Hester v. Barnett

• Decision Date: 20 January 1987
• Docket Number: No. WD,WD
• Citation: 723 S.W.2d 544
• Parties: Harold and Hazel HESTER, Appellants, v. Donald R. BARNETT, Respondent. 36517.
• Court: Missouri Court of Appeals

Page 544

723 S.W.2d 544

Harold and Hazel HESTER, Appellants, v. Donald R. BARNETT, Respondent.

No. WD 36517.

Missouri Court of Appeals,

Western District.

Jan. 20, 1987.

David T. Greis, Kansas City, for appellants.

Larry Zahnd, Zahnd, Dietrich & Ross, Maryville, for respondent.

Before PRITCHARD, P.J., SHANGLER, J., and MARTIN, Special Judge.

SHANGLER, Judge.

The action for damages by the plaintiffs Hester, husband and wife, against defendant Barnett, a Baptist clergyman, commenced as a petition in defamation. The motion of the defendant to dismiss that petition was sustained, and the plaintiffs were granted leave to present a more definite and certain statement of the defamation. The petition as amended pleads not only defamation, but also five other separate causes of action denominated: [Count I] Ministerial Malpractice, [Count II] Alienation of Affections, [Count III] Defamation of Character, [Count IV] Intentional Infliction of Emotional Distress, [Count V] Invasion of Privacy, and [Count VI] Interference with Contract. The defendant Barnett moved to dismiss the petition as amended, and the court sustained the motion as to each of the several counts "for failure to state causes of action upon which relief may be granted." The plaintiffs appeal the judgment of dismissal.

A motion to dismiss concedes the truth of all facts well pleaded. In the assessment of the sufficiency of a petition under such a motion, therefore, all facts properly pleaded are assumed as true, the averments are given a liberal construction, and the petition is given the favor of those inferences fairly deducible from the facts alleged. Commercial Bank of St. Louis Co. v. James, 658 S.W.2d 17, 23[3-10] (Mo. banc 1983). A petition suffices against a motion to dismiss, accordingly, if the averments, given every reasonable intendment, invoke a substantive remedy. Hyde v. City of Columbia, 637 S.W.2d 251, 254[1-3] (Mo.App.1982); Rule 55.05. It is within the perspective of these maxims that we review the judgment of dismissal.

The first amended petition alleges these operative facts:

The plaintiffs Hester, husband and wife, reside in Nodaway County. The wife is the mother of Connie Wymer, Lee Wymer and Don Wymer, and the husband is their stepfather. The defendant Barnett is an ordained minister of the Baptist Church. The principals met when the minister visited the Hester home and presented himself to the family as an ordained Baptist clergyman. He invited them to trust and confide in him and assured them that any communication with him as minister would be kept in strictest confidence and not be divulged to anyone outside the Hester family. The husband and wife then confided in the minister that the three children, Connie, Lee and Don were beset with disciplinary and behavioral problems. The minister offered his family counseling services as the solution. Notwithstanding the prior assurances, the minister divulged to deacons of the church and members of the community the confidential communications from the family, and without their authority. The minister lied to these others about the communications and, in particular, that the Hesters abused the children and used them cruelly. The minister advised and instructed the children to lie to others as to the mode of the discipline so that they would eventually be removed from the home of the mother and stepfather. The minister undertook a course of action, which continues, designed to defame the Hesters in their community by denunciations that they are both irreligious and abusive parents. The minister thereafter apologized to the Hesters for this conduct and prayed for forgiveness in their presence, but nevertheless continues that course of conduct and refuses to retract the statements made to members of the public.

The petition alleges also that the minister intentionally and maliciously "set out to alienate the affections of one from the others," did alienate the children, Connie, Lee and Don, from the mother and stepfather, and attempted to induce the alienation of the wife from the husband.

The petition alleges also, by a catalogue of particulars, that the minister has, since January of 1984, used every opportunity to defame them, and from the pulpit as well as in letters and memoranda, church bulletins and publications, accused them of crimes, of physical and emotional abuse of the children and other relations, has falsely accused them of such conduct over the Hot Line for Child Abuse, and has organized and directed meeting of neighbors to publish the libels and slanders against the Hesters. The petition alleges also that the minister has harrassed, intimidated, threatened and caused the Hester employees to leave employment and so interfered with the Hester farming business.

