Gall v. Great Western Sugar Co.

• Decision Date: 01 March 1985
• Docket Number: No. 83-636,83-636
• Citation: 219 Neb. 354,363 N.W.2d 373
• Parties: Debby GALL, Appellant, v. GREAT WESTERN SUGAR COMPANY, a Corporation, et al., Appellees.
• Court: Nebraska Supreme Court

Page 373

363 N.W.2d 373

219 Neb. 354

Debby GALL, Appellant, v. GREAT WESTERN SUGAR COMPANY, a Corporation, et al., Appellees.

No. 83-636.

Supreme Court of Nebraska.

March 1, 1985.

Syllabus by the Court

1. Summary Judgment. The primary purpose of the summary judgment procedure is to pierce allegations of pleadings and show conclusively that the controlling facts are other than as pled, and thus resolve, without the expense and delay of trial, those cases where there exists no genuine issue either as to any material fact or as to the ultimate inferences to be drawn therefrom, and the moving party is entitled to judgment as a matter of law.

2. Summary Judgment. In considering a motion for summary judgment, the evidence is to be viewed most favorably to the party against whom the motion is directed, giving to that party the benefit of all the favorable inferences which may reasonably be drawn from the evidence.

3. Summary Judgment. The party moving for summary judgment has the burden of showing that no genuine issue as to any material fact exists; that party must therefore produce enough evidence to demonstrate his entitlement to a judgment if the evidence remains uncontroverted, after which the burden of producing contrary evidence shifts to the party opposing the motion.

4. Causes of Action: Mental Distress. The elements of a cause of action based upon the intentional infliction of emotional distress are (1) that there has been intentional or reckless conduct, (2) that the conduct was so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and is to be regarded as atrocious and utterly intolerable in a civilized community, and (3) that the conduct caused emotional distress so severe that no reasonable person should be expected to endure it.

5. Mental Distress: Liability. One has no liability where he has done no more than insist upon his legal rights in a permissible way, even though he is well aware that such insistence is certain to cause emotional distress.

6. Judgments: Appeal and Error. A proper result will not be reversed merely because it was reached for the wrong reason.

Robert G. Pahlke of Van Steenberg, Brower, Chaloupka, Mullin & Holyoke, Scottsbluff, for appellant.

John F. Simmons of Wright, Simmons & Selzer, Scottsbluff, for appellees.

KRIVOSHA, C.J., and BOSLAUGH, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

CAPORALE, Justice.

Plaintiff-appellant, Debby Gall, alleges that the defendants-appellees, Great Western Sugar Company and its parent, Hunt International Resources Corporation, intentionally inflicted emotional distress upon her and breached their duty of fair and good faith dealing by certain telephone calls they caused to be made to her at her place of employment. In this appeal Debby Gall claims the trial court erred in sustaining Great Western's motion for summary judgment, in sustaining Hunt International's special appearance, and in dismissing her action as to both defendants. We affirm.

We first consider Debby Gall's claim that the trial court erroneously sustained Great Western's motion for summary judgment. As we recently reiterated, the primary purpose of the summary judgment procedure is to pierce the allegations made in the pleadings and show conclusively that the controlling facts are other than as pled, and thus resolve, without the expense and delay of trial, those cases where there exists no genuine issue either as to any material fact or as to the ultimate inferences to be drawn therefrom, and the moving party is entitled to judgment as a matter of law. Further, in considering a motion for summary judgment, the evidence is to be viewed most favorably to the party against whom the motion is directed, giving to that party the benefit of all the favorable inferences which may reasonably be drawn from the evidence. Additionally, the party moving for summary judgment has the burden of showing that no genuine issue as to any material fact exists; that party must therefore produce enough evidence to demonstrate his entitlement to a judgment if the evidence remains uncontroverted, after which the burden of producing contrary evidence shifts to the party opposing the motion. Witherspoon v. Sides Constr. Co., 219 Neb. 117, 362 N.W.2d 35 (1985).

