Taylor v. Vallelunga

O’DONNELL, J. pro tem.

*

The complaint in this action contains three counts. We are concerned here, however, only with the allegations of the first two counts. In the first count, plaintiff Clifford Gerlaeh alleges that on December 25, 1956, defendants struck and beat him causing him bodily injury for which he seeks damages. In the second count, plaintiff and appellant Gail E. Taylor incorporates by reference the charging allegations of the first count and proceeds to allege that she is the daughter of plaintiff Clifford Gerlaeh, .that she was present at and witnessed the beating inflicted upon her father by defendants, and that as a result thereof, she suffered severe fright and emotional distress. She seeks damages for the distress so suffered. It is not alleged that any physical disability or injury resulted from the mental distress. A general demurrer to the second count of the complaint was interposed by defendants. The demurrer was sustained and appellant was granted 10 days leave to amend. Appellant failed to amend and judgment of dismissal of the second count was entered. The appeal is from the judgment of dismissal.

The California eases have for some time past allowed recovery of damages where physical injury resulted from intentionally subjecting the plaintiff to serious mental distress. (See cases cited in

State Rubbish etc. Assn.

v.

Siliznoff,

38 Cal.2d 330, 337 [240 P.2d 282].) In the Siliznoff ease the Supreme Court extended the right of recovery to situations where no physical injury follows the suffering of mental distress, saying that “a cause of action is established when it is shown that one, in the absence of any privilege, intentionally subjects another to the mental suffering incident to serious threats to his physical well-being, whether or not the threats are made under such circumstances as to constitute a technical assault.” (P. 336.) In arriving at this result the court re

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lied in substantial part upon the development of the law in this field of torts as traced by the American Law Institute, and it quotes with approval (p. 337) section 46, as amended, of the Restatement of Torts, (Rest, of the Law, 1948 Supplement, Torts, §46) which reads: “One who, without a privilege to do so, intentionally causes severe emotional distress to another is liable (a) for such emotional distress, and (b) for bodily harm resulting from it.” In explanation of the meaning of the term “intentionally” as it is employed in said section 46, the reporter says in subdivision (a) of that section: “An intention to cause severe emotional distress exists when the act is done for the purpose of causing the distress or with knowledge on the part of the actor that severe, emotional distress is substantially certain to be produced by his conduct: See Illustration 3.” Illustration 3 referred to reads as follows: “A is sitting on her front porch watching her husband B, who is standing on the sidewalk. C, who hates B and is friendly to A,