The petition pleads these allegations as a continuous narrative, punctuated into the six designations of causes of action already described: Ministerial Malpractice, Alienation of Affections, Defamation of Character, Intentional Infliction of Emotional Distress, Invasion of Privacy, and Interference with Contract. The judgment dismisses them all. Our review determines whether as to any count the facts pleaded invoke a substantive remedy, and hence entitle the pleaders to a trial.

COUNT I MINISTERIAL MALPRACTICE

The plaintiffs acknowledge that ministerial malpractice is a tort not known in Missouri law. They argue that the allegations of the petition, that the minister disclosed confidential communications from the Hesters, alienated the affections of the Hester family members, interfered with the business relationship between the Hesters and their farm employees, defamed the Hesters from the pulpit and otherwise in public, invaded their privacy and inflicted intentional emotional distress upon them, all bespeak breaches of a professional standard of care, and hence are suitable for redress by the malpractice remedy.

The term malpractice means professional misconduct. Black's Law Dictionary, p. 864 [5th ed. 1979]. It means "the failure to use that degree of skill and learning To avoid a redundant remedy, therefore, any functional theory of clergy malpractice needs address incidents of the clergy-communicant relationship not already actionable. ⁴ The duties of a clergyman most nearly approximate to an existent professional practice, and hence most accountable to minimum professional standards [preeminent commentators agree], include that of spiritual counseling: the advice a member of the clergy renders to meet the spiritual, emotional, and religious needs of the communicant. ⁵ These authorities agree also--and that, whether they favor or disfavor the clergy malpractice remedy--that the validity of such a tort cause of action is most typically articulated in terms of the pastoral counseling function. The only reported case in which the petition presented the theory of clergy malpractice in terms of negligent counsel and spiritual advice leaves unresolved the question whether such a petition is justiciable.

                ordinarily used under the same or similar circumstances by members of [that] profession."   MAI 11.06 [3d ed. 1981];  see also Restatement (Second) of Torts § 299A (1965).  It means, by very definition, the breach of a professional duty unique to that profession.  I Mo.  Tort Law [Mo.Bar 1985], § 1.6 [Medical Malpractice];  § 2.1 [Attorneys Malpractice];  § 2.14 [Accountants Malpractice];  § 2.30 [Insurance Agents and Brokers Malpractice].  Malpractice, therefore, is not a theory of ordinary negligence or of intentional tort.  The ordinary negligence or intentional tort of any person is already actionable, regardless of its "professional" color.  Thus, also, a cleric is amenable to suit for alienation of affections albeit guised as a religious practice, 1 for assault and battery committed during a religious service, for a malicious prosecution of parents informed against by the cleric for child abuse, for the obtention of donations of money by fraud, 2 and for other incidences of intentional tort in the exercise of the religious duty. 3
                

That case, Nally v. Grace Community Church of the Valley, 157 Cal.App.3d 912, 204 Cal.Rptr. 303 (1984), was a claim by parents against a church and its pastors for the wrongful death of a son who committed suicide after counseling by the pastors. The young man, Kenneth Nally, had become depressed after a rift with his girlfriend. Shortly afterward, to the chagrin of his parents, the son converted from Catholicism to Protestantism and became a communicant of the Grace Community Church, a fundamentalist sect. He attended a Bible institute at the church and counseled with the pastor frequently to discuss his problems with the girlfriend and family. His depression deepened, and at the request of his mother, Nally consulted a physician, who placed him on antidepressent medication. Nally attempted suicide, and was hospitalized. Nally stayed at the home of the pastor after release, to avoid the tensions at home. He refused to keep psychiatric appointments since, as he believed The petition of the parents pleaded three counts. Count I, designated "CLERGYMAN MALPRACTICE," alleged that the pastor in his role as spiritual counselor actively discouraged the disturbed parishioner from resort to professional psychiatric or psychological care outside the church. Instead, the pastor advised Nally to consult with church counselors, pray, read the Bible, and listen to taped sermons. The parents alleged that by such conduct the pastor negligently failed to exercise the standard of care for a clergyman of his sect and training with the proximate result that Nally committed suicide. Count II, designated "NEGLIGENCE," alleged the church and the pastor were negligent in the failure to require proper psychological training for their lay spiritual counselors. Count III, designated "OUTRAGEOUS CONDUCT," alleged that the defendants church and pastor disparaged, ridiculed and denigrated...