Public Finance Corp. v. Davis

• Citation: 4 Ill.Dec. 652,66 Ill.2d 85,360 N.E.2d 765
• Decision Date: 15 November 1976
• Docket Number: No. 48414,48414
• Parties: , 4 Ill.Dec. 652, 87 A.L.R.3d 187 PUBLIC FINANCE CORPORATION, Appellee, v. Luella DAVIS, Appellant.
• Court: Supreme Court of Illinois

Page 765

360 N.E.2d 765

66 Ill.2d 85, 4 Ill.Dec. 652, 87

A.L.R.3d 187

PUBLIC FINANCE CORPORATION, Appellee, v. Luella DAVIS, Appellant.

No. 48414.

Supreme Court of Illinois.

Nov. 15, 1976.

Rehearing Denied Jan. 28, 1977.

Lois J. Wood, of Land of Lincoln Legal Assistance Foundation, East St. Louis, for appellant.

John F. O'Connell, of O'Connell & Waller, Belleville, for appellee.

RYAN, Justice.

In this case Luella Davis (Davis), the defendant and counterclaimant, seeks to recover from Public Finance Corporation (Public Finance), plaintiff and counterdefendant, under the allegations in her amended counterclaim for mental anguish and emotional distress allegedly caused by the agents of Public Finance in attempting to collect money which Davis owed. The circuit court of St. Clair County held that the amended counterclaim failed to state a cause of action. The appellate court affirmed. (36 Ill.App.3d 99, 343 N.E.2d 226.) We granted leave to appeal.

From the pleadings it appears that Davis was indebted to Public Finance on a promissory note executed by her and secured by a security interest in her household goods. She made regular payments on the obligation until August 1, 1974. On February 24, 1975, Davis then being in default, Public Finance filed a complaint seeking judgment against her for the balance due on the note. Davis counterclaimed and, following the allowance of a motion to dismiss the counterclaim, filed an amended counterclaim which is in two counts, both counts seeking recovery on the theory of intentional infliction of severe emotional distress. The sole question to be decided is whether the amended counterclaim stated a cause of action. We find that it did not.

In Knierim v. Izzo (1961), 22 Ill.2d 73, 174 N.E.2d 157, this court recognized the intentional causing of severe emotional distress as a separate and additional tort which one author has been prompted to call a 'new tort.' (Prosser, Intentional Infliction of Mental Suffering: A New Tort, 37 Mich.L.Rev. 874 (1939).) Although this tort was not recognized in the 1934 Restatement of Torts, the 1948 supplement contained an amended section 46 recognizing the existence of a cause of action based on this theory. (Restatement of Torts sec. 46 (Supp.1948).) The reason for the change as partially stated in the supplement is: 'The change in Section 46 is necessary in order to give an accurate Restatement of the present American law. There is a definite trend today in the United States to give an increasing amount of protection to the interest in freedom from emotional distress.' Although the 1948 supplement contained the caveat that '(t)he (American Law) Institute expresses no opinion as to whether one who recklessly causes severe emotional distress to another is or is not liable for it,' the Institute, in Restatement (Second) of Torts, section 46 (1965), recognizes the existence of a cause of action for severe emotional distress caused by intentional or reckless conduct. Knierim, which predated the second Restatement, by innuendo adopted the viewpoint of the 1948 supplement recognizing only a cause of action based on Intentional conduct. (See Note, Torts-Intentional Infliction of Mental Suffering: A New Tort in Illinois, 11 De Paul L.Rev. 151 (1961).) Although recklessness has been rejected in one jurisdiction as a basis for recovery for severe emotional distress (see Alsteen v. Gehl (1963), 21 Wis.2d 349, 124 N.W.2d 312), we do not find the reason for that decision applicable in Illinois. We therefore will test the two counts of the amended counterclaim by the requirements of the cause of action as stated in section 46 of the second Restatement, the decisions of other jurisdictions recognizing the cause of action and by the authors on the subject. See Magruder, Mental and Emotional Disturbance in the Law of Torts 49 Harv.L.Rev. 1033, 1059 (1936); Prosser, Law of Torts, sec. 12 (4th ed. 1971).

The extensive comments and illustrations to section 46 are helpful in delineating the conduct which gives rise to this cause of action. First, the conduct must be extreme and outrageous. The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions or trivialities. 'It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by 'malice,' or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency * * *.' Restatement (Second) of Torts sec. 46, comment D (1965).

Second, infliction of emotional distress alone is not sufficient to give rise to a cause of action. The emotional distress must be Severe. Although fright, horror, grief, shame, humiliation, worry, etc. may fall within the ambit of the term 'emotional distress,' these mental conditions alone are not actionable. 'The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it. The intensity and the duration of the distress are factors to be considered in determining its severity.' Comment J. See, also Prosser, Law of Torts sec. 12, at 54 (4th ed. 1971).

Third, reckless conduct which will support a cause of action under the rules stated is conduct from which the actor knows severe emotional distress is certain or substantially certain to result. (Comment I.) Liability extends to situations in which there is a high degree of probability that severe emotional distress will follow and the actor goes ahead in conscious disregard of it. Prosser, Law of Torts 60 (4th ed. 1971).

Fourth, as is stated in comment E, the extreme and outrageous character of the conduct may arise from an abuse of a position or a relation with another which gives the actor actual or apparent authority over the other or power to affect his interests. This interpretation of the rule is applicable to collecting creditors and would apply to a creditor in its attempt to collect a lawful obligation.

Count I of the amended counterclaim alleges the conduct of Public Finance which Davis claims entitles her to recover. Stripped of the conclusions, it is charged that on or about September 1, 1974, Davis informed Public Finance she was no longer employed, was on public aid and did not have enough money to make regular payments on her obligations; that in order to collect the account Public Finance from September 1, 1974, to April 4, 1975, called Davis several times weekly, frequently more than once a day; that in order to collect the account agents of Public Finance went to Davis' home one or more times a week; that on October 15, 1974, when Davis' daughter was in the hospital, an agent of Public Finance, in order to collect the account, called the defendant at the hospital; that on that day Davis informed the agent of the severity of her daughter's condition, that she, herself, was sick and nervous and asked that Public Finance refrain from calling her at the hospital; that on the same day an agent of Public Finance again called Davis at the hospital; that after an employee of Public Finance induced Davis to write a check and promised that the check would not be processed, Public Finance phoned an acquaintance of Davis and informed her that Davis was writing bad checks; that in November 1974 an employee of Public Finance called at Davis' home and after being told that Davis had no money with which to make a payment, with Davis' permission, used her phone to call Public Finance and to describe and report the items of Davis' household goods; that on that day the employee 'failed or refused' to leave Davis' home until her son entered the room.

Count II realleges the conduct of Public Finance alleged in count I and further alleges that Davis suffered from hypertension and a nervous condition; that she was particularly susceptible to emotional distress; that she had frequently informed agents of Public Finance of her condition and that Public Finance had notice that Davis was particularly susceptible to emotional distress.

The conduct alleged is not of such an extreme and outrageous nature as to constitute a basis for recovery under the theory alleged. Davis was legally obligated to Public Finance and was in default in making the payments. As stated in Restatement (Second) of Torts, section 46, comment G, in such a case the actor is not liable 'where he has done no more than to insist upon his legal rights in a permissible way, even though he is well aware that such insistance is certain to cause emotional distress.' A creditor must be given some latitude to pursue reasonable methods of collecting debts even though such methods may result in some inconvenience, embarrassment or annoyance to the debtor. The debtor is protected only from oppressive or outrageous conduct. Dawson v. Associates Financial Services Co. of Kansas, Inc. (1974), 215 Kan. 814, 529 P.2d 104; Norris v. Moskin Stores, Inc. (1961), 272 Ala. 174, 132 So.2d 321.

In cases wherein courts have permitted the action to be brought or have sustained recovery for severe emotional distress, the collecting tactics of the creditor have involved the use of abusive and vituperative language, shouting and railing at the debtor, repeated threats of arrest and ruination of credit, threats to appeal to the debtor's employer to endanger his employment and accusations of dishonesty. '(L)iability usually has rested on a prolonged course of hounding by a variety of extreme methods.' Prosser, Law of Torts 57 (4th ed. 1971). See Barnett v. Collection Service Co. (1932), 214 Iowa 1303, 242 N.W. 25; LaSalle Extension University v. Fogarty (1934), 126 Neb. 457, 253 N.W. 424; Warrem v. Parrish (Mo.1969), 436 S.W.2d 670; Rugg v. McCarty (1970), 173...