Opinion
No. 31076
Decided March 31, 1948.
Slander — Profane and obnoxious epithets in public, not actionable — No menacing conduct, attitude constituting assault, threat or putting in fear and terror — Damnum absque injuria.
Profane and obnoxious epithets not amounting to slander and directed toward a person on a public sidewalk are at most damnum absque injuria and do not give rise to a cause of action, where such epithets are unaccompanied by any menacing action or attitude constituting an assault, and do not constitute a threat or put the person toward whom the epithets are directed in fear and terror.
APPEAL from the Court of Appeals for Huron county.
Kathryn V. Bartow, appellee herein (hereinafter referred to as plaintiff), instituted an action in the Court of Common Pleas of Huron county against R.D. Smith, appellant herein (hereinafter referred to as defendant).
Without the caption, prayer and verification, the amended petition reads as follows:
"Plaintiff Kathryn V. Bartow, for her cause of action against the defendant, R.D. Smith, represents:
"That on Saturday afternoon, September 8, 1945, in the city of Norwalk, Huron county, Ohio, in front of No. 31 East Main street, in the presence and hearing of many people, the defendant in a loud voice and malicious manner, falsely slandered plaintiff in that he called her a 'God damned son of a bitch' and 'a dirty crook,' repeating the slanderous and defamatory statements many times.
"That defendant knew plaintiff was advanced in pregnancy, highly nervous and very sensitive, and chose the time and place to wreak the maximum of opprobrium upon her.
"That by reason of defendant's language as aforesaid plaintiff was greatly shocked and humiliated, her nerves were deranged, her health impaired and her rest disturbed, and she believes and so alleges that her nerves will continue to be deranged, her health impaired and her rest disturbed, for a considerable time in the future, the exact termination whereof she is not now able to ascertain, all to her great damage in the sum of $5,000."
To such petition defendant filed a general denial. The cause came on for trial, and, after the jury was sworn, counsel for plaintiff in the opening statement to the jury read the amended petition and, in addition, stated:
"Now we expect the evidence to show that Mr. and Mrs. Bartow owned a farm in Hartland township, I think; that while they were living in it they sold it to Mr. Smith and his wife, or at least to Mr. Smith, and that a disturbance and some wrangling grew out of that sale; that one day while that wrangling was still going on, and while the Bartows were still in possession of the farm — I think they were still in possession of the farm — Mr. Smith saw Mrs. Bartow on the streets of Norwalk on Saturday afternoon; that Mrs. Bartow was accompanied by her mother and the two were walking on the street; that Mr. Smith stepped right up to her and then started on this former wrangling and, in the presence of the people that were walking to and fro on either side of the street, in a loud voice and with a flushed face he used these words, and used them repeatedly.
"Now we claim the evidence will show that Mrs. Bartow was advanced in pregnancy about seven months, and he knew from the looks of the woman that she was and despite that he used that time and that place to shout out to her those slanderous words.
"The words attracted the attention of the people walking by, and even attracted the attention of the people on the other side of the street, over in front of the store operated by Wesley Price Son, the automobile accessory store, and they stopped and looked over to see what was going on. Mrs. Bartow's mother took her quickly by the arm and rushed her into Roll and Overhuls store. The evidence will show that at least if he did not follow her with his footsteps he did with his voice into this store and continued these slanderous remarks that he had made; and knowing Mrs. Bartow was advanced in pregnancy we claim he designed sometime when he could to use slanderous remarks like that for the purpose of hurting her, for the purpose of causing her physical injury, and that the remarks did cause her physical injury.
"The evidence will show that for several weeks after that she could not quit sobbing, she would sob day and night, and would waken in the night sobbing. She consulted a doctor and went to the doctor time and again asking of him help because of her nervousness. Now fortunately she went through her childbirth without any adversity as far as the child and mother was concerned, but that was some weeks after, five, six or seven weeks perhaps, we are not just sure what it was, but we think the evidence will show that these slanderous words were used in a public place, were used maliciously, and the evidence will show Mr. Smith pitched his voice as high as he could and his face was flushed as red as could be as he shouted out these words and some others, but of a kindred character.
"Now without question we regard the evidence to be of that kind to show that he knew she was pregnant, he saw her out at the farm and knew she was pregnant; he knew her stomach protruded as it would after being seven months advanced in pregnancy. Now these words caused this girl to go to a doctor and the doctor treated her and she had expenses by reason of the injuries she suffered and the injuries were suffered because of these words, therefore we claim this is a case that shows not only slanderous remarks but that injuries resulted from them which caused monetary expense to Mrs. Bartow. And that, ladies and gentlemen, is what we expect to prove."
