Berrier v. Beneficial Finance, Incorporated

• Decision Date: 23 September 1964
• Docket Number: Civ. No. 3559.
• Parties: Lillian BERRIER, Plaintiff, v. BENEFICIAL FINANCE, INCORPORATED, Defendant.
• Court: U.S. District Court — Northern District of Indiana

234 F. Supp. 204

Lillian BERRIER, Plaintiff, v. BENEFICIAL FINANCE, INCORPORATED, Defendant.

Civ. No. 3559.

United States District Court N. D. Indiana, Hammond Division.

September 23, 1964.

William G. Conover, Philip Cagen, Valparaiso, Ind., for plaintiff.

Dale Custer, Gary, Ind., for defendant.

ESCHBACH, District Judge.

This action is before the Court on defendant's motion for summary judgment, filed August 20, 1964, pursuant to Rule 55, Federal Rules of Civil Procedure. On full consideration of the pleadings, briefs, and supporting documents and affidavits, the motion must be granted.

The plaintiff claims that the defendant undertook a campaign of harassment, especially by contacting her employer, maliciously designed to coerce her into paying a debt which she and her former husband contracted with defendant. There is some disagreement as to the nature of this claim. The plaintiff contends that she is suing for a wilful tort, that is, the intentional and malicious infliction of mental and physical pain and suffering, and she also claims exemplary damages. In her brief, plaintiff states that her action is not for defamation. Indiana does not recognize as an independent tort the infliction of mental anguish unaccompanied by contemporaneous physical injury or the breach of some other duty. The cases cited by plaintiff, including Aetna Life Insurance Co. v. Burton, 104 Ind.App. 576, 12 N.E.2d 360 (1938), all involve, in addition to the infliction of mental anguish, the breach of some other duty owed to the plaintiff. In Aetna Life Insurance Co. v. Burton, supra, recovery was permitted for mental anguish caused the plaintiff by the defendant's wrongful performance of an autopsy upon the remains of plaintiff's deceased husband. The court stated that "if this autopsy was legally held, there is no liability here on the part of the appellant * * *." Aetna Life Insurance Co. v. Burton, supra, at 362. Furthermore, Indiana has not generally recognized mental anguish, unaccompanied by a contemporary physical injury, as grounds for a recovery in negligence. Boston v. Chesapeake & Ohio Ry. Co., 223 Ind. 425, 61 N.E.2d 326 (1945). If physical injury was inflicted upon Mrs. Berrier, as was alleged, it was a result of mental stress also caused her, rather than inflicted independently of or contemporaneously with the mental stress. No acts of physical violence or contact were alleged. It is just such a recovery for mental anguish that the rule of the Boston v. Chesapeake & Ohio Ry. Co., supra, seeks to preclude. Otherwise, mental anguish intentionally though reasonably caused could support a recovery. The Restatement of the Law of Torts, § 312 (1934), would permit recovery for mental anguish and resultant physical harm only where the defendant acted unreasonably.

Even if the mental and physical harm were contemporaneous, the defendant must have violated a duty owed to the plaintiff in order that the plaintiff recover for her injuries. In a negligence action, the duty is one of due care. Here, the plaintiff seeks to protect her interest in freedom from shame, humiliation, and harassment. This interest is recognized in the right of privacy. There is no absolute right to be free from an invasion of privacy because many necessary acts require an intrusion on the feelings of others. Rather, there exists the right to be free from unreasonable invasions of privacy, much as the right to be free from unreasonable invasions of physical security. In Patton v. Jacobs, 118 Ind. App. 358, 78 N.E.2d 789 (1948), the court held that an action for mental anguish for the invasion of privacy was sound in theory. Like the case at bar, Patton v. Jacobs, supra, involved the efforts of the defendant to collect a debt, which efforts included informing the plaintiff's employer. The trial court sustained the defendant's demurrer and the appellate court affirmed, holding that a creditor had a right to inform the debtor's employer so long as such information was not "slanderous, libelous, defamatory or coercive. * * *" This case was cited in the leading Ohio opinion of Housh v. Peth, 99 Ohio App. 485, 135 N.E.2d 440 (1955), which was also a debt collection case, wherein the Ohio Court of Appeals affirmed the plaintiff's recovery for the mental anguish caused her by the defendant's unreasonable methods. The Court recognized that a creditor could take reasonable steps to collect a debt, including informing his debtor's employer, but the harassment there involved went far beyond the bounds of reason. Housh v. Peth, supra, at 449.

Under this view of the instant case, the issue is whether the defendant acted unreasonably and seriously interfered with the plaintiff's interest in not having her affairs known to others. Restatement, Torts § 867 (1939). To find for the defendant on...