                         IN THE SUPREME COURT OF MISSISSIPPI
                                  NO. 92-CA-01224-SCT
ERNEST B. MORRISON
v.
MIKE MEANS

DATE OF JUDGMENT:                               11/03/92
TRIAL JUDGE:                                    HON. ROBERT G. EVANS
COURT FROM WHICH APPEALED:                      SMITH COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                         RICHARD L. JONES
ATTORNEY FOR APPELLEE:                          JOHN RAYMOND TULLOS
NATURE OF THE CASE:                             CIVIL - CONTRACT
DISPOSITION:                                    REVERSED AND REMANDED - 9/5/96
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                 9/26/96




     BEFORE DAN LEE, C.J., PITTMAN AND ROBERTS, JJ.


     PITTMAN, JUSTICE, FOR THE COURT:


¶1. As the appellant noted, "this case presents the Court with the questions of whether failed
expectations and honest misunderstandings between two men not versed in the intricacies of
commercial law give rise to an award of damages for mental anguish when evidenced only by the
plaintiff's testimony of lost sleep."

¶2. Mike Means purchased a water filter and magnets through Earnest Morrison for installation in
chicken houses owned by Means and his wife. Though the parties disagree as to when Means first
objected to the water filter and whether Morrison represented the magnet manufacturer at the time of
Means' magnet purchase, there is no doubt that Means ultimately demanded a refund of all monies he
parted with in purchasing the products.

¶3. Morrison attempted in good faith to refund Means the most Morrison believed he could possibly
owe. His refund was rejected. Means sued, claiming money damages for breach of contract,
misrepresentation and mental anguish. A jury trial was had. Counsel for Morrison moved for directed
verdicts at the close of Means' case in chief and again after all evidence was presented to the jury.
Both motions were denied. Means was awarded a $5,000 judgment, an amount that is $3,543.20
greater than the amount he parted with in purchasing the filter and magnets. Morrison, aggrieved by
the decision of the court below, perfected his appeal to this Court assigning the following as error:
     I. THERE WAS NO EVIDENCE SUFFICIENT TO SUPPORT AN AWARD OF
     DAMAGES FOR MENTAL ANGUISH.

¶4. This Court holds that this assignment of error is well taken and the case is reversed and
remanded.

                                               FACTS

¶5. Morrison marketed two types of products to poultry farmers -- water filters and magnets. The
water filters were manufactured by Eco Resources, and the magnets were distributed by a company
operating under the name of Magnetic Marketing Group. Morrison's relationship with each company
was not formal; he simply attended meetings sponsored by the companies and qualified to sell their
products. The water filters were intended to remove chlorine, lead and other contaminants from
water piped into poultry houses. Different magnets were marketed for a number of purposes,
including the clean and efficient use of water and of fuel in the operation of chicken houses.

¶6. In April of 1990, Means purchased a water filter from Morrison. The two agreed Means would be
allowed to purchase the water filter on a conditional basis: he made a $500 down payment on the
purchase price, was allowed several months to evaluate the filter's performance, and then had the
option to either pay the balance due or return the filter in exchange for a complete refund. Means
used the water filter for several months without complaint; however, as the chickens grew, so as to
require more drinking water, and as the season turned to summer, so as to require cooling by means
of evaporative foggers, Means complained that the filter unacceptably restricted the water pressure
required for the chicken houses.

¶7. All efforts made to remedy the problem ultimately proved unsatisfactory to Means. At trial,
Means testified that by mid-summer 1990 he first requested a refund of his $500 down payment. In
contrast, Morrison testified that after the modifications in April of 1990, Means voiced no more
complaints regarding the water filter until shortly before the filing of the underlying lawsuit.

¶8. In the early Spring of 1990 (contemporaneous with installation of the water filter), Morrison first
provided magnets to Means for use on one fuel line to the heater in a chicken house. The magnets
were provided on a trial basis in order to allow Means to evaluate their effectiveness. The magnets
were placed on the fuel line for the purpose of increasing the efficiency with which the chicken house
was heated. Means testified that, based upon his records as to the historical cost of heating the
chicken house, the magnets worked. Means never paid any money for this group of magnets. At the
time of trial, they were still installed in his chicken house.

