Morrow v. Kings Dept. Stores, Inc.

• Decision Date: 04 May 1982
• Docket Number: No. 8115SC643,8115SC643
• Citation: 290 S.E.2d 732,57 N.C.App. 13
• Court: North Carolina Court of Appeals
• Parties: Harriet Lee MORROW, Appellant, v. KINGS DEPARTMENT STORES, INC., and Burns International Security Services, Inc., Appellees.

Page 732

290 S.E.2d 732

57 N.C.App. 13

Harriet Lee MORROW, Appellant, v. KINGS DEPARTMENT STORES, INC., and Burns International

Security Services, Inc., Appellees.

No. 8115SC643.

Court of Appeals of North Carolina.

May 4, 1982.

Graham & Cheshire by Lucius M. Cheshire and D. Michael Parker, Hillsborough, for appellant.

Johnson, Patterson, Dilthey & Clay by Robert W. Sumner, Raleigh, for appellee, Kings Dept. Stores, Inc.

Young, Moore, Henderson & Alvis by Beth R. Fleishman and Robert C. Paschal, Raleigh, for appellee, Burns Intern. Security Services, Inc.

WHICHARD, Judge.

I.

Plaintiff sought compensatory and punitive damages from defendants on the basis of the following allegations:

4.

That on or about May 3, 1980, plaintiff entered the Kings Department Store located on Hillsborough Road, Durham, North Carolina. Plaintiff purchased several items from said department store, including two shirts, a pair of shoes and a housecoat. After paying for said items, plaintiff proceeded to leave said department store. Upon approaching the exit door, plaintiff was stopped by a man dressed in the uniform of a security guard. Said man removed a shirt from the bag being carried by the plaintiff which contained the items plaintiff had purchased from said department store.

5.

Plaintiff is informed and believes, and upon such information and belief alleges that the man who removed the shirt from the bag being carried by the plaintiff as alleged above was an employee of defendant, Burns International Security Services, Inc.

6.

That plaintiff is informed and believes, and upon such information and belief alleges that at the time the acts complained of above occurred, the man who stopped the plaintiff and removed the shirt from her bag was acting as an agent of and under the supervision and control of the defendant, Kings Department Store, Inc.

7.

That as a result of the acts complained of above, plaintiff suffered severe emotional distress and great embarrassment in that the acts complained of above occurred before numerous onlookers, including a friend of the plaintiff's.

8.

That plaintiff never recovered the shirt taken from her by the man dressed as a security guard as alleged above.

Defendants moved to dismiss under G.S. 1A-1, Rule 12(b)(6), for failure to state a claim upon which relief can be granted. The trial court ruled that the complaint stated a claim "for conversion of one shirt," but failed to state a claim "for severe emotional distress and great embarrassment" or for punitive damages. It ordered "that the ... prayer for punitive damages and damages for severe emotional distress and great embarrassment be dismissed."

Plaintiff appeals, and we affirm.

II.

Plaintiff contends G.S. 1A-1, Rule 12(b)(6), does not allow dismissal of some claims if other claims in the complaint are not similarly subject to dismissal. The contention is without merit. A party may state in one pleading "as many separate claims ... as he has ...." G.S. 1A-1, Rule 8(e)(2). G.S. 1A-1, Rule 12(b), permits assertion by motion of a defense to "a claim for relief in any pleading." (Emphasis supplied.) It does not require that the assertion be to "the claims for relief." It appears the clear intent of the rule to permit dismissal of some claims without requiring dismissal of all. Our Supreme Court implicitly approved such partial dismissals in Stanback v. Stanback, 297 N.C. 181, 254 S.E.2d 611 (1979), and Newton v. Insurance Co., 291 N.C. 105, 229 S.E.2d 297 (1976).

III.

Plaintiff further contends her complaint suffices to allow recovery for emotional distress under one or more of the following "legal theories": assault, battery, slander, intentional infliction of mental suffering, and invasion of privacy. The contention requires examination of the complaint in light of the standard for determining a Rule 12(b)(6) motion to dismiss for failure to state a claim.

Our Supreme Court has stated:

" 'A [complaint] may be dismissed on motion if clearly without any merit; and this want of merit may consist in an absence of law to support a claim of the sort made, or a fact sufficient to make a good claim, or in the disclosure of some fact which will necessarily defeat the claim,' [b]ut a complaint should not be dismissed for insufficiency unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim." Sutton v. Duke, 277 N.C. 94, [102-03], 176 S.E.2d 161, 166 (1970), quoting Moore, Federal Practice, § 12.08 (1968). (Emphasis original.)

