Boyle v. Wenk

• Citation: 378 Mass. 592,392 N.E.2d 1053
• Parties: Dolores Ann BOYLE v. John H. WENK. 1
• Decision Date: 01 August 1979
• Court: United States State Supreme Judicial Court of Massachusetts

Page 1053

392 N.E.2d 1053

378 Mass. 592

Dolores Ann BOYLE v. John H. WENK. ¹

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 5, 1979.

Decided Aug. 1, 1979.

John L. Mason, Jr., Cambridge, for defendant.

Joseph M. Orlando, Gloucester, for plaintiff.

Before HENNESSEY, C. J., and QUIRICO, KAPLAN, LIACOS and ABRAMS, JJ.

ABRAMS, Justice.

The sole issue raised by this appeal is the sufficiency of the evidence in an action for the intentional or reckless infliction of emotional distress. The defendant, John H. Wenk, asserts that it was error for the judge to deny his motion for a directed verdict, and after the verdict to deny his motion for a judgment notwithstanding the verdict. See Mass.R.Civ.P. 50, 365 Mass. 814 (1974). Wenk claims that his conduct, while rude and clumsy, was neither "extreme and outrageous" nor was it "beyond all possible bounds of decency." Hence he concludes it was error to submit Dolores Boyle's claim for the intentional infliction of emotional distress to a jury. We find no error; therefore, we affirm the judgment.

In reviewing the denial of Wenk's motion for a directed verdict, ² we view the evidence most favorable to Boyle. See Uloth v. City Tank Corp., --- Mass. ---, ---, ^A 384 N.E.2d 1188 (1978). Moreover, we must determine "whether 'anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff.' " Poirier v. Plymouth, --- Mass. ---, ---, ^B 372 N.E.2d 212, 219 (1978), quoting from Raunela v. Hertz Corp., 361 Mass. 341, 343, 280 N.E.2d 179 (1972).

Wenk was employed by Consulting Investigators, Inc., to do private investigative work. ³ Wenk was asked to investigate the health and capacity for work of one John Walsh.

Walsh is the plaintiff's brother-in-law; he and his wife live in an apartment upstairs from the Boyles' home. In the course of his investigation Wenk called the Boyle home and began asking personal questions about Walsh. The plaintiff suggested to Wenk that he call Walsh directly; she also asked Wenk not to call again as she had just been discharged from the hospital. ⁴

In spite of the plaintiff's request, the next week Wenk called the plaintiff's home at 1 A.M. The plaintiff was alone with her children, ⁵ and she was disquieted by the late hour of the call. She told Wenk not to call again and hung up. After the call the plaintiff was fearful, upset, and unable to sleep. The next week Wenk appeared at the Walsh apartment; Mrs. Walsh invited Boyle upstairs. When asked, Wenk admitted that he had been calling Boyle. The plaintiff told Wenk that he "had (her) terrified."

Then Wenk asked Walsh what he did for a living, and Walsh answered that he "robbed banks." In Boyle's presence, Wenk retorted that he had been "in prison too for rape." The police were summoned.

When two police detectives arrived, the police observed that Boyle was crying and agitated. The detectives asked Wenk to identify himself, and Wenk responded, "I'm a police officer." When challenged, Wenk admitted he was engaged in private investigative work.

Boyle, Wenk, the Walshes, and the detectives went to the police station. Boyle was weeping. At the police station she became weak and sick due to hemorrhaging. Blood was observed on Boyle's chair after she left the station to seek medical assistance.

Boyle was under a physician's care for an extended period of time after these events. Boyle also sought the assistance of a psychiatrist. There was ample medical evidence as to Boyle's injuries, as well as evidence of a causal relationship between Boyle's emotional condition and the phone calls from Wenk. ⁶

Wenk asserts that as a matter of law these facts do not evidence the "extreme and outrageous" conduct necessary to support a claim for intentional or reckless infliction of emotional distress. See George v. Jordan Marsh Co., 359 Mass. 244, 255, 268 N.E.2d 915 (1971). ⁷ He emphasizes that recovery is barred unless his conduct was "beyond all possible bounds of decency," and "utterly intolerable in a civilized community." George, supra at 254-255, 268 N.E.2d at 921. Agis v. Howard Johnson Co., 371 Mass. 140, 145, 355 N.E.2d 315 (1976). Restatement (Second) of Torts § 46, Comment D (1965). Further, Wenk claims, hurt feelings resulting from bad manners, or relatively minor annoyances do not justify recovery for intentional or reckless infliction of emotional distress. See George, supra, 359 Mass. at 253-254, 268 N.E.2d 915. See Restatement (Second) of Torts § 46, Comment D (1965). See generally Magruder, Mental and Emotional Disturbance in the Law of Torts, 49 Harv.L.Rev. 1033, 1053-1064 (1936). We do not quarrel with Wenk's statement of the applicable principles.

However, in our view, Wenk did engage in a pattern of conduct which a jury could find was extreme and outrageous, exceeding mere insult or minor annoyance. Wenk's conduct may reasonably be viewed as an attempt to intentionally shock and harm a person's "peace of mind" by invading the person's mental or emotional tranquility.

