Jones v. Harris

• Decision Date: 11 April 1977
• Docket Number: No. 720,720
• Citation: 35 Md.App. 556,371 A.2d 1104
• Parties: Robert H. JONES et al. v. William R. HARRIS.
• Court: Court of Special Appeals of Maryland

Page 556

35 Md.App. 556

371 A.2d 1104

Robert H. JONES et al. v. William R. HARRIS.

No. 720.

Court of Special Appeals of Maryland.

April 11, 1977.

Certiorari Granted June 29, 1977.

Gerard P. Uehlinger, Baltimore, with whom were Joseph G. Finnerty, Jr., Edward S. Digges, Jr., Francis B. Burch, Jr., Frazer F. Hilder and Piper & Marbury, Baltimore, on the brief, for appellants.

Paul A. Gibbons, Baltimore, with whom were Harry Fox and Fine & Klauber, P. A., Baltimore, on the brief, for appellee.

Argued before MENCHINE, LOWE and MASON, JJ.

MENCHINE, Judge.

William R. Harris (Harris) on January 7, 1976, filed a declaration claiming damages against Robert H. Jones The case was submitted to a jury in the Superior Court of Baltimore City and ultimately resulted in a verdict in favor of Harris against both Jones and General Motors for $3,500.00 compensatory damages and for $15,000.00 punitive damages. ²

(Jones) and General Motors Corporation (General Motors) for intentional infliction of emotional distress on June 2, 1975. An amended declaration subsequently filed alleged that the intentional infliction of emotional distress had been committed several months prior and subsequent to June 2, 1975. ¹

Jones and General Motors present the following questions on appeal:

'1. Did the trial court err by not granting Appellants' motion for directed verdict, because the evidence was insufficient to support a cause of action for intentional infliction of emotional distress?

2. Did the trial court err by not granting General Motors' motion for a directed verdict, because the evidence was insufficient to establish that the alleged conduct of Jones was within the scope of his employment or ratified by General Motors Corporation?

3. Did the trial court err by not granting Appellant's motion to arrest judgment in these circumstances, because of the irregularity in the rendition and receipt of the jury's verdicts?

4. Did the trial court err by admitting Appellee's wife's testimony, because it was improper and prejudicial in these circumstances?'

Basic to our consideration of the questions presented is the issue whether Maryland will recognize as a valid cause of action the tort of intentional infliction of emotional distress.

The issue is one of first impression in Maryland but has arisen in many other jurisdictions. A majority of the States now favor its recognition as a separate tort after earlier general repudiation of claims for emotional distress except as a parasitic element of damages accompanying a recognized tort.

Nowhere in this changing perspective more apparent than in the writings of the American Law Institute upon the subject.

1 Restatement of Torts, Ch. 2, § 46 (1934) rejected the separate tort in these unequivocal terms:

'TOPIC 5. The Interest In Freedom From Emotional Distress.

§ 46. Conduct Intended To Cause Emotional Distress Only.

Except as stated in §§ 21 to 34 and § 48, ³ conduct which is intended or which though not so intended is likely to cause only a mental or emotional disturbance to another does not subject the actor to liability

(a) for emotional distress resulting therefrom, or

(b) for bodily harm unexpectedly resulting from such disturbance.'

In the 1948 Supplement the diametrically opposite position was taken by the Institute, the following rule being declared:

'TOPIC 5. THE INTEREST IN FREEDOM FROM EMOTIONAL DISTRESS

§ 46. Conduct Intended To Cause Emotional Distress Only.

One who, without a privilege to do so, intentionally causes severe emotional distress to another is liable

(a) for such emotional distress, and

(b) for bodily harm resulting from it.'

1 Restatement of Torts 2d, Ch. 2, Emotional Distress, Topic 5, § 46 (1965) retreated from its 1948 position, therein stating the rule as follows:

'TOPIC 5. THE INTEREST IN FREEDOM FROM EMOTIONAL DISTRESS

§ 46. Outrageous Conduct Causing Severe Emotional Distress

(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

(2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress

(a) to a member of such person's immediate family who is present at the time, whether or not such distress results in bodily harm, or

(b) to any other person who is present at the time, if such distress results in bodily harm.' (Emphasis added to indicate substantive change.)

General recognition of the independent tort was asserted in 64 A.L.R.2d 100, ⁴ wherein it was said at 119-20:

' § 8. Intentional or reckless act.