Before any testimony was taken at the trial, counsel for defendant moved the court to render judgment in favor of the defendant and to dismiss the plaintiff's amended petition, on the opening statement of counsel for the plaintiff and the allegations of the amended petition combined, which motion the court sustained.
The Court of Appeals reversed the judgment of the Court of Common Pleas and held that plaintiff, on the amended petition and opening statement, was entitled to submit her evidence to the jury.
The case is before this court on appeal from the judgment of the Court of Appeals, a motion to certify the record having been allowed.
Messrs. Miller Miller, for appellee.
Messrs. Young Young, for appellant.
Obviously the theory upon which the trial court dismissed the plaintiff's amended petition is that spoken words are not slander per se, unless they impute a crime, subject a person to disgrace, ridicule, odium or contempt in the estimation of friends or acquaintances or the public, impute to a person an infectious disease likely to exclude him from society, impute the unfitness of one to perform the duties of an office or employment, or tend to prejudice him in his profession or trade; and that an action for slander per quod does not lie unless special damages are pleaded.
The Court of Appeals was of the opinion that if the instant action were treated as one for slander the trial court's disposition of it was correct, and the Court of Appeals stated:
"While it is alleged that from the verbal assault defendant is said to have committed upon plaintiff, great emotional disturbance and bodily harm resulted to her, it is not claimed that she sustained any loss or damage in the estimation of those who heard it, or even those who may have heard of it."
However, the Court of Appeals, in its opinion, said that under the liberal construction to be given our procedural law, the plaintiff has the right to go to the jury on any basis which the facts alleged permit; and that the physical condition of the plaintiff, known to the defendant, gave rise to the hazard of an emotional disturbance and bodily injury to her nerves, which disturbance and injury the petition alleges she experienced and which, it is alleged, defendant must well have anticipated from his conduct.
It is axiomatic that opprobrious epithets, even if malicious, profane and in public, are ordinarily not actionable. There is no right to recover for bad manners. But it is contended here that plaintiff has the right to recover because defendant was aware of her physical condition and designed to use the language he did for the purpose of hurting her and causing her physical injury, and his remarks did cause her physical injury. There can be no doubt that personal injury may be produced through emotional or mental disturbance caused by fright, terror, shock and other similar experiences, and there likewise can be no doubt that in proper cases pecuniary damages may be recovered for nervous shock and emotional disturbance and injuries directly resulting therefrom.
Where one is in a situation in which he is entitled to protection from another, such as would be due to a guest from an innkeeper, to a patron from a theater, or to a passenger from a common carrier, he may recover for any injuries, including fright and terror, which result from a wilful breach of duty, insult or unlawful treatment. Cincinnati Northern Traction Co. v. Rosnagle, an Infant, 84 Ohio St. 310, 95 N.E. 884, 35 L.R.A. (N.S.), 1030, Ann. Cas. 1912C, 639.
The weight of authority seems to be, and certainly it is the rule in Ohio, that there is no liability for merely negligent acts which cause fright or shock unaccompanied by contemporaneous physical injury, even though subsequent illness results, where the negligent acts complained of are neither wilful nor malicious. Miller v. Baltimore Ohio Southwestern Rd. Co., 78 Ohio St. 309, 85 N.E. 499, 125 Am. St. Rep., 699, 18 L.R.A. (N.S.), 949.
However, in the present case, construing, as we must, the allegations of the plaintiff's petition and the opening statement of her counsel most strongly in her favor, the action of the defendant in using the vile epithets, which it is alleged he did, was wilful and malicious, and the question we must solve is, was his conduct actionable.
There are many authorities to the effect that, where a defendant, knowing of a plaintiff's unusual physical condition and that insults and vile epithets might reasonably be anticipated to cause her mental and emotional disturbance and illness, such defendant would be liable for any deleterious effects of insults or epithets which he purposely and malicously uttered. An examination of the authorities will demonstrate, however, that, where such liability was recognized, almost without exception the defamatory, insulting and profane words were accompanied by either threats, menacing actions which amounted to an assault, or a violation of the privacy and serenity of a home. Thus, in cases cited by the Court of Appeals to substantiate its opinion, we find the following facts:
Stockwell v. Gee, 121 Okla. 207, 249 P. 389, the defendant was trespassing on the property of plaintiff's husband, and the defendant pushed his fist into plaintiff's face.
In Bouillon v. Laclede Gas Light Co., 148 Mo. App., 462, 129 S.W. 401, defendant's agent was a trespasser in an apartment and frightened plaintiff by forcing his way in and using violent language.
In Rogers v. Williard, 144 Ark. 587, 223 S.W. 15, 11 A.L.R., 1115, the defendant unlawfully entered plaintiff's premises, wantonly quarreled, drew a pistol and threatened to shoot a person in plaintiff's presence, causing plaintiff to have a miscarriage.
