Hamner v. Bradley, 6 Div. 851

• Decision Date: 07 September 1972
• Docket Number: 6 Div. 851
• Parties: Ruby B. HAMNER v. D. G. BRADLEY. --A.
• Court: Alabama Supreme Court

Page 81

270 So.2d 81

289 Ala. 624

Ruby B. HAMNER v. D. G. BRADLEY.

6 Div. 851--A.

Supreme Court of Alabama.

Sept. 7, 1972.

Rehearing Denied Nov. 22, 1972.

Henley & Northington, Northport, for appellant.

Bradley, Arant, Rose & White, Hobart A. McWhorter, Jr., and Frank M. Young, III, Birmingham, for appellee.

COLEMAN, Justice.

Plaintiff appeals from a voluntary non-suit induced by the ruling of the trial court sustaining defendant's demurrer to the complaint. The question for decision is whether the complaint states a cause of action.

The substance of count one is as follows: Defendant is employed by an insurance company. In 1967, plaintiff applied for a hospitalization insurance policy which was issued under date of November 2, 1967. The insurer paid a prior claim without questioning coverage under the policy.

Plaintiff was hospitalized in July, 1969. Expenses for her treatment were covered by the policy. About July 31, 1969, plaintiff applied for benefits due her under the policy. On September 4, 1969, defendant came to plaintiff's home concerning plaintiff's claim. Plaintiff alleges that defendant:

'. . . began to deny the said claim of the Plaintiff and without provocation, he used towards plaintiff certain insulting, rough and abusive language and talked in a threatening and obnoxious tone of voice, stating to her among other things, as follows, viz:

'4.02. 'I just came to tell you that your premiums weren't going to be paid any on them and they are going to cancel your insurance.'

'4:03. 'I will write you a receipt of what premiums you have paid.'

'4:04. 'You must have told story to get policy because you had a hysterectomy any an appendectomy before you applied for the policy with us.'

'4:05. 'You have been treated for high blood pressure and I don't know why you told a story and got the policy.'

'4:06. 'You told a story to get this insurance and you have been treated for these things and high blood pressure.'

'4:07. 'I have been to Dr. Cone's and saw your chart.''

Defendant's tone of voice was rough and high. He insinuated that she was a liar when she told the agent that she did not have high blood pressure and had never had an appendectomy or hysterectomy. Defendant meant to wilfully and maliciously falsely imply tht plaintiff had falsely and fraudulently applied for insurance 'with the defendant,' and that plaintiff made such false representations with actual intent to deceive 'the defendant' into issuing her a policy, and defendant charged plaintiff with such fraud and deceit in making application for the policy.

Plaintiff denied to defendant that she had given 'said agent' any false information on said application, and she requested defendant to see her doctor who treated and examined her on prior occasions.

Defendant then and there knew of her sensitive and serious condition and that she was still recovering from her operation and illness. In complete disregard of this and, without legal cause or just excuse, he continued to berate and question plaintiff about twenty minutes in a rough, high voice; and he continued to insinuate that plaintiff had lied to defendant in her application for the policy.

Plaintiff avers that defendant's 'allegations' were without any foundation in fact, and that plaintiff has never had an appendectomy or hysterectomy, and, if she had ever suffered from high blood pressure, she never knew it, 'and in fact, she had not suffered from any significant high blood pressure.'

Plaintiff avers that, as a direct and proximate consequence '. . . of the said actions . . .' of defendant, she suffered the following injuries, viz.: she became nauseous, faint, suffered stomach upset; her digestive system or kidneys became upset; she suffered mental and physical anguish; she was unable to rest or sleep, her mental and physical condition was aggravated, worsened and her recovery was prolonged; she was vexed, worried, and became very nervous, scared, frightened, and excited; she became dizzy; her eyes became bleary and felt like they had a skim over them; her legs and knees hurt and her heart beat faster.

In substance, count two is to the same effect as count one.

