Hess v. Treece

John I. Purtle, Justice, dissenting. In my opinion the only outrage to be found in this case is the majority opinion. The present case seems to attempt to embrace the torts of bad faith, interference with a contract, intentional infliction of emotional distress (outrage), negligence, slander, and perhaps libel.

The tort of bad faith had its genesis in automobile liability cases where insurers acted in bad faith in not settling personal injury claims. Although the “bad faith” doctrine may have started in California, we recognized it in Tri-State Insurance Co. v. Busby, 251 Ark. 568 , 473 S.W.2d 893 (1971). In Busby we held that an insurance company was liable in excess of its policy limits if it had failed, due to “fraud, bad faith, or negligence,” to settle within the policy limits. To the same effect see Members Mutual Insurance Co. v. Blissett, 254 Ark. 211 , 492 S.W.2d 429 (1973). The tort of bad faith in refusing to settle with an insured pursuant to the terms of a fire insurance policy was approved in the case of Aetna Casualty & Surety v. Broadway Arms, 281 Ark. 128 , 664 S.W.2d 463 (1983).

So far as I can determine, the tort of intentional infliction of emotional distress was first recognized in Arkansas in the case of M.B.M. Co. v. Counce, 268 Ark. 269 , 596 S.W.2d 681 (1980). In M.B.M. we stated: “[W]e. . . do now recognize that one who by extreme and outrageous conduct wilfully or wantonly causes severe emotional distress to another is subject to liability for such emotional distress and for bodily harm resulting from the distress. ... By extreme and outrageous conduct, we mean conduct that is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.” There was no award of damages in M.B.M. because the case came to us on appeal from a summary judgment dismissing the cause of action. We reversed and remanded. We did approve an award of actual and punitive damages for the tort of outrage in Growth Properties I v. Cannon, 282 Ark. 472 , 669 S.W.2d 447 (1984). The outrageous act in Cannon was the defendants’ use of part of a burial plot as a road during construction, thereby exposing and driving upon the vaults of plaintiffs’ deceased relatives. Repeated traffic across the burial plot was indeed something beyond the bounds of decency. However, in the earlier case of Givens v. Hixson, 275 Ark. 370 , 631 S.W.2d 263 (1982) we upheld a summary judgment against the plaintiff who had alleged in his complaint that he had been the victim of an intentional infliction of emotional distress by having his employment terminated publicly, abruptly, and without good reason. In Givens we again stated the tort of outrage could be established where the conduct was so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.

If we take every allegation of the complaint as fully proven at the trial, there still are no grounds to support an award for the tort of bad faith or of outrage. Nothing alleged or proved comes anywhere close to conduct which could be described as outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society. The only actions taken by the appellant were in following appellee, having him followed or watched, and reporting that the appellee was working for a private corporation during the time he was supposed to be on duty for the police department. There was also testimony that appellant tried to have appellee discharged from the police department. The only disciplinary action taken against the appellee was the result of appellee’s failure to tell the truth about one of the matters which was investigated as a result of appellant’s complaint. There was no proof that any of appellant’s complaints about appellee was untrue.

It is not outrageous as far as I am concerned for one person to try to keep up with what another person is doing. If a policeman or other investigator had done the same things appellant did, no one would have had a second thought about it. Apparently a jealous spouse or sweetheart cannot check up on the other without it becoming an outrage. Lawyers may be handicapped in investigating certain claims as a result of the majority opinion. Appellant may well be guilty of interfering with a contract of employment or slander but he is not guilty of outrage as we have previously defined the tort. Appellant may be guilty of invading the privacy of the appellee or several other recognized torts but his actions were not, in my opinion, utterly intolerable in a civilized society. The mischief done by the majority opinion far outweighs the good it will do.

Citizens may now be afraid to complain of conduct on the part of public officials or employees. Apparently they will now be obliged to keep their mouths shut about what they perceive as misconduct on the part of public employees or officials or face being sued for outrageous conduct.

We considered the tort of outrage in Tandy Corp. v. Bone, 283 Ark. 399 , 678 S.W.2d 312 (1984) where this same instruction (AMI 2217) was given. We reversed because the instruction should not have been given. I believe the objection by appellant’s counsel was proper and specific. Apparently he failed to utter magic words of some sort. If giving the instruction was reversible error in Tandy it should be reversible error here.

Reports of the police department investigations should not have been allowed. The introduction of these reports flies in the face of Unif. R. Evid. 803 (8) (i), (iv),and (v). I am not suggesting that these investigative reports were fabrications but they did result from special investigations by the police department and clearly came within the prohibitions of Unif. R. Evid. 803.

It is interesting to note in the report of Captain Daley that he characterized appellant as reflecting “a personality disorder of paranoid schizophrenia. This man demonstrated marked perse-cutory trends. . . .” Later he testified that he had only spoken with appellant once. Captain Daley also stated: “In all fairness to Mr. Hess and the parties involved, you could understand how he could be upset and distraught over a situation if he felt he was making complaints and the complaints were not being addressed.” This witness for the appellee did not view appellant’s conduct as outrageous although he classified appellant as being paranoid and as having hallucinations. There is no basis for Captain Daley making these diagnoses. Even if this report was not prohibited by the rules its unfair prejudice far outweighed any probative value it might have had. Not a single witness nor collection of witnesses described conduct which is repugnant to a civilized society.

Appellee’s testimony was that the frequent investigations caused him concern about his job. He stated appellant followed him in April, 1981, and that about a year later appellant informed appellee’s supervisor that appellee was at an apartment when he was supposed to be at work. In April, 1982, appellant reported appellee was working at a private job during his normal duty hours. The ensuing investigation at least proved appellant’s complaint was not unfounded. About the only other act complained of was that appellant paid others to report on appellee’s conduct. Appellee’s expressed fears for the safety of his family seem completely unfounded. There were never even any allegations of violence or threats to the appellee’s family. There is nothing to prove that appellant even caused all the investigations to be initiated.

Even though there clearly was no proof of the tort of outrage I would send the case back for a new trial. There were allegations in the complaint which would support an award of damages on other grounds.