Elza v. Liberty Loan Corp.

Decision Date21 October 1981
Docket NumberNo. 2-1180A371,2-1180A371
Citation426 N.E.2d 1302
PartiesBroderick ELZA, Kris Elza, Andrew Wayne Elza, and Tylor Monroe Elza, Appellants (Plaintiffs below), v. LIBERTY LOAN CORPORATION, Everett B. Best, S. M. Friedrich, C. Richard Ickrath, James M. Lappe, Thomas P. Slaughter, Harold Frederick, and Judy Foreman, Appellees (Defendants below).
CourtIndiana Supreme Court

Appeal from the Marion Superior Court; Betty Barteau, Judge.

ON PETITION TO TRANSFER

HUNTER, Justice, dissenting to denial of transfer.

I must respectfully dissent from this Court's refusal to grant the Elzas' petition to transfer, wherein they seek review of the memorandum decision of the Second District Court of Appeals, Elza et al. v. Liberty Loan Corporation, 422 N.E.2d 760 (1981) (Sullivan, J., concurring with opinion). There, on the basis of Boden v. Del-Mar Garage, (1933) 205 Ind. 59, 185 N.E. 860, and what is commonly characterized as the "impact" rule, the Court of Appeals affirmed the partial summary judgment granted Liberty Loan Corporation. For reasons explained hereinafter, I would grant transfer, vacate the opinion of the Court of Appeals, and reverse the trial court's entry of partial summary judgment.

From the outset it is imperative to emphasize that the cause before us does not involve allegations of negligence, as are generally present in cases involving the "impact" doctrine. Rather, the case at bar rests on the Elzas' contention that employees of the defendant loan company entered their home and "intentionally, wilfully and maliciously" threatened, assaulted, struck and beat Broderick Elza, father of the household. The nature of the conduct allegedly present here takes this case outside the purview of the "impact" rule.

For purposes of the question before us, we are required by our procedural rules to accept as true the Elzas' allegations of fact. Ind.R.Tr.P. 56; Papp v. City of Hammond, (1967) 248 Ind. 637, 230 N.E.2d 326. The facts as alleged are not controverted by any evidence 1 offered by the Liberty Loan Corporation in support of its motion; rather the allegations are supported by Broderick Elza's answers to interrogatories propounded by Liberty Loan.

The record reveals that on May 31, 1978, Broderick Elza, his wife, Kris, and their two sons, Andrew (age four) and Tylor (age three), were at their home in Richmond, Indiana. There was a knock on the door, and Harold Frederick and Judy Foreman requested admittance. Unbeknownst to the Elzas, Frederick and Foreman were employees of the Liberty Loan Corporation.

Once inside, the two employees produced a list of furniture which they claimed was subject to a mortgage held by Liberty Loan. A discussion between the employees and the Elzas ensued; the Elzas maintained some of the furniture listed had belonged to Kris "for years." Frederick and Foreman then left the premises.

In approximately half an hour, they returned to the Elza household. A second discussion occurred, after which Foreman left the house. At that point Harold Frederick called Broderick Elza a "lying little punk" and told Broderick to meet him "behind Liberty Loan at 6:00." Broderick asked Frederick to leave the house. Then, with Kris, Andrew, and Tylor watching from ten feet away, Frederick proceeded to shove Broderick against the sink, counter and cabinets, stick his finger in Broderick's face, and beat upon Broderick's chest. He again told Broderick to "meet him later" so he could "finish" Broderick. Frederick then left the Elzas' house and joined Foreman in the car. The two employees sat in the Elzas' driveway for "several minutes" and finally departed.

The Elzas filed suit to recover damages they allegedly sustained by virtue of Frederick's conduct within their home. Their complaint included counts whereby Kris, Andrew, and Tylor each sought damages for the mental distress they suffered as a result of watching Frederick batter Broderick. These counts were the subject of Liberty Loan Corporation's motion for partial summary judgment.

Liberty Loan based its motion upon the general rule of this jurisdiction that damages for mental distress are not recoverable unless the claimant suffered contemporaneous physical impact. The Elzas responded that the so-called "impact" rule applied only to cases of negligence, and not, as present here, to conduct of an intentional nature; they asserted Indiana case precedent permitted recovery for emotional disturbances proximately caused by an intentional act. The trial court granted the motion. Judgment was entered on the counts, and the Elzas perfected their appeal.

The parties again presented their opposing contentions. The Court of Appeals, relying on the "impact" rule as implemented in Boden v. Del-Mar Garage, supra, upheld the trial court. Judge Sullivan, who issued a concurring opinion, premised his agreement with the majority solely on respect for stare decisis. His concurring opinion reads in its entirety:

"I concur because Boden v. Del-Mar Garage (1933) 205 Ind. 59, 185 N.E. 860 is binding upon us. In my view, however, it would not be inappropriate for our Supreme Court to reconsider that precedent in the light of the current law in other jurisdictions recognizing a right of recovery for the intentional infliction of mental distress. See Annot., 5 A.L.R.4th 833 (1981); Annot., 94 A.L.R.3d 486 (1979); 38 Am.Jur.2d, Fright, Shock, and Mental Disturbance § 38 (and cases cited therein) (1968)." Elza et al. v. Liberty Loan Corporation et al., supra, at 6.

I am not convinced that Boden is dispositive of the facts; Boden, which was overruled in part by Troue v. Marker, (1969) 253 Ind. 284, 252 N.E.2d 800, stands in irreconcilable conflict with numerous cases on the point of law before us. For that reason alone this Court should address the Elzas' petition to transfer. I wholeheartedly agree with Judge Sullivan, however, that if Boden is the current law of this jurisdiction, then this Court should re-examine that precedent. Our re-assessment would not only warrant an examination of the law of other jurisdictions, but also the common law precedent of Indiana which Boden directly contradicts. The case before us is entirely appropriate to that purpose, for the parties, at every level of these proceedings, have pursued their contrary positions with an unfailing finesse.

In Boden v. Del-Mar Garage, supra, plaintiff sought recovery, among other alleged damages, for the mental distress she sustained by watching her husband be knocked down and injured by an automobile. She alleged the driver had intentionally and maliciously hit her husband. The trial court sustained a demurrer to her complaint. On appeal, this Court upheld the trial court's judgment on the basis that there was "no physical injury to her." 205 Ind. at 70, 185 N.E. at 864. Having based its decision on the "impact" rule, albeit without citation to legal authority, the Court continued:

"The appellant contends, by reason of the fact that her complaint is based upon a wilful and intentional tort, she is entitled to recover, and cites cases to support her contention. The cases cited, however, are practically all based upon actions for alienation of affections and are not in point on the question involved. In this class of cases the act of interfering with the marital relation is wilful and malicious and its natural and probable result is to accomplish the injury complained of and it is not necessary that there should be any pecuniary loss." Id.

We, of course, are not cognizant of the cases argued to the Court in Boden; research reveals, however, that extant at that time were numerous cases directly contrary to the Court's position.

Those cases stood, and continue to stand, for the proposition that the recovery of damages for mental distress in tort actions does not require proof of contemporaneous physical impact, when two conditions are present: (1) the defendant's conduct was intentional, and (2) the conduct should reasonably have been anticipated to provoke a severe emotional disturbance. Montgomery v. Crum, (1928) 199 Ind. 660, 161 N.E. 251 (abduction of plaintiff's child gives rise to compensable injuries for mental distress); Harness v. Steele, (1902) 159 Ind. 286, 64 N.E. 875 (false arrest and imprisonment gives rise to compensable injuries for humiliation and mortification); Kline v. Kline, (1902) 158 Ind. 602, 64 N.E. 9 (assault gives rise to compensable injuries for fright and mental anguish); Pennsylvania Co. v. Bray, (1890) 125 Ind. 229, 25 N.E. 439 (wrongful ejection from train gives rise to compensable injury for indignity); Felkner v. Scarlet, (1867) 29 Ind. 154 (seduction of daughter gives rise to compensable injuries for family dishonor and injured feelings); Pruitt v. Cox, (1863) 21 Ind. 15 (seduction of daughter gives rise to compensable mental distress).

Each of these cases involved intentional conduct. In each, mental distress was recognized as recoverable without proof of physical impact to the party claiming the distress. In Montgomery, Felkner, and Pruitt, third party family members were permitted to recover for their mental distress. Why the Court in Boden ignored this precedent can only be the subject of speculation; 2 suffice it to say that Boden stands in irreconcilable conflict with the cases cited heretofore.

In view of the weight of authority which directly contravenes Boden v. Del-Mar Garage, supra, it is no surprise that Boden has never been cited as authority for the question before us. Meanwhile, post-Boden, our courts have continued to recognize the rule in Montgomery v. Crum, supra; Harness v. Steele, supra; Kline v. Kline, supra; Pennsylvania Co. v. Bray, supra; and Felkner v. Scarlet, supra, as controlling. See, e. g., Charlie Stuart Oldsmobile,...

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