¶9. In January of 1991(approximately the time heating poultry houses again gained significance)
Means contacted Morrison in regards to purchasing magnets for the fuel lines in the remainder of his
chicken houses. Morrison testified at trial that he had ceased selling water filters and magnets
altogether. He further testified that he agreed to arrange for the purchase of additional magnets
through the company he previously represented as an accommodation to Means. In return, he was to
receive $100 from Means for his costs and labors. Morrison testified that Means knew Morrison was
no longer a distributor for the magnet company. Means, however, testified that he had no knowledge
that Morrison was not a representative of the magnet company until the time of trial. Regardless, the
testimony of both parties established that Morrison wrote a check to Means in the amount of the
purchase price of the magnets plus $100. Morrison in turn purchased money orders for the amount of
the purchase price made payable to the magnet company.

¶10. The magnets actually received by Means differed from those ordered through Morrison. The
magnets Morrison installed on the fuel line in the Spring of 1990 were identified under the product
codes "M2" and "FE1." The 21 magnets Means later purchased were Model "FC Petro-Plus," a
model with which Morrison had no familiarity. Means dealt directly with the manufacturer, and
unbeknownst to Morrison, agreed to the substitution of the "FC-Petro Plus" magnets in light of the
company's inability to supply the magnets actually ordered. It was not until sometime later that
Morrison first learned from Means that Means had accepted magnets different from those previously
provided on a trial basis. Dissatisfied with the 21 "FC Petro-Plus" magnets, Means demanded a
further refund from Morrison.

¶11. In his suit Means demanded a refund not only of the $956.80 (including Morrison's $100 fee)
paid for the 21 magnets, but also the $500 down payment on the water filter. Morrison refused to
refund the $856.80 paid to Magnetic Marketing Group. He was willing to refund the $100 Means
paid for Morrison's effort and expense. And he was willing to refund the $500 down payment on the
water filter. However, from this total of $600 he deducted $340 -- his cost for the magnets Means
admitted were provided on a trial basis, admitted worked, and admitted he never paid for. Morrison
executed and mailed a check in the amount of $260 to Means. Means never cashed the check.

     I. WAS THERE EVIDENCE SUFFICIENT TO SUPPORT AN AWARD OF DAMAGES
     FOR MENTAL ANGUISH.

¶12. Mental anguish(1) is a nebulous concept (yet, all of us have suffered such anguish) and requires
substantial proof for recovery. The standard required for mental anguish is elusive. However, the
Restatement (Second) of Torts likens it to that required for entitlement to an award of punitive
damages. It requires conduct "so outrageous in character, and so extreme in degree, as to go beyond
all bounds of decency and to be regarded as atrocious, and utterly intolerable in a civilized
community." Restatement (Second) of Torts § 46.

¶13. This Court has held that recovery for mental anguish can be allowable even when there is no
presence of a physical injury.

     Where there is something about the defendant's conduct which evokes outrage or revulsion,
     done intentionally - or even unintentionally yet the results being reasonably foreseeable - Courts
     can in certain circumstances comfortably assess damages for mental and emotional stress, even
     though there has been no physical injury.

Sears, Roebuck & Co. v. Devers, 405 So. 2d 898, 902 (Miss. 1981). Stated another way, "the
standard is whether the defendant's behavior is malicious, intentional, willful, wanton, grossly
careless, indifferent or reckless." Leaf River Forest Products, Inc. v. Ferguson, 662 So. 2d 648,
659 (Miss. 1995). If there is outrageous conduct, no injury is required for recovery for intentional
infliction of emotional distress or mental anguish. Id. If the case of ordinary garden variety
negligence, the plaintiff must prove some sort of injury, whether it be physical or mental. See Wirtz v.
Switzer, 586 So. 2d 775, 784 (Miss. 1991); and Devers, 405 So. 2d at 902. If the conduct is not
malicious, intentional or outrageous, there must be some sort of demonstrative harm, and said harm
must have been reasonably foreseeable to the defendant. Strickland v. Rossini, 589 So. 2d 1268,
1275 (Miss. 1991).

¶14. The first aspect we must consider is what type of conduct occurred between Morrison and
Means. Morrison argues that he conducted himself like "an honest farmer who expects a man's
handshake to be every bit as significant as his signature at the bottom of a contract." It is Morrison's
argument that he allowed Means to use his products on a trial basis, he afforded Means generous
payment terms, and he assisted Means in securing additional magnets at Means' request.

¶15. Morrison contends that Means' distress does not rise to the level of anxiety or anguish required
to support an award for emotional distress. Means asserts that Morrison's injurious conduct was the
refusal to honor a guaranteed refund. It was this alleged refusal that Means claims caused him the
stress and anxiety of trying to determine how he could make ends meet without the refund. As a
young farmer, Means states that the refund (he claims to be $1,456.80) was a significant part of his
family's income. This loss, Means asserts, caused him emotional strain and many sleepless nights.

¶16. There is no other evidence in this case to support a claim for mental anguish. The only evidence
of Morrison's conduct was that he did not refund the entire $1,456.80 requested by Means. This is
not willful, wanton, grossly careless behavior. Moreover, the evidence tends to support Morrison's
explanation of the amount he offered Means as a refund. If anything, the evidence shows that
Morrison tried to accommodate Means. Morrison testified at trial that he agreed to arrange for the
purchase of additional magnets through the company he previously represented as an accommodation
to Means. Thereafter, Means dealt directly with the manufacturer of the magnets.

¶17. The magnets actually received by Means differed from those ordered through Morrison. The
magnets Morrison installed on the fuel line in the Spring of 1990 were identified under the product
codes "M2" and "FE1." The 21 magnets Means purchased were Model "FC Petro-Plus," a model
with which Morrison had no familiarity. Means dealt directly with the manufacturer, and
unbeknownst to Morrison, agreed to the substitution of the "FC-Petro Plus" magnets in light of the
company's inability to supply the magnets actually ordered. It was not until sometime later that
Morrison first learned from Means that Means had accepted magnets different from those previously
provided on a trial basis. Dissatisfied with the 21 "FC Petro-Plus" magnets, Means demanded a
further refund from Morrison, not the manufacturer he had been dealing with. Morrison's conduct
simply does not rise to the level of "malicious, intentional, willful, wanton, grossly careless,
indifferent, or reckless." Leaf River, 662 So. 2d at 659.

¶18. Even if this Court were to find Morrison's conduct to be of such a nature to meet the standard
set by our precedent, there is not enough evidence presented to support the claim of mental anguish
as a result of the conduct due to a lack of an injury. Means testified that he lost some sleep. He stated
that,

     [i]t has affected me emotionally in that I have not been able to sleep many nights because I feel
     like I've been done wrong. I've been cheated out of money that I need to help support my
     family.

These two sentences out of the entire transcript offered in support of this claim are hardly enough
evidence to support a verdict that amounts to $3543.20 in damages for mental anguish.
¶19. In Strickland v. Rossini, 589 So. 2d 1268 (Miss. 1991), we held that evidence that the plaintiff
was "very depressed . . . [and] very upset over all this and emotional. . . . [and] not able to sleep,"
was insufficient to sustain a damages for mental anguish. Strickland, 589 So. 2d at 1275-76
(emphasis added). The testimony towards mental anguish in the Strickland case was the equivalent, if
not more convincing, to that in the case sub judice. However, we did not find it adequate enough to
support the award of damages for mental anguish, nor can we now hold that the evidence in the case
at hand supports an award of damages for mental anguish. The jury below was erroneous in its award
of damages.

¶20. Under our prevailing case law, there is no evidence of mental anguish in this case. Morrison's
conduct did not reach the level of outrageous conduct this Court has required for mental anguish.
Moreover, Means did not prove any evidence of an injury resulting from Morrison's conduct. Thus,
the jury verdict of $5,000 must be reversed and the case remanded.

¶21. REVERSED AND REMANDED.

LEE, C.J., PRATHER AND SULLIVAN, P.JJ., BANKS, ROBERTS, SMITH, AND MILLS,
JJ., CONCUR. McRAE, J., DISSENTS WITH SEPARATE WRITTEN OPINION.




     McRAE, JUSTICE, DISSENTING:


¶22. By imposing an "outrageous conduct" requirement upon the defendant's actions when extra-
contractual damages are sought, the majority raises the standard of proof for emotional distress in
contracts cases to the same level as that required for an award of punitive damages. This is contrary
to our well-established line of cases requiring only the showing of an intentional tort independent
from the breach of contract to establish damages for emotional distress. Accordingly, I dissent.