In Kirby v. Jules Chain Stores Corp., 210 N.C. 808, 188 S.E. 625, defendant made threats causing a miscarriage by plaintiff.
Other cases in which recoveries have been allowed for fright and emotional disturbances or their resulting bodily injuries will be found to have in them either the elements of assault, threats or invasions of the home. Thus, in Jeppsen v. Jensen, 47 Utah 536, 155 P. 429, L.R.A. 1916D, 614, the defendant, in plaintiff's home, directed grossly vulgar and profane language towards plaintiff's husband, in plaintiff's presence, and threatened to shoot her husband.
In Whitsel v. Watts, 98 Kan. 508, 159 P. 401, L.R.A. 1917A, 708, the defendant ran toward the plaintiff and in an angry, threatening manner, swearing and shaking his fist, said, "You are fooling with the wrong person this time."
In Johnson v. Sampson, 167 Minn. 203, 208 N.W. 814, 46 A.L.R., 772, defendant made a false charge of unchastity against plaintiff, a school girl 15 years old, in her presence and that of another, and threatened that if plaintiff did not confess she would be sent to the reform school.
In Grimes v. Gates, 47 Vt. 594, 19 Am. Rep., 129, defendant threatened to imprison the plaintiff and thereby so frightened and terrified her as to cause her to become ill. In that case the court said: "A mere vain fear is not sufficient. It must be founded upon an adequate threat."
In LaSalle Extension University v. Fogarty, 126 Neb. 457, 253 N.W. 424, 91 A. L. R., 1491, defendant threatened to sue plaintiff and to appeal to his employer, and made such threats wilfully and intentionally for the purpose of producing mental pain and anguish.
The above are but samples of the many cases which permitted recoveries for wilful, malicious conduct or opprobrious epithets resulting in personal injury and accompanied by threats, actions constituting assaults, or invasions of the serenity of private premises and homes. They are all easily distinguishable from the present case.
There is no allegation or statement in the present case, either in the amended petition or the opening statement of counsel, of anything which could be construed as a threat or an assault. The inexcusable words alleged to have been used by the defendant were uttered on the sidewalk of a public street. Plaintiff made no claim that she was frightened or terrified. There is no allegation that defendant was guilty of any menacing actions or attitudes. All the allegations state merely the use of profane and vulgar words with the malicious intention of wreaking the maximum of opprobrium upon the plaintiff.
It is true that in the opening statement it was said that the defendant stepped right up to the plaintiff and started the resumption of a former wrangling, and, in the presence of people on the sidewalk, he used profane words in a loud voice and with a flushed face. It is also true it was stated that plaintiff's mother took her quickly by the arm and rushed her into a store. Neither of those statements, however, was of an assault or a causing of fright and terror. Consequently, the question before us is: does profane and atrocious language not slanderous and unaccompanied by menacing actions or attitudes, threats, trespass, or invasions of the serenity of private premises or a home give rise to a cause of action? We do not think so.
In the case of Continental Casualty Co. v. Garrett, 173 Miss. 676, 161 So. 753, the Supreme Court of Mississippi, while upholding a right of action for abusive and insulting language which violates the quiet and peaceable enjoyment of a home, said:
"The great weight of authority, under the common law, is that mere words, however offensive or insulting, when the conduct of the party does not amount to an assault, are not actionable."
In Maze v. Employees' Loan Society, 217 Ala. 44, 114 So. 574, the Supreme Court of Alabama said:
"The action for verbal abuse is slander, and words used, when not accompanied by an assault, are not the subject of actionable damages."
In 1 Cooley on Torts (4 Ed.), 323, Section 95, it is stated:
"Mere words do not constitute an assault unless accompanied by an offer of physical violence. 'An attempt to commit a battery usually involves an assault, a putting in fear, a sudden call upon the energies for prompt and effectual resistance, and the law for these reasons makes the assault a wrong even though no actual battery takes place.' "
In 1 Restatement of Torts, 47, Section 21, as to assault, it is stated:
"(1) An act other than the mere speaking of words which, directly or indirectly, is a legal cause of putting another in apprehension of an immediate and harmful or offensive contact makes the actor liable to the other for the apprehension so caused, if (a) the actor intends to inflict a harmful or offensive contact upon the other or a third person or to put the other or a third person in apprehension thereof * * .
"An act which is not done with the intention stated in Subsection (1, a) does not make the actor liable to the other for an apprehension caused thereby although the act involves an unreasonable risk of causing it and, therefore, would be negligent or reckless if the risk threatened bodily harm."
