Home DOLORES ANN BOYLE vs. JOHN H. WENK. [Note 1]

378 Mass. 592

April 5, 1979 - August 1, 1979

Suffolk County

Present: HENNESSEY, C.J., QUIRICO, KAPLAN, LIACOS, & ABRAMS. JJ.

In an action to recover damages for the intentional or reckless infliction of emotional distress, evidence that the defendant repeatedly harassed the plaintiff after she told him not to call and informed him that she had recently been discharged from a hospital and that, as a result of the defendant's conduct, the plaintiff suffered emotional and physical damage was sufficient to warrant the denial of the defendant's motions for a directed verdict and for judgment notwithstanding the verdict. [595-598]

TORT. Writ in the Superior Court dated August 12, 1971.

The action was tried before Dimond, J.

After review was sought in the Appeals Court, the Supreme Judicial Court, on its own initiative, ordered direct appellate review.

John L. Mason, Jr., for the defendant.

Joseph M. Orlando for the plaintiff.


ABRAMS, J. The sole issue raised by this appeal is the sufficiency of the evidence in an action for the intentional or reckless infliction of emotional distress. The defendant, John H. Wenk, asserts that it was error for the judge to deny his motion for a directed verdict, and after the

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verdict to deny his motion for a judgment notwithstanding the verdict. See Mass. R. Civ. P. 50, 365 Mass. 814 (1974). Wenk claims that his conduct, while rude and clumsy, was neither "extreme and outrageous" nor was it "beyond all possible bounds of decency." Hence he concludes it was error to submit Dolores Boyle's claim for the intentional infliction of emotional distress to a jury. We find no error; therefore, we affirm the judgment.

In reviewing the denial of Wenk's motion for a directed verdict, [Note 2] we view the evidence most favorable to Boyle. See Uloth v. City Tank Corp., 376 Mass. 874 , 876 (1978). Moreover, we must determine "whether `anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff.'" Poirier v. Plymouth, 374 Mass. 206 , 212 (1978), quoting from Raunela v. Hertz Corp., 361 Mass. 341 , 343 (1972).

Wenk was employed by Consulting Investigators, Inc., to do private investigative work. [Note 3] Wenk was asked to investigate the health and capacity for work of one John Walsh.

Walsh is the plaintiff's brother-in-law; he and his wife live in an apartment upstairs from the Boyles' home. In the course of his investigation Wenk called the Boyle home and began asking personal questions about Walsh. The plaintiff suggested to Wenk that he call Walsh directly; she also asked Wenk not to call again as she had just been discharged from the hospital. [Note 4]

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In spite of the plaintiff's request, the next week Wenk called the plaintiff's home at 1 A.M. The plaintiff was alone with her children, [Note 5] and she was disquieted by the late hour of the call. She told Wenk not to call again and hung up. After the call the plaintiff was fearful, upset, and unable to sleep. The next week Wenk appeared at the Walsh apartment; Mrs. Walsh invited Boyle upstairs. When asked, Wenk admitted that he had been calling Boyle. The plaintiff told Wenk that he "had [her] terrified."

Then Wenk asked Walsh what he did for a living, and Walsh answered that he "robbed banks." In Boyle's presence, Wenk retorted that he had been "in prison too for rape." The police were summoned.

When two police detectives arrived, the police observed that Boyle was crying and agitated. The detectives asked Wenk to identify himself, and Wenk responded, "I'm a police officer." When challenged, Wenk admitted he was engaged in private investigative work.

Boyle, Wenk, the Walshes, and the detectives went to the police station. Boyle was weeping. At the police station she became weak and sick due to hemorrhaging. Blood was observed on Boyle's chair after she left the station to seek medical assistance.

