About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

44 Calif. L. Rev. 40 (1956)
Insult and Outrage

handle is hein.journals/calr44 and id is 62 raw text is: (Vol. 44 Insult and Outrage William L. Prosser* By the middle of this century, it appears to be quite generally recog- nized that the nameless wrong which, for lack of anything better, usually is called the intentional infliction of mental suffering, or mental anguish, or mental disturbance, or emotional distress, has such distinct and definite features of its own that it is entitled to be regarded as a separate tort.' Except for a recent decision in Ohio,2 and one in Texas3 from which the * Dean, University of California School of Law, Berkeley. I The classic article on the subject is Magruder, Mental and Emotional Disturbance in the Law of Torts, 49 HARV. L. R~v. 1033 (1936). See also Prosser, Intentional Infliction of Mental Suffering: A New Tort, 37 MIcH. L. REv. 874 (1939); Vold, Tort Recovery for Inten- tional Infliction of Emotional Distress, 18 NEB. L.B. 222 (1939) ; Borda, One's Right to Enjoy Mental Peace and Tranquillity, 28 GEo. L.J. 55 (1939); Seitz, Insults-Practical Jokes- Threats of Future Harm--How New as Torts?, 28 Ky. LJ. 411 (1940); Note, 25 So. CALIF. L. REv. 440 (1952). Particularly valuable is Wade, Tort Liability for Abusive and Insulting Language, 4 Vumw. L. REv. 63 (1950). 2 Bartow v. Smith, 149 Ohio St. 301, 78 N.E.2d 735 (1948). Defendant, seeing plaintiff on a city street, reviled her at the top of his lungs in the presence of bystanders and others who assembled, calling her a God damned son of a bitch, a dirty crook, and other similar epithets, which he repeated many times. Plaintiff was seven months pregnant at the time, and her con- dition was sufficiently obvious to the defendant; and she claimed that the verbal attack was made for the purpose of causing her physical injury. Her mental disturbance did result in nervous illness, which lasted for a considerable time and required a doctor's attention, but did not interfere with the normal birth of her child. The action was dismissed on counsel's opening statement of these facts; and on appeal the dismissal was affirmed. The court said that there was no assault or slander per se, that plaintiff did not claim that she was terrified, or frightened for her safety, and that there could be no recovery for mere opprobrious epithets or bad manners. It added, quoting from a Kentucky case: The damages sought to be recovered are too remote and speculative. Being easily simulated and hard to disprove, there is no standard by which it can be justly, or even approximately, compensated. Id. at 311, 78 N.E.2d at 740. Three judges out of seven dissented, contending that the tort should be recognized as standing on its own feet, and that this was an appropriate case for recovery. The case was viewed with a more or less jaundiced eye in Notes, 27 TExAs L. REv. 730 (1949) (distinctly and inexcusably retrogressive), 1 ALA. L. REv. 121 (1948), 47 Micnr. L. REv. 436 (1949), 9 Oso ST. L.J. 545 (1948), 23 TuL. L.R av. 290 (1948), 17 U. Cn . L. R~v. 413 (1948), 6 WAsH. & LEE L. REv. 253 (1949). It was approved, not without some doubts, in Notes, 22 TEmp. L.Q. 359 (1949), 23 ST. JoHN's L. REv. 361 (1949). 3 Harned v. E-Z Finance Co., 151 Tex. 641, 254 S.V.2d 81 (1953). Defendant, a usurious lender, repeatedly harassed plaintiff, its debtor, calling him at his place of business, and at his home when he was asleep, threatening and intimidating plaintiff and his wife, threatening to cause him to lose his job, and to take up a collection in the neighborhood to apply on the usurious payments claimed to be still due. Plaintiff claimed to have suffered great mental dis- turbance. The court refused to find a cause of action. Although recognizing that there was precedent for recovery in other jurisdictions, it said that any change in Texas must be for the legislature, in view of a Texas statute declaring that the common law of England should remain the law of the state until changed, as well as the unsatisfactory character of the dam- ages, the wide door which might be opened to fictitious claims and litigation over trivialities and mere bad manners, and the uncertain limits of the new tort. The case was raked over the coals in Green, Mental Suffering Inflicted by Loan Sharks No Wrong, 31 TExAs L. REv. 471 (1953).

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most