American Road Service Co. v. Inmon

Citation394 So.2d 361
Parties118 L.R.R.M. (BNA) 2511 The AMERICAN ROAD SERVICE COMPANY v. Robert F. INMON. 79-108.
Decision Date24 December 1980
CourtSupreme Court of Alabama

Charles Cleveland of Gordon, Cleveland & Gordon, Birmingham, for appellant.

Leo E. Costello of Costello & Stott, Birmingham, for appellee.

BEATTY, Justice.

The basic legal question on this appeal is whether this Court recognizes the intentional or reckless tort of outrageous conduct causing severe emotional distress, as proposed by the American Law Institute's Restatement (Second) of Torts § 46 (1948):

(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

Until now such a cause of action has been neither accepted nor rejected in Alabama. As recently as August 31, 1979, in Lavoie v. Aetna Life and Casualty Co., Inc., Ala., 374 So.2d 310 (1979), involving claimed relief for an insurer's bad faith refusal to pay legitimate policy benefits, we held that the trial court's grant of a Rule 12(b)(6) motion was inappropriate under the allegations of the complaint, stating at 312:

(I)t is the facts of an actual case which will breathe life into the legal theories now advanced by appellants, and their claims should not be summarily dismissed at the pleading stage....

Unlike Lavoie, the theory of Section 46 now has been given full sway in the trial court: the plaintiff has alleged facts sufficient to invoke that theory, testimony has been taken, the trial court has instructed the jury upon the law of outrageous conduct, and the jury has rendered a verdict in favor of the plaintiff in the amount of twenty-five thousand dollars. From the judgment rendered on that verdict and from the order denying its post-judgment motions, the defendant has appealed.

Admittedly, our recognition of the tort of outrageous conduct, or "severe emotional distress," would authorize recovery of damages for mental suffering alone (although Section 46 also allows recovery for accompanying bodily harm). Traditionally, damages for mental anguish alone have not been recoverable in this jurisdiction. Western Union Telegraph Co. v. Jackson, 163 Ala. 9, 50 So. 316 (1909). However, if the mental suffering has been accompanied by some physical injury, damages for mental suffering have been allowed. East Ala. Express Co. v. Dupes, 271 Ala. 504, 124 So.2d 809 (1960) (plaintiff who sustained whiplash and fracture allowed to recover for her "worry" about the future result of her injury); Macke v. Sutterer, 224 Ala. 681, 141 So. 651 (1932) (pregnant tenant who was injured from fall from steps allowed to recover from landlord damages for mental anguish (fear) because she was "caused to be in danger of a miscarriage ..."); and see Bryson v. Phelps, 23 Ala.App. 346, 125 So. 795; cert. den. 220 Ala. 389, 125 So. 798 (1930) (physical damage to his automobile allowed the owner to recover damages for his delay, vexation, annoyance and mental anguish).

Other decisions and authorities reveal a remedial situation hypocritical in nature. For example, the passenger of a carrier is allowed to recover for the use of insulting language causing mental suffering because the courts have found an implied promise in fact to provide protection from such abuse. Seaboard Air Line Ry. Co. v. Mobley, 194 Ala. 211, 69 So. 614 (1915) (reversed on other grounds in Tomme v. Pullman Co., 207 Ala. 511, 93 So. 462 (1922)). Likewise it was an easy step to apply the theory of a contractual duty implied by law to make an innkeeper similarly liable. Dixon v. Hotel Tutwiler Operating Co., 214 Ala. 396, 108 So. 26 (1926). Debt collection cases allow recovery when there is a traditional tort, such as slander or a personal trespass, Maze v. Employees' Loan Soc., 217 Ala. 44, 114 So. 574 (1927); and a trespass quare clausum fregit is also sufficient to allow damages for "nervous excitement" when no physical violence was suffered. Engle v. Simmons, 148 Ala. 92, 41 So. 1023 (1906). These decisions feign to insist upon the presence of a tort of long standing when it is perfectly obvious that any injury from the traditional tort is slight and the damages sought for the mental disturbance constitute the primary (if not the sole) reason for having initiated the action. Consider Horne v. Patton, 291 Ala. 701, 287 So.2d 824 (1974) (unauthorized disclosure by physician of his patient's condition constituted prima facie invasion of right of privacy which would authorize damages for mental suffering, shame or humiliation); Holcombe v. Whitaker, 294 Ala. 430, 318 So.2d 289 (1975) (fraudulent misrepresentation made willfully authorized recovery for shame, humiliation, and mental anguish, adopting Morris v. MacNab, 25 N.J. 271, 135 A.2d 657 (1957), which stated: "(W)here the wrong is willful rather than negligent, recovery may be had for the ordinary, natural, and proximate consequences though they consist of shame, humiliation, and mental anguish."). The damages recoverable for mental or emotional harm thus have been described as "parasitic," that is, the right to recover for them has been dependent upon recovery for another independent, or separate, tort recognized at common law. Magruder, Mental and Emotional Disturbance in the Law of Torts, 49 Harvard L.Rev. 1033, 1048 (1936). This distinction, however, was neither significant nor followed in Herman Saks & Sons v. Ivey, 26 Ala.App. 240, 157 So. 265 (1934). In that case the defendant had sent to the plaintiff a collection letter whose terms violated a criminal statute (Code of 1923) §§ 3194, 3195; Cf. Code of 1975 § 13-6-17) imposing a sanction against sending abusive letters to another which might tend to breach the peace. The Court of Appeals, in recognizing a civil cause of action in the recipient, authorized recovery of substantial damages for the plaintiff's mental anguish, annoyance and inconvenience (plaintiff also alleged that she had been made "sick and sore for a long period of time"). And in Hamner v. Bradley, 289 Ala. 624, 270 So.2d 81 (1972), involving allegations of abusive, insulting, provocative and threatening language by an insurance agent toward a hospitalization policyholder, a convincing dissent recognized