Boyle was under a physician's care for an extended period of time after these events. Boyle also sought the assistance of a psychiatrist. There was ample medical evidence as to Boyle's injuries, as well as evidence of a causal relationship between Boyle's emotional condition and the phone calls from Wenk. [Note 6]

Wenk asserts that as a matter of law these facts do not evidence the "extreme and outrageous" conduct necessary to support a claim for intentional or reckless infliction of emotional distress. See George v. Jordan Marsh Co., 359 Mass. 244 , 255 (1971). [Note 7] He emphasizes that recovery

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is barred unless his conduct was "beyond all possible bounds of decency," and "utterly intolerable in a civilized community." George, supra at 254-255. Agis v. Howard Johnson Co., 371 Mass. 140 , 145 (1976). Restatement (Second) of Torts Section 46, Comment d (1965). Further, Wenk claims, hurt feelings resulting from bad manners, or relatively minor annoyances do not justify recovery for intentional or reckless infliction of emotional distress. See George, supra at 253-254. See Restatement (Second) of Torts Section 46, Comment d (1965). See generally Magruder, Mental and Emotional Disturbance in the Law of Torts, 49 Harv. L. Rev. 1033, 1053-1064 (1936). We do not quarrel with Wenk's statement of the applicable principles.

However, in our view, Wenk did engage in a pattern of conduct which a jury could find was extreme and outrageous, exceeding mere insult or minor annoyance. Wenk's conduct may reasonably be viewed as an attempt to intentionally shock and harm a person's "peace of mind" by invading the person's mental or emotional tranquility.

The flaw in Wenk's argument is that he isolates each individual incident and ignores the fact that the jury are entitled to draw reasonable inferences from the totality of circumstances. See Poirier v. Plymouth, 374 Mass. 206 , 212 (1978). Repeated harassment, such as that engaged in by Wenk, may compound the outrageousness of incidents which, taken individually, might not be sufficiently extreme to warrant liability for infliction of emotional distress. See George, supra at 246; Duty v. General Fin. Co., 154 Tex. 16, 18 (1954); Samms v. Eccles, 11 Utah 2d 289, 290 (1961); Prosser, Insult and Outrage, 44 Calif. L. Rev. 40, 48-49 (1956). Contrast Public Fin. Corp. v. Davis, 66 III. 2d 85, 92-93 (1976).

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Significantly, Wenk's conduct continued even after Dolores Boyle, in the first call, had told him not to call again. [Note 8] See George, supra at 245-246; Dawson v. Associates Fin. Servs. Co. of Kansas, Inc., 215 Kan. 814, 817, 825 (1974). The issue whether Wenk's conduct was extreme and outrageous is raised by his continued harassment of Boyle after he knew that she had just returned from the hospital. Conduct otherwise reasonable may become tortious when directed at an individual known to be particularly susceptible to infliction of emotional distress. Restatement (Second) of Torts Section 46, Comment f, Illustrations 9-11 (1965).

Though there is no evidence that Wenk knew the precise nature of Mrs. Boyle's physical susceptibility, his knowledge that she had just returned from the hospital put him on notice that she might be more vulnerable to harassment or verbal abuse. See Dawson v. Associates Fin. Servs. Co. of Kansas, Inc., 215 Kan. 814, 825 (1974) (victim with multiple sclerosis); Delta Fin. Co. v. Ganakas, 93 Ga. App. 297, 298-299, 300 (1956) (victim was child aged eleven years). Prosser, 44 Calif. L. Rev. 50. Martin, A Creditor's Liability for Unreasonable Collection Efforts: The Evolution of a Tort in Texas, 9 S. Tex. L.J. 127, 138-140 (1967). Yet Wenk persisted in intentional conduct which caused Boyle to suffer serious physical and emotional damage. It is for the jury in such instances to decide whether Wenk's conduct was "rude and clumsy" or "extreme and outrageous."

We are mindful of the need for limits on recovery for intentional or reckless infliction of emotional distress: "No pressing social need requires that every abusive outburst be converted into a tort; upon the contrary, it would be unfortunate if the law closed all the safety valves

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through which irascible tempers might legally blow off steam." [Note 9] Magruder, supra at 1053. Moreover, the courts must be particularly wary in this area to avoid fictitious claims. Agis, supra at 143. [Note 10] Hochman, "Outrageousness" and Privilege in the Law of Emotional Distress -- A Suggestion, 47 Cornell L.Q. 61, 63 (1961).

