Givens v. Hixson

• Decision Date: 29 March 1982
• Docket Number: No. 81-243,81-243
• Citation: 631 S.W.2d 263,275 Ark. 370
• Parties: Earl A. GIVENS and his wife, Appellants, v. Robert HIXSON, Appellee.
• Court: Arkansas Supreme Court

Page 263

631 S.W.2d 263

275 Ark. 370

Earl A. GIVENS and his wife, Appellants, v. Robert HIXSON, Appellee.

No. 81-243.

Supreme Court of Arkansas.

March 29, 1982.

Rehearing Denied May 3, 1982.

Jay W. Dickey, Jr., Pine Bluff, for appellants.

Laser, Sharp & Huckabay, Little Rock, for appellee.

SMITH, Justice.

In January, 1980, the plaintiff Hixson employed the defendant Givens to manage Hixson's 800-acre farm property for one year. Givens went to work on February 1, but Hixson discharged him on March 19. When Hixson brought this action in unlawful detainer to recover possession of the house that Givens was occupying on the farm, Givens and his wife filed a counterclaim in which Givens sought damages for breach of contract and both he and his wife sought damages in tort for severe emotional distress and bodily harm caused by the alleged outrageous manner in which Givens was discharged. On the basis of the discovery depositions of both Hixson and Givens, Hixson moved for a summary judgment with respect to the tort claim only. This appeal from the partial summary judgment granting that motion comes to us as a tort case. Rule 29(1)(o). The order is appealable. Findley v. Time Ins. Co., 264 Ark. 647, 573 S.W.2d 908 (1978).

When, as here, the movant makes a prima facie case for a summary judgment, the other party must discard the cloak of formal allegations and meet proof with proof by showing that an issue of fact exists. Cummings, Inc., v. Beardsley, 271 Ark. 596, 609 S.W.2d 66 (1980). We therefore disregard arguments based on the pleadings, such as the assertion that Hixson enticed Givens away from his former employer, and state the actual pertinent proof in its light most favorable to Givens.

Givens testified on discovery that in January, 1980, after having managed J. P. Walt's farm, then 1,600 acres, for 21 years, he had trouble finding the necessary workers for that sized farm and decided to seek a job on a smaller place. His inquiries led him to apply to Hixson for the managership of Hixson's 800-acre place. After the two men had agreed upon a one-year contract Givens for the first time told Walt that he was changing jobs.

On March 17 Hixson told Givens that he was dissatisfied with his work. On March 19 Hixson discharged Givens while the two men were outside a John Deere store, where Hixson thought Givens had been spending too much time idling. No one else was present. Givens's total testimony about the firing amounted to this: Hixson's face was red, and he talked "like he wanted to jump all over me. Said, 'We're through. You don't work for me anymore.' Told me to carry the truck and park it, and said: 'I'll put you in the road.' Just like that." In somewhat different language Givens also described the incident in these words: "(H)e said, 'We're through.' I asked him what he meant. He said, 'You don't work for me anymore.' He said, 'You haven't been doing a thing all morning, but sitting down there on that stool around that fire.' "

Givens also testified that after the firing he was depressed, could not sleep or eat, lost weight, and entered a hospital a month later (apparently owing to a heart condition). He testified, however, that he had been hospitalized for angina pains in 1977 and had been taking medicine every day, that he had told Hixson that he was in pretty good health, and that Hixson knew nothing special about Givens's condition and had not been told that Givens was easily upset.

The new and still developing tort of outrage is not easily established. It requires clear-cut proof. "Liability has been found only (our italics) 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." Restatement of Torts (2d), § 46, Comment d (1965); M. B. M. Co. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980). It is for the trial court to determine, in the first instance, whether the conduct may reasonably be regarded as so outrageous as to permit recovery. Restatement, id., Comment h. Merely describing conduct as outrageous does not make it so. If Givens's testimony presents an issue of fact, then any...