Breeden v. League Services Corp.

• Decision Date: 07 March 1978
• Docket Number: No. 49922,49922
• Citation: 1978 OK 27,575 P.2d 1374
• Parties: Louise E. BREEDEN, Appellant, v. LEAGUE SERVICES CORPORATION, and Credit Service, Inc., Appellees.
• Court: Oklahoma Supreme Court

Page 1374

575 P.2d 1374

Louise E. BREEDEN, Appellant, v. LEAGUE SERVICES CORPORATION, and Credit Service, Inc., Appellees.

No. 49922.

Supreme Court of Oklahoma.

March 7, 1978.

Appeal from the District Court of Oklahoma County; Harold C. Theus, Trial Judge.

This case involves the review of a trial court's granting of summary judgment in favor of defendant collection companies in a suit brought by a debtor, seeking to recover damages for mental anguish allegedly suffered as the result of harassing and threatening collecting tactics used by the collection companies.

Finding that the collection company's conduct was not extreme or outrageous, and that reasonable persons could not differ as to the nature of their conduct, we affirm the summary judgment granted by the trial court. AFFIRMED.

Rex D. Brooks, Oklahoma City, for appellant.

L. David Pomeroy, Fuller, Tubb & Pomeroy, Oklahoma City, for appellee League Services Corp.

Freeman & Freeman, Oklahoma City, for appellee Credit Service, Inc.

DAVISON, Justice.

We are asked in this case to review a trial court's granting of summary judgment in favor of defendant collection companies in a suit brought by debtor, Louise E. Breeden, appellant, seeking to recover damages for fear, worry, humiliation, mental anguish, loss of sleep, damages for the resulting loss of her employment, and punitive damages, allegedly resulting from the harassing and threatening collecting tactics of the defendant collection companies.

After pre-trial conference, the defendant collection companies moved for summary judgment based upon the depositions, answers to interrogatories and exhibits before the trial court. Appellant Breeden appeals from the trial court's sustaining of the summary judgment.

Ms. Breeden's complaints as to harassment stem from a series of telephone calls made to and letters mailed to her while at home and at work. In her deposition, she testified that the damages she suffered arose from the calls and letters to her at work. We first note that the record is totally absent of any evidence that any calls were made or letters sent directly to Ms. Breeden's employer; rather, the only evidence presented demonstrates that she received three letters addressed to her, care of her employer, and that the appellee collection companies may have attempted to call her at work as many as fourteen times no evidence was presented to even suggest that any of the phone calls made were to other than Ms. Breeden personally. Secondly, we note that Ms. Breeden actually received only one of the calls. Her estimate as to the number of other calls comes from, in a few instances, her being informed by her supervisor that she had received a call, and in the majority of instances was based upon her intuition Ms. Breeden feeling that certain behavior of her supervisor was an indication she had received another call. None of the letters sent to Ms. Breeden were introduced into evidence by either party only the envelopes in which they arrived were introduced. The only information as to the sole phone call Ms. Breeden actually received was Ms. Breeden's testimony that the gentleman who called stated:

"You damned deadbeat. You God damned liar. And you are a deadbeat."

Ms. Breeden testified that these letters and phone calls to her at work caused her employer to threaten dismissal, unless she paid her bills, though her supervisor denies this, and testified that Ms. Breeden was fired because of her work. Although the record reveals several fact questions as to the behavior of Ms. Breeden's employer, there were no fact questions as to the nature of the appellant collection companies' behavior. The fact questions regarding Ms. Breeden's employer are immaterial to the issues involving appellees' conduct, and, therefore do not bar summary judgment. ¹

The question presented is whether the conduct of the collection companies, as shown by the evidence, could give rise to an action in tort? We hold, as the trial court did, that it could not.

Because of the fear of fictitious and or trivial claims and the difficulty of setting up satisfactory boundaries to liability, the law has been slow to afford independent protection to the interest of freedom from emotional distress standing alone. It is only recently that the law has fully recognized extreme or outrageous conduct, which intentionally or recklessly causes severe emotional distress, as a separate and distinct basis for tort liability without the presence of elements necessary to other torts, such as assault, false imprisonment, trespass to land or the like. ²

The general state of the law is succinctly summarized at Section 46, Restatement of Torts (Second), 1965, which provides in part:

§ 46. Outrageous Conduct Causing Emotional Distress

"(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."

(Emphasis added)

Comment d to that Section provides in part:

" * * * 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!'

The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where some one's feelings are hurt. There must still be freedom to express an unflattering opinion, and some safety valve must be left through which irascible tempers may blow off relatively harmless steam. See Magruder, Mental and Emotional Disturbance in the Law of Torts, 47 Harvard Law Review 1033, 1053 (1936). * * * "

If the law allowed liability based upon mere insults or indignities, there would be great danger of frivolous claims. In discussing the danger of frivolous suits, in cases where only insults or profanities are involved, Professor William Prosser, in Law of Torts, West Publishing Company (1971), states "There is the further and still more significant, evident and serious danger of fictitious claims and vexatious suits in such cases. Petty insult or indignity lacks, from its very nature, any convincing assurance that the asserted mental distress is genuine, or that it is serious, and unreasonable. When a citizen who has been called a son of a bitch testifies that the epithet has destroyed his slumber, ruined his digestion, wrecked his nervous system, and permanently impaired his health, other citizens who on occasion have been called the same thing without catastrophic harm may have legitimate doubts that he was really so upset, or that if he were his sufferings could possibly be so reasonable and justified under the circumstances as to be entitled to compensation.

Accordingly, it is generally held that there can be no recovery for mere profanity, obscenity, or abuse, without circumstances of aggravation, or for insults, indignities or threats which are considered to amount to nothing more than mere annoyances. " (Prosser Law of Torts at 54) (Footnotes omitted)

Thus, in Brooker v. Silverthorne, 111 S.C. 553, 99 S.E. 350 (1919), the defendant, who in a telephone altercation with a night exchange operator, called her "A God damned woman" and a "God damned liar," saying that, "If I were there, I would break your God damned neck.", was not held liable, regardless of the fact that the operator allegedly suffered severe...