Section 31, page 61 of the same volume, reads:
"To make the actor liable for an assault under the rule stated in Section 21, he must have done an act other than the mere speaking of words which puts the other in apprehension of an immediate and harmful or offensive contact."
The reason for not extending the right of action, in the instant case, for insulting and profane words uttered on a public highway, and unaccompanied by threats or conduct amounting to an assault, is well stated by the Court of Appeals of Kentucky in Reed v. Ford, 129 Ky. 471, 112 S.W. 600, 19 L.R.A. (N.S.), 225, and quoted with approval by the same court in Smith v. Gowdy, 196 Ky. 281, 285, 244 S.W. 678, 29 A. L. R., 1353:
"The damages sought to be recovered are too remote and speculative. The injury is more sentimental than substantial. Being easily simulated and hard to disprove, there is no standard by which it can be justly, or even approximately, compensated."
If the allegations in the amended petition and the opening statement in the present case are true, and for the purposes of our decision they must be assumed to be true, the conduct of the defendant was atrocious, inexcusable and certainly unworthy of any one claiming to be a gentleman. However, plaintiff did not allege that she was put in fear or terror or that defendant was guilty of any conduct which amounted to even a slight assault, and it is apparent, since the episode occurred on a public sidewalk, that there was no violation of the serenity, peace and quiet of the home. The actions of the defendant, therefore, however reprehensible, amount to damnum absque injuria.
The judgment of the Court of Appeals is reversed and that of the Court of Common Pleas affirmed.
Judgment reversed.
WEYGANDT, C.J., MATTHIAS and SOHNGEN, JJ., concur.
TURNER, HART and ZIMMERMAN, JJ., dissent.
The question presented in the instant case is whether, under the circumstances described in the amended petition and the opening Statement of counsel to the jury, which admittedly must be taken as the truth, the boisterous, atrocious and inexcusable verbal assault of the defendant upon the plaintiff in a public place and in the hearing of many people with knowledge that she was in an advanced state of pregnancy, causing her nervous shock, mental distress, impairment of health and a period of illness requiring medical treatment, gives the plaintiff a cause of action against the defendant, in the absence of physical contact with, or menacing threats of physical harm toward, the plaintiff.
Liability for nervous shock or its harmful consequences, in the absence of some physical impact, is a comparatively recent doctrine in the law. Until about a half century ago, no reported cases had appeared in which claims were made for a recovery for the consequences of fright, mental distress or shock. And, until a quarter of a century ago, it was almost universally held that to support an action for physical harm, there must have been some physical impact so applied as to actually work a direct and immediate physical injury. The three leading cases in this country supporting this doctrine are Mitchell v. Rochester Ry. Co., 151 N.Y. 107, 45 N.E. 354, 56 Am. St. Rep., 604, 34 L.R.A., 781; Spade v. Lynn Boston Rd. Co., 168 Mass. 285, 47 N.E. 88, 60 Am. St. Rep., 393, 38 L.R.A., 512; and Ewing v. Pittsburgh, C. St. L. Ry. Co., 147 Pa. 40, 23 A. 340, 14 L.R.A., 666, 30 Am. St. Rep., 709.
The reasons assigned by the courts for denial of recovery for the physical consequences of fright, shock or mental distress, unaccompanied by contemporaneous physical impact or injury, are that such claims cannot be placed in the mold of any category of tort actions known to the law; that there is a lack of judicial precedent for the legal recognition of such claims; that mental suffering and its consequences are so evanescent and intangible that they cannot be foreseen or anticipated and for that reason have no reasonable proximate causal connection with the act of the defendant; that the recognition of such claims would open the door not only to fictitious and fraudulent claims but to litigation in the field of trivialities and mere bad manners; and that such claims present administrative difficulties for the courts which make judicial consideration inadvisable.
In recent years, the courts have, in most instances, abandoned the idea that no action is maintainable for a tort unless it comes within a specified type or category of tort actions. They have discarded the lack of precedent as a reason for denying recovery, as such a theory would deny all progress and vitality in the law, and they have determined that it is the responsibility of the law to grant a remedy for a substantial wrong even though a new term must be invented to describe it.
Sir Frederick Pollock, perhaps the greatest authority in his day on the law of torts, said (Pollock on Torts [14 Ed.], 16):
"Down to our own time it was difficult to find any definite authority for stating as a general proposition of English law that it is a wrong to do wilful harm to one's neighbour without lawful justification or excuse. * * * Law begins not with authentic general principles, but with enumeration of particular remedies. * * * [There is no] law of delicts, but only a list of certain kinds of injury which have certain penalties assigned to them. Thus in the Anglo-Saxon and other early Germanic laws we find minute assessments of the compensation due for hurts to every member of the human body, but there is no general prohibition of personal violence * * *. Whatever agreements are outside the specified forms of obligation and modes of proof are incapable of enforcement; whatever injuries are not in the table of compensation must go without legal redress. The phrase damnum sine injuria, which for the modern law is at best insignificant, has meaning and substance enough in such a system. Only that harm which falls within one of the specified categories of wrong-doing entitles the person aggrieved to a legal remedy.