. . . in many of the early cases statements recognizing generally that there can be no recovery for emotional distress alone can be characterized as dicta, and there now appears to be a definite trend toward the recognition of a right to recover for a Prosser, Law of Torts, Ch. 2 § 12 at 56 (4th Ed. HB, 1971) gives recognition to the independent tort and thus defines its boundaries:

severe disturbance of mental or emotional tranquillity resulting from an unprivileged act of defendant reasonably calculated to cause grave mental distress to plaintiff and committed intentionally or recklessly.'

'So far as it is possible to generalize from the cases, the rule which seems to have emerged is that there is liability for conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind.' ⁵

We have stated that the question whether the new tort is viable in Maryland is one of first impression. There are, however, clear guides to indicate a trend toward recognition of the emerging tort.

In their discourses upon and acceptance of this new tort, two distinguished authors, Prosser ⁶ and Magruder ⁷ have cited Great Atl. & Pacific Tea Co. v. Roch, 160 Md. 189, 153 A. 22 (1931), as an early precursor to recognition of intentional infliction of emotional distress as a separate tort.

In Roch, a jury's verdict for the plaintiff. was sustained when she became a 'nervous wreck' following the opening of a package containing a dead rat instead of the loaf of bread she had ordered. It is true that the decision of the Court of Appeals was grounded upon the explanation that the See also Mahnke v. Moore, 197 Md. 61, 77 A.2d 923 (1951), wherein damages were allowed for nervous shock without substantial physical impact when a young child was required by her father to witness her mother's murder and his own suicide. There were in that case also, lightly tied bonds to another tort or torts.

evidence would permit a conclusion by the jury that the agent of the defendant 'had carelessly and negligently performed his duty in substituting by mistake the dead art for the loaf of bread,' 160 Md. at 192, 153 A. at 23, thereby tying 'emotional distress,' as a parasitic element, to an action on the case for negligence. Nonetheless, the attached string was quite lightly tied, so that Roch does indeed 'pint the people to the goal an' in the traces lead 'em.' ⁸

We are persuaded that the new tort, in a proper case, is viable in this state.

The Subject Case as to General Motors

That the motion for directed verdict as to General Motors was improperly denied is very clear. There is not a scintilla of evidence that any conduct of defendant Jones against the plaintiff Harris was within the scope of Jones' real or apparent authority. Neither does the record show the slightest later ratification of Jones' actions.

The record shows that Harris filed two grievances against Jones, relative to the latter's alleged harassment of Harris.

The first (P.Ex. 1A) was filed on June 20, 1975, and read as follows:

'Protest Foreman R. Jones mimicking me and attempting to provoke me. This conduct is unbecoming a member of supervision and I demand higher supervision instruct R. Jones to conduct himself properly at all times in the future.'

That exhibit contained a notation of the following disposition: 'The supervisor will conduct himself properly at The second (P.Ex. 1C) was filed on August 28, 1975, and read as follows:

all times.' This exhibit showed upon its face that the [371 A.2d 1108] grievance was satisfactorily settled on July 31, 1975.

'Protest Foreman R. Jones continuously attempting to humiliate me. This member of supervision enters my work area and tells me not to get nervous and walks away. I demand management direct Foreman Jones to conduct himself properly at all times.'

That exhibit contained a notation of the following disposition: 'Supervisors will conduct themselves in a manner becoming to supervision. However, this employee was not under the supervision of Foreman Jones when this grievance was written.' This exhibit showed upon its face that the grievance was satisfactorily settled on September 8, 1975.

By Harris' own admission, the alleged harassment and humiliation by Jones did not extend beyond two months following June 1975.

It is of further significance that Harris did not carry his grievances beyond the initial stage authorized by the employer-union contract, although the union committeeman, testifying in behalf of Harris made crystal clear that an appeal 'to a higher step' would be taken, 'If we felt the case warranted it.' ⁹

The Subject Case as to Jones

We think the motion for directed verdict as to Jones stands in a different posture and compels full examination of the facts as they relate to the essential elements of the new tort.

The Supreme Court of Virginia in Womack v. Eldridge, 215 Va. 338, 210 S.E.2d 145 (1974), produced an admirable distillate from text writers and decisions to fix with reason, clarity and precision the boundaries of the new tort:

'We adopt the view that a cause of action will lie for emotional distress, unaccompanied by physical injury, provided four elements...