a marked tendency on the part of many jurisdictions to recognize that the intentional infliction of mental distress by extreme and outrageous conduct constitutes a cause of action in itself, apart from any traditional tort,

citing cases from other jurisdictions, articles on the subject, and Restatement (Second) of Torts § 46 (1948).

Universal acceptance of the theory of recovery recognized in Section 46 has been slow "(b)ecause of the fear of ficticious or trivial claims, distrust of the proof offered, and the difficulty of setting up any satisfactory boundaries to liability." Comment, Restatement, supra, at 72. Perhaps the "bad faith" accusations in insurance claims, see Vincent v. Blue Cross-Blue Shield of Ala., Inc., Ala., 373 So.2d 1054 (1979), the debt collection cases, e. g., Norris v. Moskin Stores, Inc., 272 Ala. 174, 132 So.2d 321 (1961), and the employer-employee situations, such as Hinrichs v. Tranquilair Hospital, Ala., 352 So.2d 1130 (1977), suggest doubts to some about the wisdom of acknowledging this cause of action.

Concerning the latter, it should be sufficient to observe that an employer, by virtue of his position, possesses no roving license to treat his employee in an extreme and outrageous manner, whether before, during or after their relationship. Cf. M. B. M. Co., Inc. v. Counce, Ark., 596 S.W.2d 681 (1980). Neither does the creditor nor the claims representative with those with whom they deal. As stated by Wade, Tort Liability for Abusive and Insulting Language, 4 Vand.L.Rev. 63, 100:

No social utility is advanced by permitting unrestrained name-calling and use of insulting language. Just as clearly, there is a mental injury to the victim of the abusive words. In the United States today intensifying emphasis is being placed upon the individual, the integrity of his personality and its legal preservation and protection.... The law cannot undertake to guarantee peace of mind or complete mental equanimity, but it can and should be ready to grant damages for emotional distress intentionally caused by unjustifiable name-calling.

Administrative difficulties of trial fears of the inadequacy of juries in assessing damages or determining fictitious claims, fears of opening the flood gates of litigation have long been regarded as insuperable. But actual experience has shown that these fears are largely imaginary. No serious difficulties have been encountered in assessing damages in the carrier cases, the collection cases and the other exceptions to the general rule. And in the states with actionable words statutes and in other jurisdictions permitting recovery for abusive language, a survey of the cases indicates that the juries have not been reckless in awarding damages but have generally returned very moderate verdicts....

He added:

There has been no flood of litigation at least so far as the appellate cases indicate. Indeed, judicial statistics show that defamation cases have proved almost an insignificant part of the total civil litigation in the trial courts; and there is no reason to believe that the number of actions for abusive language would be materially greater than those for defamatory language.

It should also be noted that this tort does not recognize recovery for "mere insults indignities, threats, annoyances, petty oppressions, or other trivialities." Comment, Restatement, supra, at 73. The principle applies only to unprivileged, intentional or reckless conduct of an extreme and outrageous nature, and only that which causes severe emotional distress. The rule itself provides that the trial court determine in the first...

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