* * * * *
"Such is not the modern way of regarding legal duties or remedies. * * * So we can be no longer satisfied in the region of tort with a mere enumeration of actionable injuries. The whole modern law of negligence, with its many developments, enforces the duty of fellow-citizens to observe in varying circumstances an appropriate measure of prudence to avoid causing harm to one another. * * * If there exists, then, a positive duty to avoid harm, much more must there exist the negative duty of not doing wilful harm, subject, as all general duties must be subject, to the necessary exceptions. The three main heads of duty with which the law of torts is concerned — namely, to abstain from wilful injury, to respect the property of others, and to use due diligence to avoid causing harm to others — are all alike of a comprehensive nature.
"In fact, there are dicta of the late Lord Bowen's, which appear fully to recognize the doctrine here contended for. He said, as Lord Justice, in 1892: 'At common law there was a cause of action whenever one person did damage to another, wilfully and intentionally, and without just cause or excuse.' Skinner Co. v. Shew Co., 1 Ch., 413, 422, 62 L. J. Ch., 196. * * * A similar dictum in the same judge's well-known judgment in Mogul Steamship Co. v. McGregor, 23 Q. B. Div., 613, is in terms limited to damage to a man in his property or trade. But first, these are the only material cases, for the duties of not wilfully harming our neighbours in person or reputation are admitted to be quite general; and, secondly, the Supreme Court of the United States has thought the last cited dictum sufficient warrant for an unqualified declaration. The opinion was thus expressed by Holmes, J., in 1901: 'It has been considered that, prima facie, the intentional infliction of temporal damage is a cause of action, which, as a matter of substantive law, whatever may be the form of pleading, requires a justification if the defendant is to escape. * * * It is no sufficient answer to this line of thought that motives are not actionable, and that the standards of the law are external. That is true in determining what a man is bound to foresee, but not necessarily in determining the extent to which he can justify harm which he has foreseen.' " See Aikens v. Wisconsin, 195 U.S. 194, 204, 49 L.Ed., 154, 25 S.Ct., 3. (Italics supplied.)
On that subject Professor Harper said:
"If the actor intentionally created the threat of fear or apprehension, or if he actually sought to inflict direct physical injury upon the other, the common law has for centuries allowed a recovery for the emotional disturbance under the formula of assault. ( Lewis v. Hoover, 3 Blackf. [Ind.], 407; Handy v. Johnson, 5 Md. 450.) * * *. As a result of the hardening into rigid form of the rules governing assault, the law did not readily give redress where the harm apprehended was not immediate. Today, however, it seems that the emotional disturbance resulting from deliberate and intentional threats of future bodily harm constitutes the basis for a recovery if the emotional distress is sufficiently acute and the defendant's conduct is wholly unreasonable. The requirement of immediacy of the threatened harm seems to have been an arbitrary condition imposed to insure the gravity of the situation. When a plaintiff's peace of mind for his personal safety is intentionally disturbed by conduct which, while not threatening instant harm, is equally outrageous, the plaintiff may recover although no physical injury is actually sustained." 1938 Wisconsin Law Review, 427, 428, citing American Security Co. v. Cook, 49 Ga. App. 723, 176 S.E. 798, and Whitsel v. Watts, 98 Kan. 508, 159 P. 401.
In Prosser on Torts, 57, 58, 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 classification, and that the infliction of mental injury may be a cause of action in itself. Its limits are as yet ill defined, but it has been extended to its greatest length in the case of intentional acts of a flagrant character, whose enormity adds especial weight to the plaintiff's claim, and is in itself an important guarantee that the mental disturbance which follows is serious and not feigned."
The courts for many years have allowed recoveries for insult, mental shock, and the violation of other personal rights against defendants who, because of a special relationship, are charged with a special duty of care toward persons within such relationship. For such violations of protective care, recoveries have been allowed to passengers of public carriers and to patrons of places of public entertainment such as hotels and theaters.
In other situations where a defendant commits a traditional tort, even though a wrongful touching or an essential element, such as menacing threats, slander and libel per se, alienation of affections or false imprisonment, is not present, the courts, with great unanimity, have allowed recoveries for distress and humiliation. Incidentally, it should be observed that in allowing recoveries in the classes of cases above mentioned, the courts have disregarded or have overcome the same objections and difficulties of administration as are present in cases such as the one at bar. Consequently, little validity should now attach to the reasons originally given for refusal to consider injuries due to shock and mental distress when they demand consideration at the hands of the courts.
