Food Fair, Inc. v. Anderson

Decision Date09 April 1980
Docket NumberNos. 78-1624,s. 78-1624
Citation382 So.2d 150
PartiesFOOD FAIR, INC. et al., Appellant, v. Stanley ANDERSON et al., Appellee. /T4-167, 78-1625/T4-167A and 78-1928/T4-167B.
CourtFlorida District Court of Appeals

Goble D. Dean of Dean, Ringers, Morgan & Lawton, Orlando and Marcia K. Lippincott, Sanford, for appellant Food Fair, Inc.

James R. Barfield and Howard C. Coker of Cowles, Coker & Myers, Jacksonville, for appellant England.

Thomas E. Thoburn, Cocoa, for appellees.

COBB, Judge.

The appellees, Euna and Stanley Anderson, sued the appellants, Food Fair, Inc., and its employee, Douglas England, for intentional infliction of mental distress and for fraud. The facts, viewed in the light most favorable to the plaintiffs below, are as follows:

In 1975, Food Fair experienced a cash shortage, which led to an investigation by England, its security officer. Euna Anderson at that time had been a cashier and office worker for Food Fair for some six years. She was asked on June 5, 1975, to submit to a polygraph test administered by England at a motel room being used for the investigation. Upon arrival, she was told by England that it was company policy to have all employees either take the test or be terminated. She agreed to take the test, and signed consent forms to that effect. England then told Euna it was company policy to have her admit to prior thefts, because anybody who had worked for the company as long as she had must have taken something. He told her that if she denied such past thefts she would be terminated as untrustworthy. Euna protested her innocence, but England persisted that the alternative to confession was termination. Euna told him she needed the job because of family obligations and commenced to cry. England told her not to worry, that it would not go against her record, and that other employees had signed such statements and been retained by Food Fair in return for repayment of the amounts taken. Euna thereupon signed a statement admitting to the theft of $150, a figure suggested by England. The statement she signed was dictated by England and handwritten by Euna, except for an explanation at the bottom of the statement as to what Euna thought was causing the cash shortages. England then administered the polygraph and, afterwards, told her, "It didn't clear." She requested another test and he told her to return the next day because of her nervousness. She left the motel and the store manager drove her back to the store. Euna met with England the following day, June 6, at which time England told her she would have to admit to an amount greater than $150. England dictated a new statement, this time using a $500 figure, and Euna signed it. He then administered another polygraph and told Euna she "didn't clear". Later, she was told that she was suspended until the investigation was completed but would then be notified when to return to work. Instead, she was terminated because of her admission of misappropriating company cash, although she claimed to have returned all money taken. As a result of the foregoing, according to the case for the plaintiffs, Euna Anderson lost her job 1 and her unemployment compensation, and suffered mental distress; Stanley Anderson testified to lost consortium. Euna estimated the loss in earnings comparing the Food Fair job and her subsequent employment between June, 1975, and the time of trial in Aprilil, 1978, to be approximately $11,000.

On July 17, 1975, the plaintiffs met with Food Fair officials to discuss Euna's termination from employment. This meeting was tape-recorded by Stanley Anderson. The taped conversation included a statement by Stanley Anderson that Euna's truthfulness concerning her version of the threats made by the Food Fair investigator at the June meeting was established by an independent polygraph examination administered by a certified polygraph expert whom the Andersons had contacted subsequent to the England investigation. At trial, the tape recording of the July 17th meeting was admitted into evidence over objections by defense counsel. The objections were threefold: (1) that the tape was inaudible in many portions; (2) the tape was replete with hearsay; and (3) there was no individual identification of the voices on the tape, only evidence as to the identity of the people at the meeting.

The defendants' motion for a directed verdict at the close of trial was denied. The jury awarded compensatory damages against both defendants in the amount of $40,000 for Euna Anderson and in the amount of $7,500 for Stanley Anderson. In addition, punitive damages were awarded to Euna in the amount of $300,000 against Food Fair and in the amount of $60,000 against England.

Final judgment in those amounts was entered after various defense motions were denied. The issues on appeal, as framed by appellants are:

I. Did the plaintiff establish a prima facie case for the torts of intentional infliction of mental distress and fraud?

II. Was England's conduct within the scope of his employment by Food Fair?

III. Were the verdicts contrary to the manifest weight of the evidence?

IV. Were the awarded damages excessive?

V. Did the trial court commit reversible error in admitting the tape recording of the July 17th meeting between plaintiffs and the Food Fair officials?

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS:

The first question posed above is the most difficult. The independent tort of intentional infliction of mental distress, sometimes called the tort of outrage, has been discussed, directly or inferentially, in a number of Florida cases. See, e. g., Gilliam v. Stewart, 291 So.2d 593 (Fla.1974); La Porte v. Associated Independents, Inc., 163 So.2d 267 (Fla.1964); Slocum v. Food Fair Stores of Florida, 100 So.2d 396 (Fla.1958); Kirksey v. Jernigan, 45 So.2d 188 (Fla.1950); Lay v. Roux Laboratories, Inc., 379 So.2d 451 (Fla. 1st DCA 1980); Ford Motor Credit Co. v. Sheehan, 373 So.2d 956 (Fla. 1st DCA 1979); Estate of Harper v. Orlando Funeral Home, Inc., 366 So.2d 126 (Fla. 1st DCA 1979); Dowling v. Blue Cross of Florida, Inc., 338 So.2d 88 (Fla. 1st DCA 1976); Korbin v. Berlin, 177 So.2d 551 (Fla. 3d DCA 1965). The question is raised as to whether the facts adduced herein constitute "conduct exceeding all bounds which could be tolerated by society, of a nature especially calculated to cause mental damage of a very serious kind." Slocum, supra, at 397.