Although not without contradiction, the various depositions, affidavits, answers to interrogatories, and responses to requests for admissions received in evidence, viewed most favorably to Debby Gall and giving her the benefit of all favorable inferences to be drawn from them, disclose the following facts relevant to the allegations in her petition. Debby Gall was employed at the Bank of Gering and was pregnant, the latter fact being known to one Elizabeth Voyles, a claims agent employed by Great Western, who received her salary from Hunt International. Carl Gall, Debby's husband, was employed by Great Western. On November 28, 1980, Carl Gall was involved in an employment accident, as the result of which he sustained an injury to his right forearm such as to create doubt as to whether his right hand could be saved. Great Western made arrangements and paid for Carl Gall to be treated at Denver, Colorado, by Dr. Frank Scott, a physician specializing in the treatment of hands. Debby Gall accompanied her husband to Denver. Elizabeth Voyles' first contact with Debby Gall appears to have occurred when Elizabeth Voyles telephoned Carl Gall in order to have him complete some documents. At this time Elizabeth Voyles talked with Debby Gall to determine whether the latter had a place to stay while in Denver. The two also talked with each other, during the times that Carl Gall underwent treatment in Colorado, with regard to facilitating payments of compensation by Great Western to Carl Gall. There seems to be no dispute with respect to the benefits paid by Great Western to Carl Gall. His workers compensation checks were sent to Debby Gall at her place of work, at her request. Debby Gall also asked to be called at work should information be needed.

After the Galls returned to Gering, Elizabeth Voyles, failing in her efforts to reach Carl Gall, telephoned Debby Gall at the latter's place of work on February 19, 1981, and advised her that Great Western had a job which could be performed by a person with only one arm. Elizabeth Voyles stated that since it was not certain that Carl Gall's hand could be saved, it would be desirable that he accept this job, which had to be filled immediately and which paid more than the disability benefits he was receiving; that it was acceptable to Dr. Scott that he do so; and that if he did not accept the job, he would be fired and all his insurance would be canceled. It developed that although Dr. Scott had initially concluded that Carl Gall could return to work as of February 19, 1981, he changed his mind on February 26 and instituted a program of physical therapy. Elizabeth Voyles advised Great Western's plant manager that Carl Gall would not be able to return to work. Although Debby Gall received similar telephone calls at her work from Elizabeth Voyles after February 19, the record does not establish that she received any such telephone calls after February 26.

Debby Gall took offense to the calls, saying she was made to feel as if her husband were not doing anything. She immediately broke out in hives, to which she had a lifelong proneness, experienced intermittent headaches, became nervous, cried, could not accomplish her work at the Gering bank without help, experienced tiredness, and lost weight. The hives cleared up in an hour and a half or so, and the headaches responded to medication within 45 minutes. Debby Gall's mother testified by affidavit that at one time she was fearful her daughter might miscarry because she discharged blood; however, Debby Gall did not mention it. Debby Gall became concerned that if her husband were fired, there would not be insurance to pay for her pregnancy and delivery expenses. However, she was enrolled in an insurance program which provided such benefits through her own employment at the Gering bank. Although the physician treating Debby Gall's pregnancy wondered why she was tired and her weight fluctuated, she never mentioned the telephone calls to him. When she mentioned her headaches, he attributed them to her pregnancy. She underwent no special medical or other professional treatment for the complaints she attributed to the telephone calls. The record does not establish that Debby Gall made Elizabeth Voyles aware of the upsetting effects of the telephone calls.

Debby Gall left her employment in an advanced state of pregnancy on May 29, 1981. Her child was born on July 1, 1981, and she did not return to work. The insurer providing coverage through the bank paid Debby Gall's pregnancy and delivery expenses; no claim was made to Great Western.

We have had a number of occasions to consider the law applicable to the intentional infliction of emotional distress, or the tort of outrage, over the last half century. This court held as early as 1934 that the intentional infliction of emotional distress is actionable even where no physical injury results. In LaSalle Extension University v. Fogarty, 126 Neb. 457, 253 N.W. 424 (1934), recovery was permitted where the creditor threatened to sue the defendant and counterclaimant debtor, appealed to the defendant's employer, and made the defendant's neighbors aware of the indebtedness, all "designedly and for the purpose of harassing the defendant until he would meet their demands, whether the sum claimed was justly due or not." Id. at 463, 253 N.W. at 426.

More recently, in affirming the sustainment of defendant's demurrer in Paasch v. Brown, 193 Neb. 368, 227 N.W.2d 402 (1975), we adopted the Restatement rule that one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional...