Bennett v. City National Bank and Trust Company

549 P.2d 393
CourtCourt of Civil Appeals of Oklahoma
DecidedApril 21, 1976
Docket47924
StatusPublished
Cited by21 cases

This text of 549 P.2d 393 (Bennett v. City National Bank and Trust Company) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bennett v. City National Bank and Trust Company, 549 P.2d 393 (Okla. Ct. App. 1976).

Opinions

BOX, Judge:

An appeal by Arlena Bennett, plaintiff from the sustaining of a demurrer to her evidence, in a suit against City National Bank and Trust Company, Norman, Oklahoma, and Larry Shaver, for mental anguish and severe emotional distress, arising out of certain acts of defendant Larry Shaver, in making threatening and abusive telephone calls to plaintiff.

Plaintiff filed her petition against the defendants, alleging in part as follows:

“3. Steven Bennett, the son of Plaintiff, Arlena Bennett, owed a sum of money to City National Bank and Trust Company in June of 1973, which Steven Bennett had borrowed from City National Bank and Trust Company on an installment basis. Steven Bennett allegedly was past due in his payments during the summer of 1973. Defendant Larry Shaver, an agent and vice-president of Defendant City National Bank and Trust Company on numerous occasions throughout the summer of 1973 and continuing into the fall of that same year, made calls to the residence of Plaintiff. Such calls were made to inquire into the whereabouts and financial status of Steven Bennett. During this time Plaintiff was generally cooperative with Defendant Larry Shaver and supplied any information she possessed concerning Steven Bennett and Plaintiff in fact, using money supplied by Steven Bennett and at his request, made payments to Defendant City National Bank and Trust Company on the note of Steven Bennett.
“4. On or about October 9, 1973, Defendant Larry Shaver called the residence of Plaintiff and made further inquiries concerning the whereabouts of Steven Bennett and sought additional information which would assist Defendant Larry Shaver in locating Steven Bennett. Plaintiff refused to supply such information. Defendant Larry Shaver became irate and abusive in his language toward Plaintiff and threatened to ruin the credit of Plaintiff and her husband, Ralph Bennett. Defendant Larry Shaver stated further abusive and threatening language, to-wit: ‘Mrs. Bennett, you have a poor attitude, the poorest attitude I have ever seen. I take it you don’t intend to help the bank? Well, Mrs. Bennett, I’ll do everything I can to make you sorry you took this course of action. When I get through with you, you will look back in time and remember this day. I’ll do everything in my power to make your life miserable and make you pay for this.’ Defendant Larry Shaver also made various other threats that he would do everything in his power to upset the lives of Plaintiff and her husband and to destroy their peace of mind and credit.
“5. The above threats and abusive language were communicated to Plaintiff by Defendant Larry Shaver acting as an agent of Defendant City National Bank and Trust Company, knowing that the party to whom he was talking was Plaintiff. Such threats and abusive language were intended by Defendant Larry Shaver and Defendant City National Bank and Trust Company to cause great mental anguish and severe emotional distress to Plaintiff, or were made in reckless disregard for the rights of Plaintiff. Defendant Larry Shaver and Defendant City National Bank and Trust Company should have known and recognized that the use of such threats and abusive language and the communication of such would cause great mental anguish and severe emotional distress to Plaintiff.”

[395]*395Plaintiff sought actual damages in the amount of $10,000.00 and punitive damages in the amount of $50,000.00.

Defendants answered, generally denying and specifically answered in part as follows :

“Defendants specifically allege that they did not know and had no reason to know, suspect or believe that plaintiff was susceptible to physical or mental harm, injury, damage or illness by means of verbal communications addressed to or conversations held with her and, as a reasonable man, had no reason, cause or basis to suspect or foresee that the alleged verbal communications addressed by defendants to plaintiff might cause injury or harm.
“Defendants specifically allege that they did not intend to cause any injury or harm to the plaintiff, either mental or physical, through the use of any of the alleged language.
“Defendants specifically deny that the alleged language was used by them with recklessness regard of the plaintiff’s rights, safety, health or wellbeing or was used in reckless disregard of any adverse consequences to the plaintiff therefrom which were known or reasonably should have been known by defendants.”
Plaintiff appeals.

Plaintiff sought money damages for mental anguish and other physical symptoms of such mental anguish caused by the acts of defendant, Larry Shaver, in making threatening and abusive phone calls to plaintiff concerning a debt owed by plaintiff’s son. The case came on for trial before a jury on September 16, 1974. Upon plaintiff presenting the evidence of one witness and offering the evidence of two more, said evidence being dictated into the record and stipulated to by defendants in part as follows, to-wit: That the husband of plaintiff would testify that he observed the highly nervous condition of his wife; that she suffered from headaches; was unable to cook dinner and unable to sleep the night following the call from defendant Shaver, and further, was unable to go to sleep every night thereafter for four or five or six nights; that Dr. Woodson’s nurse on rebuttal would testify that Mrs. Bennett did tell her, when she came in, relating the history of the telephone calls that she received and particularly the last one from Mr. Shaver, as the reason why she was, as she put it, “as nervous as — a nervous wreck — ,” defendants interposed a demurrer to plaintiff’s evidence grounded on failure to prove by expert medical testimony that plaintiff, as a result of defendant’s acts, suffered mental anguish and other physical symptoms.

The trial court sustained defendant’s demurrer in words as follows;

“BY THE COURT: The demurrer will be sustained; exceptions allowed Plaintiff, and as I said at the PreTrial Conference, absent evidence of objective symptomology supported by medical testimony showing such to have been caused as a non-contact injury to the Plaintiff in this case, the cause of action is not established.”

Plaintiff alleges error as follows:

“An action for damages for mental anguish need not be accompanied by physical injury where the act was willful and in violation of plaintiff’s legal rights.”

The Supreme Court of Oklahoma recognized the above statement as early as 1941. In Mashunkashey v. Mashunkashey, 189 Okl. 501, 113 P.2d 190, it was stated that usually pain and suffering is compensable only when made an element of damage in an action based on a wrong which in itself is actionable, but mental pain and suffering may constitute the basis of an independent action in cases of willful wrong of the character where mental suffering is recognized as the ordinary, natural and proximate result of such wrong, although mental pain and suffering was not pleaded as an independent action but as an element of damage in an action for injury to character resulting from the bigamous marriage induced by the defendant. Nevertheless [396]*396the court said that mental pain and suffering constituted a ground of recovery and even if plaintiff failed to prove damage to her character, she could still show mental pain and suffering and recover therefor.

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Bluebook (online)
549 P.2d 393, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bennett-v-city-national-bank-and-trust-company-oklacivapp-1976.