Porter v. Crawford & Co.

Decision Date02 December 1980
Docket NumberNo. WD31205,WD31205
Citation611 S.W.2d 265
PartiesRoger PORTER, Plaintiff-Appellant, v. CRAWFORD & COMPANY, Defendant-Third Party Plaintiff-Respondent, and CARRIERS INSURANCE COMPANY, Defendant-Third Party Plaintiff-Respondent, v. NATIONAL BANK IN NORTH KANSAS CITY, Third Party Defendant-Respondent.
CourtMissouri Court of Appeals

Robert Ernest Gould, Gould & Moore, Kansas City, for plaintiff-appellant.

John L. Hayob, Niewald, Risjord & Waldeck, Kansas City, for Crawford & Co.

Phillip S. Smith, Jr., Merrick, Beamer, Wells & Slagg, Kansas City, for Carriers Ins. Co.

S. Preston Williams, and Thomas E. Barzee, Jr., North Kansas City, for National Bank.

Before WASSERSTROM, C. J., and DIXON and SOMERVILLE, JJ.

DIXON, Judge.

Plaintiff appeals from an order of the trial court sustaining motions to dismiss both counts of plaintiff's action with the collateral effect of the dismissal of the cross-claims against the third party defendant pleaded by defendants under the doctrine of Missouri Pacific Railroad Company v. Whitehead and Kales Co., 566 S.W.2d 466 (Mo.banc 1978).

The principal issue to be resolved is whether or not the law of Missouri will permit a recovery in tort for a lawful act performed maliciously and with the intent of causing harm to a plaintiff.

The scope of review of the motions to dismiss requires an examination of the pleadings allowing them their broadest intendment, treating all facts alleged as true, construing the allegations favorably to plaintiff, and determining whether, upon that basis, the petition invokes principles of substantive law. Shapiro v. Columbia Union National Bank and Trust Co., 576 S.W.2d 310 (Mo.banc 1978). A pleading will not be adjudged insufficient upon a motion to dismiss if the allegations of the petition accorded a reasonable and fair intendment state a claim which can call for the invocation of principles of substantive law which may entitle the plaintiff to relief. Kersey v. Harbin, 591 S.W.2d 745 (Mo.App.1979).

The conceded factual background which gave rise to the filing of plaintiff's petition Reduced to its essentials, Count I of plaintiff's petition pleads that Carriers "without having given any notice to plaintiff and for no cause or reason attributable to plaintiff, and without just cause or reason, stopped payment, ... said acts were done and committed by defendant in careless and reckless disregard of the rights of plaintiff and with intent to injury (sic ) plaintiff ... that the acts and omissions of defendant (Carriers) were wilful, wanton, and malicious." Count I of the petition then sets forth a claim of damage by reason of the late charges and embarrassment, humiliation, and reputation damage. The prayer of that count of the petition is for both actual and punitive damages.

against both defendants may be briefly stated. Plaintiff had sustained damage in an automobile collision involving a motorist insured by defendant Carriers Insurance. Crawford & Company, acting as the agent and adjuster for Carriers, settled the plaintiff's claim and delivered a draft in exchange for a full release of the plaintiff's claim against the other motorist. The plaintiff deposited the draft in the National Bank in North Kansas City, third party defendant here, and upon the basis of that deposit, wrote checks on plaintiff's account. Carriers had, unbeknownst to the plaintiff, stopped payment on the draft; and, as a consequence, the plaintiff's checks were returned to the payees as being drawn against insufficient funds, and the bank subsequently assessed service charges in connection with those insufficient funds checks.

Count II of the petition is directed against defendant Crawford and, by incorporation, restates the allegations against defendant Carriers. It then asserts that the defendant Crawford had knowledge of the intention of the defendant Carriers to stop payment on the draft and knowledge that a "failure to notify" would cause plaintiff harm and then alleges that possessed of said knowledge, Crawford, with the intent to cause actual injury and damage, wilfully and knowingly failed to notify plaintiff of the act of Carriers in stopping payment. The petition in this Count alleges plaintiff was caused to suffer great embarrassment, humiliation, and anxiety, and his reputation and standing in the community have been damaged.

