Farnor v. Irmco Corp.

• Decision Date: 27 June 1979
• Docket Number: Nos. 77-1896,78-542,s. 77-1896
• Citation: 392 N.E.2d 591,73 Ill.App.3d 851,29 Ill.Dec. 894
• Parties: , 29 Ill.Dec. 894 Phyllisa A. FARNOR, Plaintiff-Appellee and Cross-Appellant, v. IRMCO CORPORATION and L. S. Cineski, Defendants-Appellants and Cross-Appellees.
• Court: United States Appellate Court of Illinois

Page 591

392 N.E.2d 591

73 Ill.App.3d 851, 29 Ill.Dec. 894

Phyllisa A. FARNOR, Plaintiff-Appellee and Cross-Appellant, v. IRMCO CORPORATION and L. S. Cineski, Defendants-Appellants and Cross-Appellees.

Nos. 77-1896, 78-542.

Appellate Court of Illinois, First District, Third Division.

June 27, 1979.

Rehearing Denied Aug. 2, 1979.

Kennedy, Golan, Morris, Spangler & Greenberg, Chicago (Erwin H. Greenberg, Chicago, of counsel), for defendants-appellants and cross-appellees.

Lord, Bissell & Brook, Chicago (Cornelius P. Callahan, Norman J. Lerum, Hugh C. Griffin, Chicago, of counsel), for plaintiff-appellee and cross-appellant.

McNAMARA, Justice:

Plaintiff, Phyllisa Farnor, brought this action against defendants, Irmco Corporation and L. S. Cineski, seeking damages for defendants' alleged intentional infliction of mental distress upon her. The suit arose out of defendants' refusal to allow plaintiff to move her furniture out of an apartment in the Belmont Hotel unless she paid rent. After a trial without a jury, the trial court entered judgment for plaintiff against Cineski in the amount of $5,000 and a judgment against Irmco in the amount of $10,000. The following evidence was adduced at trial.

In the summer of 1972, plaintiff, aged 25, was employed as an Amtrak Passenger Service Representative and was transferred to Chicago. In seeking a place to live, she visited the Belmont Hotel, which was managed by Irmco. Plaintiff was shown apartments in the hotel by Mrs. Mildred Glass, an Irmco employee and assistant manager of the hotel. Glass told plaintiff that if she was transferred out of Chicago before expiration of the lease, she could terminate the lease by giving two months' notice, paying one month's rent and forfeiting her security deposit. On July 20, 1972, plaintiff executed a two-year lease expiring September 30, 1974, for an unfurnished apartment at $225 per month. The lease was signed by plaintiff, by Glass and by defendant Cineski, manager of the hotel. The oral agreement with Glass was not incorporated into the lease. The lease provided that if plaintiff vacated the premises before expiration of the lease, the lessor had the right to relet the premises and hold plaintiff liable for any deficiency at the end of the term.

In June 1973, plaintiff was informed she was being transferred to Los Angeles. At that time, Glass informed plaintiff that in order to terminate the lease she would have to pay three months' rent and forfeit her security deposit.

When plaintiff paid her August rent, she told Glass she would be moving on September 14, 1973. She submitted a written request for use of the freight elevator on that day. On September 13, packers from the moving company arrived to pack plaintiff's belongings. Plaintiff telephoned Cineski to verify the availability of the freight elevator. Cineski replied that plaintiff would not be permitted to use the elevator until she paid what she owed the hotel. When plaintiff mentioned the oral agreement with Glass, Cineski stated that he did not "give a good goddamn what she (Glass) said", and "there are rules and to hell with anything else." He told plaintiff that she was "never going to get the goddamn stuff out of the apartment" unless she paid three months' rent and forfeited her security deposit. Cineski then hung up. Plaintiff called back immediately, but Cineski refused to discuss the matter and told her to set up an appointment with his secretary.

The movers arrived on the morning of September 14. Cartons, boxes, suitcases and furniture were moved out into the hallway near the freight elevator. An unidentified man told the movers he had orders that they were not permitted to use the freight elevator.

In response to a telephone call, an Amtrak representative gave plaintiff the name of an attorney. The attorney met with Cineski at the hotel, but the latter still refused plaintiff the use of the freight elevator.

During the afternoon, Cineski telephoned plaintiff and told her to remove her "goddamn" furniture from the hallway immediately or it would be confiscated. Plaintiff attempted to move the items back into the apartment by herself. Upon seeing her crying and distraught, the movers helped until all her belongings were removed from the hallway. The movers left at 3:00 p. m.

Late in the afternoon, plaintiff's attorney obtained an injunction prohibiting defendants from denying plaintiff use of the freight elevator. The movers, however, had gone and could not return until September 19.

Plaintiff remained in her apartment that evening. She testified that she was extremely nervous and emotionally distraught. She feared that, in addition to losing all her possessions, she would be compelled to pay three months' rent and forfeit her security deposit. As she rested in her bedroom, she heard someone in her apartment. When she arose, she saw only the door close. The door locks automatically when it is closed and can be opened only with a pass key.

Plaintiff left the hotel the following morning and flew to California. She reported to work aboard a train the next day and worked four consecutive days. She performed her duties satisfactorily and lost no time from work. Plaintiff testified that during this time period she was nervous and that a preexisting ulcerous condition was aggravated. Within two weeks after the incident, plaintiff made a long-distance call to a physician in Maryland concerning her ulcer. She sought no other medical treatment. Plaintiff's furniture was removed from the hotel without incident on September 19 and it arrived in California approximately three days later.

Defendants' motion for judgment at the close of plaintiff's case was denied. Defendants thereupon rested without presenting evidence. The trial court found defendants liable for the intentional infliction of emotional distress upon plaintiff, and entered judgments as we have noted. Irmco was awarded a set-off of $647.86 on its counterclaim for the amount due from plaintiff under the lease. The trial court denied plaintiff's motion to correct the judgments to reflect a single judgment of $15,000 against Irmco and Cineski jointly and severally. The court also denied her claim for attorney's fees. The trial court refused to rule on plaintiff's petition to recover costs and fees under section 41 of the Civil Practice Act (Ill.Rev.Stat.1977, ch. 110, par. 41), for disproving allegedly false statements made by defendants in their pleadings.

Defendants contend that the trial court erred in finding them guilty of the intentional infliction of emotional distress. They maintain that, as a matter of fact and law, the evidence adduced failed to support the trial court's judgment.

The following elements are essential to sustain a cause of action for intentional infliction of mental distress: extreme and outrageous conduct by the defendant; intent by the defendant to cause, or a reckless disregard of the probability of causing emotional distress; severe or extreme emotional distress suffered by the plaintiff; and an actual and proximate causation of emotional distress by the defendant's outrageous conduct. (Debolt v. Mutual of Omaha (1978), 56 Ill.App.3d 111, 13 Ill.Dec. 656, 371 N.E.2d 373; Eckenrode v. Life of America Insurance Company (7th Cir. 1972), 470 F.2d 1.) At issue in the present case is whether Cineski's conduct was extreme and outrageous and whether plaintiff suffered severe or extreme emotional distress.

We must first decide whether Cineski's conduct will support a cause of action for the tort of intentional infliction of emotional distress.

" 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 . . . ." (Restatement (Second) of Torts (1965), sec. 46, comment d.) Whether certain conduct can be characterized as extreme and outrageous necessarily depends on the facts of each case. (Knierim v. Izzo (1961), 22 Ill.2d 73, 174 N.E.2d 157.) A general concept of the type of conduct emerges, however, from those relatively few cases in this state which have upheld the cause of action.

In Knierim, the first case to recognize the tort of intentional infliction of emotional distress, plaintiff alleged that defendant threatened to and did kill her husband. In holding that plaintiff's complaint stated a cause of action, the supreme court noted that an objective standard must be used. Thus, the question is whether the conduct complained of would cause severe emotional distress to a person of ordinary sensibilities. In Eckenrode, the complaint was held to state a cause of action where it alleged that the defendant insurance company refused to make payments under an accidental death policy. Defendant's refusal to pay was based upon a bad faith insistence on a non-existent defense. The court recognized that refusal to pay, under circumstances where plaintiff's need for the proceeds was great and defendant's duty to pay was clear, could constitute extreme and outrageous conduct. More recently in Bureau of Credit Control v. Scott (1976), 36 Ill.App.3d 1006, 345 N.E.2d 37, defendant's counterclaim alleged that plaintiff, in an attempt to collect a debt, made a series of 15 harassing phone calls to defendant, to her parents, and to her place of employment, thus jeopardizing her job. In holding that the counterclaim stated a cause of action, this court stated at p. 1008, 345 N.E.2d at p. 39: "We cannot hold, as a matter of law, that the allegations contained in Count I of the counterclaim allege trivial hurts to which Scott has neurotically overreacted, or that what has been pleaded is a slight hurt which one must endure in a complex society."

[4-6] In comparison to the foregoing facts, we believe the conduct in the present case falls short of the extreme and outrageous conduct necessary to sustain a cause of action for the intentional infliction of emotional distress. The conduct...