The status in Florida of the independent action for intentional infliction of severe emotional distress was comprehensively reviewed and considered in a scholarly opinion by Judge Ervin in the recent case of Ford Motor Credit Co. v. Sheehan, supra. The factual situation therein concerned a false representation by a credit company that the debtor's children had been seriously injured, its purpose being to locate him. In affirming a verdict for the plaintiff, the district court noted that the majority rule, as set forth in the Restatement (Second) of Torts, Section 46(1) (1965), 2 applies in Florida. The test is not the actual intent to inflict severe emotional distress, but whether or not the actor knows that such distress is certain, or substantially certain, to result from his conduct. The rule also applies where the action is in reckless disregard of a high degree of probability that emotional distress will follow.

The Sheehan opinion examines four opinions of the Florida Supreme Court as the basis for its conclusion that Florida follows the majority rule: Kirksey, Slocum, LaPorte and Gilliam, supra. The test from Slocum, quoted above, is noted, and Judge Ervin then reaches the conclusion that "there is in Florida no bar to an independent action for intentional infliction of severe mental distress when the conduct alleged is 'so outrageous in character, and so extreme in degree, as to go beyond all bounds of decency, . . .' " 3 Sheehan, supra at 960.

According to comment d to Section 46, Restatement (Second) of Torts:

The cases thus far decided have found liability only where the defendant's conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by "malice," or a degree of aggravation which would entitle the plaintiff punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!" (emphasis added.)

We conclude that the evidence of the conduct of the defendant England in the instant case does not meet the test of outrageousness. See Slocum, Sheehan, and Dowling, supra. Therefore, it was error for the trial court to deny the defendants' motion for directed verdict in regard to the plaintiffs' claims based on the tort of intentional infliction of mental distress.

FRAUD AND DECEIT:

But what about the separate tort of fraud and deceit upon which this case also was submitted to the jury? There was evidence that Euna Anderson was discharged because of the misrepresentation to her by England that her admission of guilt, although false, would save her job. As a result, she was discharged and suffered mental anguish. Stanley Anderson seeks to recover derivatively for loss of consortium.

Three of the necessary elements of fraud are at issue. To begin with, the appellants argue that the plaintiffs failed to show the necessary element of injury to sustain an action for fraud and deceit. The injury sustained in an action for deceit must ordinarily be of a pecuniary nature. Pryor v. Oak Ridge Dev. Corp., 97 Fla....

To continue reading

Request your trial
54 cases
  • Kilduff v. Adams, Inc.
    • United States
    • Connecticut Supreme Court
    • June 18, 1991
    ...450 U.S. 1051, 101 S.Ct. 1772, 68 L.Ed.2d 247 (1981); Trimble v. Denver, 697 P.2d 716, 730 (Colo.1985); Food Fair, Inc. v. Anderson, 382 So.2d 150, 154-55 (Fla.App.1980); Captain & Co. v. Stenberg, 505 N.E.2d 88, 100 (Ind.App.1987); Ditcharo v. Stepanek, 538 So.2d 309, 314 (La.App.), cert. ......
  • Doe 1 v. Roman Catholic Diocese
    • United States
    • Tennessee Supreme Court
    • January 18, 2005
    ...v. Ellis, 200 Conn. 243, 510 A.2d 1337, 1342 (1986); Howard Univ. v. Best, 484 A.2d 958, 985 (D.C.1984); Food Fair, Inc. v. Anderson, 382 So.2d 150, 153 (Fla.Dist.Ct.App.1980); Trimble v. Circuit City Stores, Inc., 220 Ga.App. 498, 469 S.E.2d 776, 778 (1996); Hac v. Univ. of Haw., 102 Hawai......
  • Hoffman v. Stamper
    • United States
    • Maryland Court of Appeals
    • February 4, 2005
    ...35 Colo.App. 317, 534 P.2d 813, 819 (1975). 17. See Ellis v. Crockett, 51 Haw. 45, 451 P.2d 814, 820 (1969); Food Fair, Inc. v. Anderson, 382 So.2d 150, 154-55 (Fla.Dist.App.1980); S.H. Inv. & Development Corp. v. Kincaid, 495 So.2d 768, 770 (Fla.Dist.App.1986); Umphrey v. Sprinkel, 106 Ida......
  • Tyson v. Viacom, Inc.
    • United States
    • Florida District Court of Appeals
    • January 12, 2005
    ...was terminated, allegedly in retaliation for reporting the injunction violations, on November 25, 1996. See Food Fair, Inc. v. Anderson, 382 So.2d 150, 154-155 (Fla. 5th DCA 1980)(circumstances of employment termination may constitute injury for purposes of a fraud in the inducement claim).......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT