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The rule that there could be no recovery for mental pain unconnected with physical hurt in an action arising from negligent breach of a contract when simple negligence was involved, would not be extended to cases purely in tort where the wrongful act is such as reasonably to imply malice, or where from great indifference to the persons, property, or rights of others, such malice will be imputed as would justify the assessment of exemplary or punitive damages.
Appellant was the owner of a seven-toed cat, aptly named "Big Foot." "Big Foot" (perhaps to pass on to future generations his unique paw characteristic) strayed. He was later found dead by the side of a road. Appellant claimed that an employee of the animal control center had negligently killed the cat prior to the expiration of the three-day waiting period required by county practice and then placed the cat by the side of the road to cover up the center's action. Appellant appealed an order dismissing her second amended complaint with prejudice for the wrongful extermination of her seven-toed cat. The trial court dismissed her complaint holding that the complaint was insufficient because of the county's immunity from suit for the wrongful act of its animal control center.
Was the complaint sufficient to support a claim for damages for pain and suffering?
The court reversed the trial court's ruling that the complaint was insufficient because of the county's immunity from suit for the wrongful act of its animal control center. The court held that, absent an allegation of malice or intentional destruction of the cat, the complaint was insufficient to support a claim for damages for pain and suffering. The case was remanded to allow appellant the opportunity to make the proper allegations in amended pleadings prior to any dismissal with prejudice.