Subsequent to the filing of answers by the two defendants, both defendants brought a cross-claim against the National Bank. The cross-claims assert that if the plaintiff sustained any injury or damage as a result of the negligence of the defendants Carriers and Crawford, that the negligence of the defendant National Bank contributed to cause said injury or damage. The cross-claim further asserts that the defendant National Bank should contribute on a proportionate basis to any judgment against defendants. The cross-claim is patently premised upon the doctrine of Whitehead and Kales, supra.

The defendant Carriers and the defendant Crawford filed separate motions to dismiss which were sustained, and the trial court dismissed the third party petition on the stated assumption that it was contingent upon the validity of plaintiff's petition.

The colloquy between counsel and the court demonstrates that the trial court dismissed the petitions on the specific ground stated in the motions. The specific ground set forth in the motion was that the petition was an action "sounding in negligence" premised on the defendant's failure to notify plaintiff of the act of stopping payment. The most casual glance at the petition reveals that it pleads intentional acts. The trial court action might be upheld if the pleading "sounded in negligence" because there is no affirmative duty on the part of defendants to notify the plaintiff of the stopping of payment existing under § 400.4-403 RSMo 1978, nor have the parties suggested any other basis for the creation of such a duty.

The petition, however, states that the defendant's actions were intentional for the sole purpose of harming plaintiff. It must, therefore, be determined if the catchall phrase of the motions, "(T)here exists no claim or cause of action against this Defendant Plaintiff, on this appeal, concedes no cause of action in negligence exists but asserts that the trial court erred in dismissing his petition because the allegations of the petition plead a wilful tort. The plaintiff characterizes the tort pleaded as a wilful intentional tort based on the "prima facie tort doctrine." Carriers and National Bank respond in separate briefs by asserting the "prima facie tort doctrine is not the law of Missouri." They further argue the plaintiff has failed to allege specific damages which they assert is required under the case law of the jurisdictions recognizing that theory of tort liability. The briefs contain no extensive analysis or citation to the voluminous writing on the theory nor the cases applying the concept. Plaintiff cites 74 Am.Jur.2d Torts § 38 and 16 A.L.R.3d 1191, and defendant Carriers cites one lower court case from New York on the damage issue. Defendant Crawford & Company's brief ignores the issue.

under the facts pleaded," requires affirmance of the trial court's order.

To facilitate the discussion, a statement of the elements of this theory of tort liability will be stated in summary form as gleaned from the sources to be later discussed. The elements so summarized are:

1. Intentional lawful act by the defendant.

2. An intent to cause injury to the plaintiff.

3. Injury to the plaintiff.

4. An absence of any justification or an insufficient justification for the defendant's act.

The defendants do not claim that the plaintiff's petition does not allege the elements of the prima facie tort doctrine aside from their assertion with respect to the lack of specific pleading of damages and it is, in effect, conceded by them that the petition pleads the essential elements of that doctrine.

The question is thus squarely presented as to whether or not Missouri will undertake to recognize a recovery upon the basis of an intentional tort under the principles of the case law in other jurisdictions developing what has been styled, "the prima facie tort doctrine."

Prima facie tort doctrine is a result of a controversy that has been waged for generations among the legal scholars with respect to the fundamental concept of tort liability. The dispute and citation to its protagonists are set forth in Forkosch, An Analysis of the "Prima Facie Tort" Cause of Action, 42 Cornell L.Q. 465 (Summer 1957). The article traces the analysis by the scholars.

In the early development of tort law, it was assumed that the only tort liability which could be recognized was tort liability arising within the framework of one of the specific trespass writs. Maitland, The Forms of Action at Common Law, pp. 4-5 (1941); Forkosch, supra, n.2, p. 465. Scholarly research has indicated that this was a misconception and that the early common law recognized the flexibility of trespass on the case to deal with other forms of tort action not specifically included in the traditional trespass writs. Maitland, supra at 66.

There is no need to detail the long and convoluted history of the dispute over the nature and function of the tort law. It is clear that modern scholarship considers that there exists a residue of tort liability which has not been explicated in specific forms of tort action and which is available for the courts to develop as common law tort actions as the needs of society require such development. Brown, The Rise and Threatened Demise of the Prima Facie Tort Principle, 54 Northwestern L.R. 563, 573 (1959-1960). The emerging products liability recovery theories and the relatively recent development of theories in the recovery of damages for intentional infliction of emotional...

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