Snyder v. Freeman, 300 N.C. 204, 208-09, 266 S.E.2d 593, 597 (1980). See also Presnell v. Pell, 298 N.C. 715, 719, 260 S.E.2d 611, 613 (1979); Advertising Co. v. City of Charlotte, 50 N.C.App. 150, 152, 272 S.E.2d 920, 922 (1980); Cassels v. Motor Co., 10 N.C.App. 51, 55, 178 S.E.2d 12, 15 (1970). "[D]espite the liberal nature of the concept of notice pleading, [however,] a complaint must nonetheless state enough to give the substantive elements of at least some legally recognized claim or it is subject to dismissal under Rule 12(b)(6)." Stanback v. Stanback, 297 N.C. 181, 204, 254 S.E.2d 611, 626 (1979), citing Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970). Accord, RGK, Inc. v. Guaranty Co., 292 N.C. 668, 674-75, 235 S.E.2d 234, 238 (1977). "A claim for relief must still satisfy the requirements of the substantive laws which gave rise to the pleadings, and no amount of liberalization should seduce the pleader into failing to state enough to give the substantive elements of his claim." Leasing Corp. v. Miller, 45 N.C.App. 400, 405, 263 S.E.2d 313, 317, disc. review denied, 300 N.C. 374, 267 S.E.2d 685 (1980). While an incorrect choice of theory should not result in dismissal of the claim, the allegations must suffice to state a claim under some legal theory. Stanback, 297 N.C. at 202, 254 S.E.2d at 625.

The essential allegations of the complaint here were as follows: Plaintiff purchased several items from defendant Stores. As she was departing the store following payment for these items, she was detained by a uniformed security guard, an employee of defendant Security Services acting as an agent of defendant Stores. The guard, in the presence of "numerous onlookers," including a friend of plaintiff's, removed a shirt from the bag in which plaintiff was carrying the items purchased. Plaintiff, as a result, suffered severe emotional distress and great embarrassment.

The trial court ruled that the complaint stated a claim for conversion. Defendants did not cross appeal from that ruling, and it thus is not before us. For purposes of this appeal we assume the complaint suffices to state a claim for conversion; and although plaintiff makes no argument in this regard, we consider whether plaintiff can recover for emotional distress in an action for conversion. If so, the trial court erred in dismissing her prayer for damages therefor insofar as it related to the conversion claim.

The observation is frequently made that damages for mental suffering may be recovered parasitic to a cause of action in tort that exists independently of the mental harm. Yet, neither the rule nor the extent of its application is clearly stated in the cases. The rule is usually applied in cases in which an invasion of the person, reputation or other dignitary interest has occurred. In these cases recovery extends to any mental harm reasonably related to the defendant's conduct....

The greatest uncertainty in North Carolina and elsewhere in relation to application of the parasitic damages rule arises in connection with actions that primarily involve invasions of property interests. In many of the cases upholding recovery in such actions from other jurisdictions, the defendant's conduct has involved a significant element of abuse, threat or intimidation. Courts have characterized this conduct as wilfull or malicious and on that basis have allowed recovery for emotional distress. When an element of aggravation is not present, broad generalizations about the law in other jurisdictions become difficult.

Byrd, Recovery for Mental Anguish in North Carolina, 58 N.C.L.Rev. 435, 443-44 (1980). Cases involving recovery for mental anguish in connection with an action for conversion of personal property are collected in Annot., 28 A.L.R.2d 1070, § 7 (1953). Several jurisdictions allow such recovery, especially when the conversion involves malice or insult.

It appears that absent malice, wantonness, or other aggravating circumstances, this jurisdiction does not allow recovery for mental anguish in such actions. Chappell v. Ellis, 123 N.C. 259, 31 S.E. 709 (1898), though of great age, is controlling. The court there, in an action to recover damages for the unlawful seizure and detention of personal property, granted defendants a new trial because of admission of evidence tending to show plaintiff's mental suffering "disconnected with any allegation of malice or wantonness on the part of the defendants." Id. at 264, 31 S.E. at 711. The court stated: "The doctrine of mental suffering or 'mental anguish,' ... contemplates purely compensatory damages, and, as far as we are aware, has never been applied to cases like that at bar." Id. at 261, 31 S.E. at 710.

The complaint here neither contains nor implies allegations of malice, wantonness, or other aggravating circumstances. It thus fails "to state enough to give the substantive elements of [a] claim" for recovery for emotional distress grounded on an alleged act of conversion, Leasing Corp., 45 N.C.App. at 405, 263 S.E.2d at 317; and the court did not err in dismissing the prayer for damages for emotional distress insofar as it related to the conversion claim.

Plaintiff's contention that the complaint suffices to allow recovery for emotional distress under the "legal theories" of assault, battery, slander, intentional infliction of mental suffering, and invasion of privacy, necessitates examination...