Lyons v. Zale Jewelry Co., 42382

• Decision Date: 18 February 1963
• Docket Number: No. 42382,42382
• Citation: 246 Miss. 139,150 So.2d 154
• Parties: Mrs. Irene LYONS v. ZALE JEWELRY COMPANY et al.
• Court: Mississippi Supreme Court

Page 154

150 So.2d 154

246 Miss. 139

Mrs. Irene LYONS v. ZALE JEWELRY COMPANY et al.

No. 42382.

Supreme Court of Mississippi.

Feb. 18, 1963.

David A. Harris, Jackson, for appellant.

Henley, Jones & Henley, Jackson & Hazlehurst, for appellees.

KYLE, Justice.

This case is before us on appeal by Mrs. Irene Lyons, plaintiff, from a judgment of the Circuit Court of the First Judicial District of Hinds County, sustaining a demurrer filed by Zale Jewelry Company, defendant, to the plaintiff's declaration in an action for damages for extreme shock, mental anguish and nervous shock and physical pain and suffering allegedly suffered by the plaintiff as the result of willful and wanton, vile and abusive language and threats used by the Company's employee and codefendant in a telephone conversation with the plaintiff for the purpose of enforcing payment of a debt claimed to be due and owing to the defendant by the plaintiff's 23-year-old son. The damages sought to be recovered were damages suffered on account of the abusive language directed to the plaintiff during a long distance telephone conversation on March 22, 1961.

The plaintiff's declaration was filed on June 29, 1961, against Zale Jewelry Company and Louis Welch as defendants. The plaintiff alleged in her declaration that Zale Jewelry Company was a Mississippi corporation domiciled in the City of Jackson, Mississippi; that the defendant Welch at the time the plaintiff's cause of action arose was an employee of Zale Jewelry Company, but since that time had removed himself from the jurisdiction of the court and his whereabouts were unknown.

The plaintiff further alleged that she was a practical nurse by profession, and that at the time of the injury complained of she was employed in a nursing capacity by Mrs. S. F. Thigpen, the wife of S. F. Thigpen, Mayor of the Town of Heidelberg, Mississippi; and that, while engaged in the performance of her duties as a practical nurse in the Thigpen home in the Town of Heidelberg, on March 22, 1961, she received a telephone call about 6:30 o'clock P.M. from Jackson, Mississippi, from the defendant Welch, who represented himself as an attorney for Zale Jewelry Company, inquiring as to the whereabouts of plaintiff's son, Kenneth Lloyd Myrick, who owed a debt to Zale Jewelry Company. The plaintiff further alleged that she informed Welch that she did not know the exact whereabouts of her son, Kenneth, but he was 'somewhere in Laurel, Mississippi'; that Welch then became abusive and vulgar in his language toward her and said to her, 'I know dam good and well you do know where your son Kenneth is'; that plaintiff replied that she did not know where Kenneth was, and Welch then said, 'What kind of a dam mother are you, not to know where your son is. Your son owes Zale Jewelry Company a large debt and I intend to collect it.' The plaintiff alleged that she then stated to Welch that she did not know that Kenneth owed the debt, but if he did, she wanted him to pay it, that Kenneth was seeking work in Laurel, and she had not heard from him in several weeks; and Welch then shouted back to her over the phone, 'You're a dam liar * * * I know dam good and well you know where he is, and you are either going to get him to pay this debt to Zale Jewelry, or I am going to make you pay for it.' The plaintiff alleged that she replied that she was not responsible for the debts her son, who was 23 years of age, had incurred. Whereupon Welch became highly incensed and yelled even louder in an abusive tone of voice the following words: 'Listen you, g..d..bitch, if you don't pay this bill to Zale Jewelry Store, I am going to send the law down there tonight to put both you and your son into jail.'

The plaintiff alleged that, after making that statement, Welch slammed the phone down; that she then hung up the receiver, sat down in a nearby chair, and did not remember anything until three hours later when Mayor Thigpen returned to his home and found her slumped over in the chair in a state of shock; that Mayor Thigpen immediately called in Dr. William R. Eure from Bay Springs, who found the plaintiff in a state of extreme shock, writhing in bed, and in a hysterical condition. The plaintiff further alleged that, as a result of the insults and shock to which she had been subjected during her telephone conversation with Welch, she was confined to her bed and was unable to work because of extreme nervousness and severe headaches; and since that time she has been physically and emotionally unable to perform her work and earn her livelihood.

