we have been asked to do is to draw a distinction on the ground that * * * (the defendant's acts) constituted a 'battery. " The court then concluded that there was no battery and applied the rule of the Spade case.

The rule quoted above from the Spade decision denying recovery for emotional distress where there is no injury to the person from without is but a part of the decision. It is clear from the decision in its entirety that the rule was originally intended to apply only to actions in tort for negligence. The court concluded its discussion of the rule with the following statement at p. 290, 47 N.E. at p. 89: 'It is hardly necessary to add that this decision does not reach those classes of actions where an intention to cause mental distress or to hurt the feelings is shown, or is reasonably to be inferred, as, for example, in cases of seduction, slander, malicious prosecution, or arrest, and some others. Nor do we include cases of acts done with gross carelessness or recklessness, showing utter indifference to such consequences, when they must have been in the actor's mind.' ³

In Smith v. Postal Tel. Cable Co. of Mass., 174 Mass. 576, 55 N.E. 380, decided approximately two and one-half years after the Spade case, the plaintiff, apparently mindful of the language quoted above from the Spade case, sought recovery for mental anguish and resulting sickness allegedly caused by the defendant's 'gross carelessness and recklessness and with utter indifference to the consequences that it knew would follow from its * * * acts.' In upholding the sustaining of a demurrer to the declaration, Chief Justice Holmes said, at p. 578, 55 N.E. at p. 380: 'If the rule (of the Spade case) is to be adhered to that there can be no recovery for sickness due to the purely internal operation of fright caused by a negligent act, it cannot be avoided by calling the negligence gross and alleging that the defendant ought to have known that the result complained of would follow his act. * * * (T)o allow it to be avoided by such an allegation would be to do away with it. The decisions leave open the question whether if the harm to the plaintiff was actually foreseen and intended that would make a difference. It is possible that in some cases motive and actual intent would be more considered in this Commonwealth than they would be in England. That question may be left until it arises' (emphasis supplied). For indications that notwithstanding the Spade rule a defendant may be liable for emotional distress intentionally caused by him even though there be 'no injury to the person from without,' see Sullivan v. H. P. Hood & Sons, Inc., 341 Mass. 216, 222--223, 168 N.E.2d 80, and Mills v Keeler, 351 Mass. 502, 503, 222 N.E.2d 749.

That question which Chief Justice Holmes said in 1899 'the decisions leave open' and 'may be left until it arises,' is still open and has now arisen for the first time for decision by this court. ⁴ We start our discussion of this question by holding that the rule laid down in the Spade case does not apply to bar recovery for emotional distress resulting from acts intended to produce such results, or to bar recovery for physical injuries resulting from emotional distress thus produced. The defendants' contention to the contrary is rejected. Whatever may be said for or against the rule of the Spade case, it has no application to this case.

The defendants argue that 'there is no authority under existing Massachusetts law for the proposition that the intentional infliction of mental or emotional distress provides a separate and distinct basis of tort liability.' That is true only because the precise question has never been presented to this court for decision. That argument is therefore no more valid than would be an argument by the plaintiff that there is no record of any Massachusetts law denying recovery on such facts. No litigant is automatically denied relief solely because he presents a question on which there is no Massachusetts judicial precedent. It would indeed be unfortunate, and perhaps disastrous, if we were required to conclude that at some unknown point in the dim and distant past the law solidified in a manner and to an extent which makes it impossible now to answer a question which had not arisen and been answered prior to that point. The courts must, and do, have the continuing power and competence to answer novel questions of law arising under ever changing conditions of the society which the law is intended to serve.

The defendants also argue that 'this Court has heretofore allowed recovery for these items of damages (mental or emotional distress) only in the cases where the defendant has committed an independent and separate tort recognized at common law.' This, if true, is basically the same argument, or a subsidiary of the same argument, discussed and...