However, where a person engages in intentional conduct which is designed to, and actually does, result in severe emotional and physical damage, the possibility of trivial or fictitious claims does not justify denial of recovery to the victim. Agis, supra at 143-145. State Rubbish Collectors Ass'n v. Siliznoff, 38 Cal. 2d 330, 338-339 (1952). Samms v. Eccles, 11 Utah 2d 289, 291 (1961). W. Prosser, Torts 50-51 (4th ed. 1971). There is an issue for the jury if reasonable people could differ on whether the conduct is "extreme and outrageous." Agis, supra at 145-146.

Finally, Wenk argues that the judge mistakenly believed that "it was the sole prerogative of the jury" to determine liability in a case alleging infliction of emotional distress. This contention is not supported by the record.

The judge did express doubts concerning the sufficiency of the evidence and indicated that he might grant a motion for judgment notwithstanding the verdict if the jury found for Dolores Boyle. The judge's comments indicate that he carefully scrutinized the evidence before ruling on Wenk's motions. Ultimately the judge concluded

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that the evidence was sufficient to permit the jury to consider whether Wenk's conduct was in fact extreme and outrageous. See Restatement (Second) of Torts Section 46, Comment h (1965); Womack v. Eldridge, 215 Va. 338, 342 (1974). [Note 11] We find no error in the judge's conclusion.

Judgment affirmed.


FOOTNOTES

[Note 1] The complaint named Dolores Boyle and her husband William as plaintiffs, and Wenk and his employer Martin B. Krebs and Consulting Investigators, Inc., as defendants. William Boyle dismissed his claims against all defendants. Dolores Boyle dismissed her claim against Krebs. The jury returned verdicts for Boyle against both Wenk and Consulting Investigators, Inc., in the amount of $7,500. Consulting Investigators, Inc., did not appeal.

[Note 2] We transferred Wenk's appeal to this court from the Appeals Court on our own motion.

[Note 3] Liberty Mutual Insurance Company hired Consulting Investigators, Inc., who in turn hired Wenk, to investigate John Walsh's health and capacity for employment. Boyle listed Liberty Mutual as a defendant in her amended complaint, but subsequently voluntarily dismissed that claim.

[Note 4] Boyle had been discharged from the hospital two days earlier after giving birth to her second child.

[Note 5] Boyle's husband was working a night shift.

[Note 6] Wenk is not challenging the sufficiency of the medical evidence.

[Note 7] Due to Boyle's physical injuries, this case is analogous to George v. Jordan Marsh Co., 359 Mass. 244 , 255 91971). Cf. Agis v. Howard Johnson Co., 371 Mass. 140 , 146-147 (1976). Boyle did not allege a cause of action for negligent infliction of emotional distress. See Dziokonski v. Babineau, 375 Mass. 555 , 558-562 (1978).

[Note 8] We note that the Legislature has labeled unreasonable attempts to collect personal or family debts by communication at an unreasonable hour, or with unreasonable frequency, or by use of offensive language. G. L. c. 93, Section 49.

[Note 9] Wenk's conduct seems to have been more than a spontaneous outburst. His conduct appears to have been a calculated tactic designed to pressure reluctant persons to reveal information useful to his investigation. See Wade, Tort Liability for Abusive and Insulting Language, 4 Vand. L. Rev. 63, 72 (1950).

[Note 10] In Agis, we allowed recovery for intentional or reckless infliction of emotional distress, absent resulting physical injury. Where, as with Dolores Boyle, the complained of conduct results in severe physical injury, there may be less likelihood of a fictitious claim. See W. Prosser, Torts at 60 (4th ed. 1971). Prosser, Insult and Outrage, 44 Calif. L. Rev. 40, 53 (1956).

[Note 11] Wenk argues that in a case alleging infliction of emotional distress, a two-step process is required -- first the judge must determine whether the conduct may reasonably be viewed as extreme and outrageous, and second, that the jury must determine whether the conduct was in fact extreme and outrageous. This is precisely the test outlined in Restatement (Second) of Torts Section 46, Comment h (1965). See Golden v. Dungan, 20 Cal. App. 3d 295, 308 (1971). There is no indication in the record that the judge misunderstood or misapplied this test, which is the same test applied whenever a party to a civil proceeding makes a motion for directed verdict or judgment notwithstanding the verdict.