¶23. When the issues of emotional distress and punitive damages have arisen in breach of contract
cases, most often in the context of insurance contracts, we have drawn a line between these two very
distinctive types of extra-contractual damages, often recognizing that compensation for emotional
distress -- anxiety, insomnia and the like -- may be warranted even when an award for punitive
damages is not. Universal Life Insurance Co. v. Veasley, 610 So. 2d 290, 295 (Miss. 1992);
Pioneer Life Insurance Co. of Illinois v. Moss, 513 So. 2d 927, 931 (Miss. 1987)(Robertson, J.,
concurring, joined by Prather and Anderson, JJ.); Id. at 932 (Sullivan, J., concurring, joined by D.
Lee, Prather and Robertson, JJ.). In Veasley, the majority stated "damages for mental anguish and
emotional distress cannot be considered in the absence of a finding of an independent intentional tort
separate from the breach of contract." Id. at 295. "Who ever heard of a tort where the plaintiff was
not entitled to recover such damages as he may prove by defendant's tortious conduct? Such damages
ought include economic loss (including attorney fees and legal expenses reasonably and necessarily
incurred) and emotional distress." Moss, 513 So. 2d at 931(emphasis added). In Continental
Casualty Co. v. Garrett, 161 So. 753, 755 (1935), where an insured's illness was exacerbated by
emotional distress suffered after his agent went to his home and called him a liar, the Court found
that "we have (1) an actionable tort; (2) an injury as a proximate result thereof; (3) a situation then
and there known to the wrongdoer from which he should have anticipated the injury as the natural
and probable consequence of his conduct."

¶24. The majority in Veasley found that simple negligence did not rise to the level of an independent
intentional tort for purposes of supporting extra-contractual damages. Veasley, 610 So. 2d at 295.
However, the insurer's bad faith refusal to pay Mrs. Veasley's claim was found to be an independent
intentional tort warranting the award of damages for emotional distress -- the anxiety, worry and
insomnia she suffered as a result of the insurer's actions -- even though the majority determined that
there was no evidence of "wanton or gross conduct" to put the issue of punitive damages before a
jury. Id. at 295-296. In Garrett, the court not only found that agent's trespass and insulting words
had caused the insured's emotional distress, but separately found that his conduct was so "wanton
and willful" as justify the jury's award of punitive damages. Garrett, 161 So. at 755. Only in its
discussion of punitive damages did the Court consider the "willfulness of the wrong and injury." Id.

¶25. In Strickland v. Rossini, 589 So.2d 1268 (Miss. 1991), where breach of contract was not
involved, we rejected appellant Redd Pest Control's argument that the lower court erred in not
instructing the jury that its actions in failing to thoroughly treat the plaintiff's house for termites must
be willful, intentional, wanton or otherwise grossly negligent. Strickland, 589 So. 2d at 1275. To the
contrary, the Court stated that the rule requiring a showing of gross negligence had been relaxed by a
long series of cases including First National Bank v. Langley, 314 So. 2d 324, 328 (Miss. 1975),
Sears, Roebuck & Co. v. Devers, 405 So. 2d 898, 902 (Miss. 1981) and Royal Oil Co. v. Wells, 500
So. 2d 439, 448 (Miss. 1986). Id. "The upshot of these cases in the present rule is," the Strickland
Court wrote, "a plaintiff may recover for emotional injury proximately resulting from negligent
conduct, providing only that the injury was reasonably foreseeable by the defendant." Id.

¶26. Because there is no precedent for requiring a showing of willful, wanton or grossly negligent
behavior to award extra-contractual damages for emotional distress and further, I respectfully dissent.


1. This Court has applied the same standard for mental anguish and intentional infliction of emotional
distress. See Leaf River Forest Products v. Ferguson, 662 So. 2d 648, 659 (Miss. 1995)(applying
the standard stated in Sears, Roebuck & Co. v. Devers, 405 So. 2d 898 (Miss. 1981) in support of
the standard for intentional infliction of emotional distress). Thus, this Court will use the words
interchangeably.