The plaintiff alleged that she was a woman 45 years of age, and was in good health earning $350 per month as a nurse at the time she received the telephone call mentioned above; that the defendant Welch, at the time he made the call was an employee of the defendant Zale and was working in the course of his employment in an effort to ascertain the whereabouts of her son and collect the debt owed by her son to the Jewelry Company; and that, under the doctrine of respondeat superior, the defendant Jewelry Company was liable, jointly and severally, with its employee for the damages the plaintiff had suffered as a result of the abusive language used by Welch toward the plaintiff.

Finally, the plaintiff alleged that, as a direct and proximate result of the vile and abusive language used by the defendant Welch during the course of the telephone conversation mentioned above, she had suffered a severe shock to her nervous system to the extent that her health and emotional well-being had been greatly impaired, her nervous system had been damaged and shattered; and she had incurred a loss of earnings in the amount of $1,100, plus medical bills in the amount of $125; that she had suffered further actual damages on account of the great mental and physical distress which she had experienced as a result of the malicious, vile and wanton language which Welch had used toward her, and that she had suffered great physical and mental pain and serious injury and agony to her feelings because of the humiliation, disgrace and indignities heaped upon her by the defendant Welch without any just cause whatsoever, and that she was also entitled to punitive damages for the willful, wanton, callous and intentional pain inflicted upon her.

The defendant Jewelry Company demurred to the declaration and assigned as ground therefor that the declaration did not state a cause of action. The circuit judge was of the opinion that the case did not rise higher than the level of actionable words and that under the pleading a common law action for damages for personal injury could not be sustained. The plaintiff declined to amend her declaration, and an order was therefore entered dismissing the plaintiff's suit with prejudice.

The only question presented for our decision on this appeal is whether or not the facts alleged in the plaintiff's declaration, if proved, were sufficient in law to support a recovery of damages for the alleged severe mental distress and emotional and physical injury resulting from the wrongful conduct of the defendant's employee Welch.

It has been frequently stated that under the common law mental anguish without actual injury will not support a recovery of damages. 25 C.J.S. Damages § 64, p. 550; Western Union Telegraph Co. v. Rogers (1891), 68 Miss. 748, 9 So. 823, 13 L.R.A. 859; Gulf & S. I. R. Co. v. Beard (1922), 129 Miss. 827, 93 So. 357; Doherty v. Mississippi 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 the conduct of the party does not amount to an assault, are not actionable. Prosser on Torts, 57, 58, and cases cited. See also Kramer v. Ricksmeier (1913), 159 Iowa 48, 139 N.W. 1091, 45 L.R.A.,N.S., 928; Republic Iron & Steel Co. v. Self (1915), 192 Ala. 403, 68 So. 328, L.R.A.1915F, 516; Brooker v. Silverthorne (1918), 111 S.C. 553, 99 S.E. 350, 5 A.L.R. 1283; Johnson v. Sampson (1926), 167 Minn. 203, 208 N.W. 814, 46 A.L.R. 772; Oehler v. L. Bamberger & Co. (1926), 4 N.J.Misc. 1003, 135 A. 71; Nowell v. Henry (1943), 194 Miss. 310, 12 So.2d 540; Walker v. Tucker (1927), 220 Ky. 363, 295 S.W. 138, 53 A.L.R. 547; Maze v. Employees' Loan Soc. et al. (1927), 217 Ala. 44, 114 So. 574; Bartow v. Smith (1948), 149 Ohio St. 301, 78 N.E.2d 735, 15 A.L.R.2d 94.

It is clear, however, that from the very earliest times the law has allowed recovery for mental distress under some circumstances, where the act of defendant producting such distress also involved an independent tort of some kind, such as a trespass on plaintiff's person or property, a negligently caused physical injury, or injury to reputation, freedom of movement, or right of privacy. In addition to these instances where damages for mental distress are regarded as 'parasitic' upon another tort, there are a number of special instances where at least some of the courts have traditionally recognized a more or less independent right to recover for emotional distress.

In Prosser on Torts, 2d Ed., Ch. 2, Sec. 11, pp. 40, 41 and 46, it is stated:

'The early cases refused all remedy for mental injury, unless it could be brought within the scope of some already recognized tort. Thus it was held that mere words however violent, threatening or insulting, did not constitute an assault, and hence afforded no ground for redress. * * * But if some independent tort, such as assault, battery, false imprisonment, or seduction could be made out, the cause of action served as a peg upon which to hang the mental damages, and recovery was freely permitted. Such 'parasitic' damages were the entering wedge.

'It has gradually become recognized that there is no magic inherent in the name given to a tort, or in any arbitrary...