At the present time, the courts in most American jurisdictions permit recovery for physical harm or injury caused by mental distress for which the defendant is wrongfully responsible, even though there is an absence of contemporaneous impact. There is in this country, however, a sharp conflict of authority as to whether there may be a recovery where a physical injury or illness results from fright or mental shock caused by the negligent act of another, in the absence of physical impact or the commission of an independent tort. In many cases, representing a modern viewpoint, such a recovery is allowed. In the case of Wolfe v. The Great Atlantic Pacific Tea Co., 143 Ohio St. 643, 56 N.E.2d 230 (discovery of worms in a can of peaches after some of the peaches had been eaten by plaintiff causing nausea and resulting in vomiting and illness), this court held, Judge Turner writing the opinion, that in a negligence action "no liability exists, for fright and its consequences when such fright is unaccompanied by contemporaneous physical injury," but that "a jury question is presented as to whether physical injury resulted to plaintiff where the evidence disclosed that immediately after eating a portion of a can of peaches worms were discovered in the remainder thereof and plaintiff thereupon became ill and vomited and continued ill for several days." A judgment for the plaintiff in that case was sustained by this court.
In the case of Morton v. Stack, a Minor, 122 Ohio St. 115, 170 N.E. 869 (defendant was the owner of an apartment house which caught fire and due to his negligence in not providing fire escapes a child was forced to stay in a smoked-filled room 15 minutes before a fireman rescued him; for some weeks thereafter the child was nervous, would shake, would cry out in his sleep, apparently living over again the occasion of the fire, and a year and a half later had a convulsion), this court, in a unanimous per curiam opinion, affirmed the judgment of the Court of Appeals, which reversed the judgment of the trial court which had directed a verdict for defendant. See, also, Pankopf v. Hinkley, 141 Wis. 146, 123 N.W. 625, 24 L.R.A. (N.S.), 1159; Hanford v. Omaha Council Bluffs Street Ry. Co., 113 Neb. 423, 203 N.W. 643, 40 A. L. R., 970; annotation, 40 A. L. R., 985 (leading case in United States); Comstock v. Wilson, 257 N.Y. 231, 177 N.E. 431, 76 A. L. R., 676; annotation, 76 A. L. R., 684, 98 A. L. R., 403; Rasmussen v. Benson, 133 Neb. 449, 275 N.W. 674, 122 A. L. R., 1468, 1492; Dryden v. Continental Baking Co., 11 Cal.2d 33, 77 P.2d 833; Frazee v. Western Dairy Products, 182 Wn. 578, 47 P.2d 1037.
In the instant case, the verbal attack of the defendant upon the plaintiff was made wilfully, intentionally and even maliciously, resulting in mental distress and subsequent illness. The courts almost universally hold, even those which recognize the rule denying liability for injuries resulting from fright or shock caused by negligence where there is no physical impact, that such rule cannot be invoked where it is shown that the fright or shock was due to a wilful or intentional and unreasonable wrongful act resulting in illness or physical injury. This is because the law is more willing to charge the defendant with the consequence of a wilful than a negligent wrong. See "Intentional Infliction of Mental Suffering: A New Tort," by Prosser, 37 Michigan Law Review, 874. And, besides, in cases of wilful and intentional conduct, the court is not burdened with the problem of foreseeability, except possibly as to the unreasonableness of the defendant's act.
The majority opinion in this case takes the position that notwithstanding the insulting and brutal language of the defendant toward the plaintiff, causing her mental distress and nervous shock, resulting in physical illness, she is not entitled to recover for such physical illness because the defendant did not commit any technical physical assault upon her by striking her or making menacing threats of physical harm toward her, or commit any other independent or traditional tort against her.
As I see it, the majority opinion undertakes to test liability in this case by postulating the tort of assault, and then assuming the position that, since the words spoken did not constitute a technical assault, no recovery can be had. In case of assault, the wrong which gives a right of action is the act of assault itself, and damages for mental distress are allowed as parasitic damages, as incidental to the principal damages for the physical harm caused by the assault. But, if violent words directed against a plaintiff, even though they do not rise to the magnitude of an assault, are so vicious as to cause mental distress and consequent physical injury and damages, there arises a cause of action.
I maintain that the doctrine, which requires the commission of an independent concomitant and traditional tort in connection with the verbal onslaught, which in this case was sufficient in itself to cause emotional distress so acute as to result in physical illness, before there can be a recovery for such physical harm, has no application in this action. When any person wilfully, intentionally and without excuse sets in motion forces which cause physical injury to another by whatever means he may choose, he becomes liable under the law for such physical injury or harm.