Plaintiff summarizes her contentions as follows:

'Finally, the plaintiff submits that the gravaman of her complaint is that she was entitled to the quiet, peaceful enjoyment of her home, and that when the defendant came into her home and called her a liar and told her that they were not going to pay the policy and threatened to cancel it, and charged the plaintiff with fraud in making application for the policy, coupled with the fact that the plaintiff was recovering from an operation for her illness and he knew it, His words alone were an actionable tort.' (Emphasis Supplied)

To support this contention, plaintiff strongly relies on Engle v. Simmons, 148 Ala. 92, 41 So. 1023, wherein this court held that the complaint stated a cause of action and that the trial court had erred in sustaining demurrer to the complaint. ¹ This court said:

'. . .. Does the complaint as amended state a cause of action? It is a sound and just principle of law that, where one in violation of the law does an act which in its consequences is injurious to another, he is liable for the damages caused by such wrongful act.--Van Norden v. Robinson, 45 Hun (N.Y.) 567. The allegations of the complaint show that the defendant entered into the dwelling house of the plaintiff, who was at the time far advanced in pregnancy, and in the absence of her husband, and with the evident purpose of collecting a claim against the husband, after being informed by the plaintiff that her husband was absent from home, and after having been requested by plaintiff to leave the premises, he refused without legal cause or good excuse to do so, persisting in interrogating the plaintiff and in taking an inventory of her household effects, making at the time threats of what he intended to do, whereby the plaintiff was thrown into a state of nervous excitement, bringing on labor pains attended with unusual severity continuing for three days, and resulting in the premature birth of a child, and causing a physical disability to the plaintiff which for a long time incapacitated her for the discharge of her household duties. That the defendant violated the law in his refusal to immediately leave the premises when ordered to do so, there can be no question, and that his subsequent conduct as alleged was wrongful is equally certain. The action was properly brought in the name of the wife.--ss 2523, 2527, Code 1896. The suit is for an injury to the plaintiff, and not for a trespass to the realty as supposed by appellee. It is wholly immaterial under the circumstances alleged whether the ownership of the premises was in the plaintiff or her husband, although it is averred that the possession of the dwelling was held under a contract of lease made by the wife. In Watson v. Dilts, (116) (Iowa) (249,) 89 N.W. 1068, 57 L.R.A. (559,) 561, 93 Am.St.Rep. 239, it was said: 'Nor does it matter, in our judgment, that the trespass was committed on property belonging to the husband. It was her home as well as that of her husband, and any unlawful entry or invasion thereof which produced physical injury to her was a wrong for which she ought to recover.'' (148 Ala. at 94, 95, 41 So. at 1023)

As this court has stated, Engle is bottomed on the traditional tort of trespass.

'Our cases which have allowed recovery for physical injuries with accompanying mental pain or emotional disturbance caused by the intentional use of insulting or abusive language are all bottomed on some traditional tort. In Engle v. Simmons, 148 Ala. 92, 41 So. 1023, 7 L.R.A.,N.S., 96, decision was rested on the rationale that the injury to the wife by the use of such language in her home was the natural and probable result of the unlawful trespass to the home. Others of our cases which allow recovery are the ones against those engaged in public business and involve a violation of a duty arising out of contractual relation, such as the carrier and passenger 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 defendant had committed a trespass against property or a person or both.

In Watson v. Dilts, supra, it is said that the petition alleged that, at 11 p.m., after plaintiff and her family had gone to bed, defendant wrongfully and stealthily entered plaintiff's home and went upstairs; that identity of defendant was not known to plaintiff at the time; that plaintiff called to her husband to follow defendant, which the husband did; and that '. . . she followed her husband up to the room where the defendant was found, and where she found him and her husband in what appeared to her to be an encounter, and an assault upon her husband; . . ..' (89 N.W. at 1068)

In Hill v. Kimball, 76 Tex. 210, 13 S.W. 59, 7 L.R.A. 618, it is said the petition alleges:

'. . . that the wife was well advanced in pregnancy, and that defendant knew the fact, and that he was also aware that any undue excitement to a lady in that condition was likely to produce a serious injury to her health; that, notwithstanding these facts, he came to plaintiff's house, and in the yard, and in the immediate presence of the wife, he assaulted two negroes in a boisterous and violent manner, and that the assault was accompanied with profane language, and resulted in drawing blood. . . ..' (76 Tex. at 210, 13 S.W. at 59, 7 L.R.A. at 619)

In Brownback v. Frailey, 78 Ill.App. 262, it is said that the second count is substantially as the first, and that the first count is in substance that the defendant:

'. . . in the night time, wrongfully entered the house of the plaintiff in the absence of her husband, defendant well...