The flaw in Wenk's argument is that he isolates each individual incident and ignores the fact that the jury are entitled to draw reasonable inferences from the totality of circumstances. See Poirier v. Plymouth, --- Mass. ---, ---, ^C 372 N.E.2d 212 (1978). Repeated harassment, such as that engaged in by Wenk, may compound the outrageousness of incidents which, taken individually, might not be sufficiently extreme to warrant liability for infliction of emotional distress. See George, supra at 246, 268 N.E.2d 915; Duty v. General Fin. Co., 154 Tex. 16, 18, 273 S.W.2d 64 (1954); Samms v. Eccles, 11 Utah 2d 289, 290, 358 P.2d 344 (1961); Prosser, Insult and Outrage, 44 Cal.L.Rev. 40, 48-49 (1956). Contrast Public Fin. Corp. v. Davis, 66 Ill.2d 85, 92-93, 4 Ill.Dec. 652, 360 N.E.2d 765 (1976).

Significantly, Wenk's conduct continued even after Dolores Boyle, in the first call, had told him not to call again. ⁸ See George, supra, 359 Mass. at 245-246, 268 N.E.2d 915; Dawson v. Associates Fin. Servs. Co. of Kansas, Inc., 215 Kan. 814, 817, 825, 529 P.2d 104 (1974). The issue whether Wenk's conduct was extreme and outrageous is raised by his continued harassment of Boyle after he knew that she had just returned from the hospital. Conduct otherwise reasonable may become tortious when directed at an individual known to be particularly susceptible to infliction of emotional distress. Restatement (Second) of Torts § 46, Comment F, Illustrations 9-11 (1965).

Though there is no evidence that Wenk knew the precise nature of Mrs. Boyle's physical susceptibility, his knowledge that she had just returned from the hospital put him on notice that she might be more vulnerable to harassment or verbal abuse. See Dawson v. Associates Fin. Servs. Co. of Kansas, Inc., 215 Kan. 814, 825, 529 P.2d 104 (1974) (victim with multiple sclerosis); Delta Fin. Co. v. Ganakas, 93 Ga.App. 297, 298-299, 300, 91 S.E.2d 383 (1956) (victim was child aged eleven years). Prosser, 44 Cal.L.Rev. at 50. Martin, A Creditor's Liability for Unreasonable Collection Efforts: The Evolution of a Tort in Texas, 9 S.Tex.L.J. 127, 138-140 (1967). Yet Wenk persisted in intentional conduct which caused Boyle to suffer serious physical and emotional damage. It is for the jury in such instances to decide whether Wenk's conduct was "rude and clumsy" or "extreme and outrageous."

We are mindful of the need for limits on recovery for intentional or reckless infliction of emotional distress: "No pressing social need requires that every abusive outburst be converted into a tort; upon the contrary, it would be unfortunate if the law closed all the safety valves through which irascible tempers might legally blow off steam." ⁹ Magruder, Supra at 1053. Moreover, the courts must be particularly wary in this area to avoid fictitious claims. Agis, supra, 371 Mass. at 143, 355 N.E.2d 315. ¹⁰ Hochman, "Outrageousness" and Privilege in the Law of Emotional Distress A Suggestion, 47 Cornell L.Q. 61, 63 (1961).

However, where a person engages in intentional conduct which is designed to, and actually does, result in severe emotional and physical damage, the possibility of trivial or fictitious claims does not justify denial of recovery to the victim. Agis, supra at 143-145, 355 N.E.2d 315. State Rubbish Collectors Ass'n v. Siliznoff, 38 Cal.2d 330, 338-339, 240 P.2d 282 (1952). Samms v. Eccles, 11 Utah 2d 289, 291, 358 P.2d 344 (1961). W. Prosser, Torts at 50-51 (4th ed. 1971). There is an issue for the jury if reasonable people could differ on whether the conduct is "extreme and outrageous." Agis, supra 371 Mass. at 145-146, 355 N.E.2d 315.

Finally, Wenk argues that the judge mistakenly believed that "it was the sole prerogative of the jury" to determine liability in a case alleging infliction of emotional distress. This contention is not supported by the record.

The judge did express doubts concerning the sufficiency of the evidence and indicated that he might grant a motion for judgment notwithstanding the verdict if the jury found for Dolores Boyle. The judge's comments indicate that he carefully scrutinized the evidence before ruling on Wenk's motions. Ultimately the judge concluded that the evidence was sufficient to permit the jury to consider whether Wenk's conduct was in fact extreme and outrageous. See Restatement (Second) of Torts § 46, Comment H (1965); Womack v. Eldridge, 215 Va. 338, 342, 210 S.E.2d 145 (1974). ¹¹ We find no error in the judge's conclusion.

Judgment affirmed.

1 The complaint named Dolores Boyle and her husband William as plaintiffs, and Wenk and his employer Martin B. Krebs and Consulting Investigators, Inc., as defendants. William Boyle dismissed his claims against all defendants. Dolores Boyle dismissed...