We have no concern here as to whether a plaintiff may recover for nervous shock or emotional disturbance alone where no physical injury follows. That is beside the point in this case. Here, we have a nervous shock and emotional disturbance resulting in physical injury. Here the action is not to recover for fright or shock but for the physical injury caused by or through the fright or shock (Bohlen, 41 Am. Law. Reg. [N. S.], 141, 153, 155). I concede that most cases hold that a recovery may not be had for fright or shock alone in the absence of consequential physical harm or damage. Plaintiff's action is not based upon the mental distress but upon the physical harm inflicted upon her through the medium of mental distress. This point is illustrated in negligence cases. No recovery can be had for negligent acts alone, no difference how reckless or wanton. Only when the negligent act results in injury and damage does a cause of action for the negligent act arise. In my view, a verbal attack may be so vicious and harmful as to cause physical illness, and if it is of such character and accomplishes such purpose through shock and mental distress, the combination of the attack and the consequent damages becomes a tort in itself for which a recovery may be had. I agree, as one writer said, that "there is liability only for conduct exceeding all bounds which could be tolerated by society, of a nature especially calculated to cause mental damage of a very serious kind," but the law should not deny a recovery in a meritorious case. See 37 Michigan Law Review, 874.
The majority opinion quotes from 1 Restatement of Torts, 47, Section 21, under the subject of "Assault," holding that there cannot be recovery for fright or shock alone unless the fright or shock grows out of an assault. Here the Restatement is not dealing with liability for physical illness resulting from fright or shock. This is made clear in Section 47 of the same chapter of the Restatement of Torts which says: "Except as stated in Sections 21 to 34 (a), [actual assault], conduct which is tortious because intended or likely to result in bodily harm to another or in the invasion of any other of his legally protected interests does not make the actor liable for an emotional distress which is the only legal consequence of his conduct." (Italics supplied.) However, the Restatement of Torts recognizes a liability when the injury from fright or shock does result in physical harm or injury.
In 2 Restatement of Torts, Section 312, under the subject of "Negligence," and under the sub-caption "Emotional Distress Intended" the rule applicable to the instant case is stated as follows:
"If the actor intentionally and unreasonably subjects another to emotional distress which he should recognize as likely to result in illness or other bodily harm, he is subject to liability to the other for an illness or other bodily harm of which the distress is a legal cause, (a) although the actor has no intention of inflicting such harm * * *."
The comment to the above section says:
" a The rule stated in this section does not give protection to mental and emotional tranquillity. The. actor's conduct is negligent not because it is intended to subject the other to a mental or emotional disturbance but because it is likely to result in physical harm through the intended disturbance. The mental or emotional disturbance is important only in so far as its existence involves a risk of bodily harm and as affecting the damages recoverable if the bodily harm which it threatens is sustained.
" b In order that the actor be liable under the rule stated in this section, it is necessary that he act unreasonably. There are many situations in which it is reasonable, indeed inevitable, to subject another to a distress which is recognizably likely to have serious physical consequences. Thus, it may be necessary to inform even an ill woman of the death of a dearly loved relative.
* * * * *
"The actor who intends to subject another to distress necessarily knows the distress which he intends to cause, the person whom he intends to subject to it and the circumstances under which it is to be inflicted. He has a far greater ability to foresee its consequences and to realize that if inflicted, as he intends it to be, it may result in a bodily harm than one whose conduct is negligent because he should, but perhaps does not, realize that it may cause a similar distress."
In this connection 52 American Jurisprudence, 404, Section 58, says:
"* * * there are cases * * * in which liability is regarded as properly imposed, although there is no contemporaneous bodily impact or injury, but a bodily injury or illness has resulted from a mental or emotional disturbance caused by an act intended to produce such disturbance, or by an act or wrong characterized as wilful, wanton, malicious, or grossly reckless."
Many courts now hold, indeed the weight of modern authority now is, that "even in the absence of a contemporaneous bodily impact or injury, or acts constituting an assault, a cause of action is regarded as properly predicated upon a mental or emotional disturbance, or a bodily injury or illness resulting therefrom, produced by disturbing utterances, such as * * * insulting, humiliating, * * * or abusive language," although there are cases to the contrary. 52 American Jurisprudence, 419, Section 73.
