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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).

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