In the case of Brown v. Crawford, 296 Ky. 249, 177 S.W.2d 1 (an assault case without physical impact and without subsequent bodily harm), the court reviewed the case of Smith v. Gowdy, 196 Ky. 281, 244 S.W. 678, 29 A. L. R., 1353, cited in the majority opinion, and recognized the doctrine here contended for by saying:
"This court is committed to the doctrine that in ordinary actions for more negligence or where the injury to another is not wilful, there can be no recovery for mental suffering where there has been no physical contact. Reed v. Ford, 129 Ky. 471, 112 S.W. 600, 19 L.R.A. (N.S.), 225; Morgan v. Hightower's Admr., 291 Ky. 58, 163 S.W.2d 21. However, the general rule is that there may be a recovery for physical pain and suffering as well as mental suffering resulting from fright caused by the wilful wrong of another Annotation in 11 A.L.R., 1119; 4 American Jurisprudence, Assault and Battery, Section 183, 1 Sutherland on Damages, 4th Ed., Section 24, Cf. Restatement of Law of Torts, Section 436." (Italics supplied.)
Cases illustrating that rule are Wilkinson v. Downton, L. R. 2 Q. B., 57, 66 L. J. Q. B., 493, 76 L. T., 493, 45 W. R., 525, 13 T. L. R., 388; Grimes v. Gates, 47 Vt. 594, 19 Am. Rep., 129; Johnson v. Sampson, 167 Minn. 203, 208 N.W. 814, 46 A. L. R., 772; Barnett v. Collection Service Co., 214 Ia., 1303, 242 N.W. 25; May v. Western Union Telegraph Co., 157 N.C. 416, 72 S.E. 1059, 37 L.R.A. (N.S.), 912; Fitzsimmons v. Olinger Mortuary Assn., 91 Colo. 544, 17 P.2d 535; Erwin v. Milligan, 188 Ark. 658, 67 S.W.2d 592; Cashin v. Northern Pacific Ry. Co., 96 Mont. 92, 28 P.2d 862; Pacific Mutual Life Ins. Co. of California v. Tetirick, Gdn., 185 Okla. 37, 89 P.2d 774.
The recognition of liability for an intentional or wilful tort causing shock and nervous disturbance followed by physical illness was fully recognized by this court through dicta in Miller v. Baltimore Ohio Southwestern Rd. Co., 78 Ohio St. 309, 81 N.E. 440, and in Davis v. Cleveland Ry. Co., 135 Ohio St. 401, 21 N.E.2d 169, although both of these cases are negligence cases. In the former the ancient rule then prevalent was applied, and in the latter there was no physical injury.
Under the law as I interpret it, upon the allegations of plaintiff's amended petition together with the statement of counsel as to the evidence to be offered thereunder, plaintiff was entitled to go to the court and jury with her evidence.
Judge Hart has written an able and elaborate dissent in this case, with much of which I agree. However, I should like to outline as briefly as possible the principal reasons which impel me to dissent from the majority opinion.
Ordinary negligence was the basis upon which the recovery of damages was sought and denied in the cases of Miller v. Baltimore Ohio Southwestern Rd. Co., 78 Ohio St. 309, 85 N.E. 499, 18 L.R.A. (N.S.), 949, 125 Am. St. Rep., 699 and Davis v. Cleveland Ry. Co., 135 Ohio St. 401, 21 N.E.2d 169. In the instant case, the petition alleges in essence that the defendant, knowing the plaintiff to be advanced in pregnancy, deliberately and maliciously in a public place and in a loud voice, used vile and abusive language toward plaintiff, by reason whereof she suffered an emotional disturbance resulting in impairment of health.
It is my conviction that such petition states a good cause of action for a wilful and malicious wrong and that nothing was said by counsel for plaintiff in his opening statement to warrant the trial judge in dismissing the petition and rendering judgment for the defendant.
There is an abundance of respectable authority supporting the proposition that where one wilfully and with a malicious motive uses vile and opprobrious language toward another, under conditions where deleterious consequences might reasonably be anticipated, and the use of such language does in fact cause an emotional disturbance resulting in physical harm, the actor may be made to respond in damages for the consequences of his inexcusable and reprehensible conduct. See 52 American Jurisprudence, 403, 419, Sections 58, 73. See, also, the views of the writer as expressed in the Davis case ( 135 Ohio St. 401, at 405, 21 N.E.2d 172) and in his dissenting opinion in the case of Mabley Carew Co. v. Lee, a Minor, 129 Ohio St. 69, at 76, 79, 193 N.E. 748, 749, 100 A. L. R., 516, 518.
Although in the Miller case this court did expressly hold that "no liability exists for acts of negligence causing mere fright or shock, unaccompanied by contemporaneous physical injury, even though subsequent illness results," the plain intimation is present that a different conclusion might be reached in a case where the negligent acts, causing mental distress followed by physical disorder, were wilfully and maliciously perpetrated.
I think the judgment of the Court of Appeals herein was justified and proper and that the same should, therefore, be affirmed.