Grimsby v. Samson

Wright, J.

(dissenting) — I dissent. The tort of “outrage” has never been known in the law in this state. Plaintiff, appellant herein, was represented by extremely competent and experienced counsel. Appellant, however, could show little, if any, authority for the creation of a new tort to be known as the tort of “outrage.”

The Restatement (Second) of Torts § 46 (1965) is cited. It should be noted, however, that every one of the examples following section 46 related to active conduct of the alleged tort-feasor. The case now before the court relates, at most, to passive conduct.

Appellant further relies upon an Oregon case, Rockhill v. Pollard, 259 Ore. 54 , 485 P.2d 28 (1971) which quotes section 46 of Restatement (Second) of Torts, supra. The facts of that case are entirely different from the case now before the court. Therein a child was taken to defendant physician’s office after an automobile accident. The child was unconscious. Although the physician first declined to examine the child, he finally did undertake a perfunctory examination. During that time the child vomited. The child, in fact, had a skull fracture which defendant physician did not find. The defendant physician was alleged to have been extremely rude, and finally ordered plaintiff out of his office into subfreezing temperatures. Despite the substantial *62 differences between that case and the matter now before the court, the Oregon court said at page 64: “This is a close case.” The Oregon case, if not unique, is nearly so. It represents the outer limits to which the law has gone in such-matters. It does not, however, go nearly to the unprecedented extreme to which appellant would have us journey in this case.

The California cases cited by appellant, Dillon v. Legg, 68 Cal. 2d 728 , 69 Cal. Rptr. 72 , 441 P.2d 912 (1968) and Archibald v. Braverman, 275 Cal. App. 2d 253 , 79 Cal. Rptr. 723 (1969), both involved active negligence of the defendant. Those cases do not represent a majority rule, have been severely criticized, and are not authority in the instant case.

Schurk v. Christensen, 80 Wn.2d 652 , 497 P.2d 937 (1972), was a case in which there was active misconduct, by one defendant, against whom action was permitted. The other defendants were guilty of only passive misconduct, and a summary judgment of dismissal as to them was affirmed. That case is substantially different from the matter now before the court, but it does recognize the distinction between the active and the passive tort-feasor in relation to claims for emotional distress and mental anguish.

In a number of Washington cases there has been a refusal to award damages for emotional distress. Smith v. Rodene, 69 Wn.2d 482 , 418 P.2d 741 (1966); Murphy v. Tacoma, 60 Wn.2d 603 , 374 P.2d 976 (1962). Each of those cases, and cases cited therein, were situations wherein there was no intentional or malicious act and no direct injury to the person of the plaintiff. Smith v. Rodene, supra, is particularly in point as that is a case wherein recovery was denied to a husband for physical injury resulting from “anxiety and concern for his spouse’s condition.” In Smith , we said in part at page 488:

We have consistently held that, as a general rule, recovery may not be had for mental anguish or distress of mind in those cases not involving malice or wrongful intent unless there has been an actual invasion of the *63 plaintiff’s person or security or a direct possibility thereof. See Murphy v. Tacoma, 60 Wn.2d 603 , 374 P.2d 976 (1962), and cases cited therein.

Another and powerful reason exists for affirming the order of dismissal. This permits a double recovery. As conceded by appellant and by the majority, an action for wrongful death is pending.

RCW 4.20.020, after providing for an action for wrongful death for the benefit of, inter alia, a wife or husband, contains this language: “In every such action the jury may give such damages as, under all circumstances of the case, may to them seem just.” In Davis v. North Coast Transp. Co., 160 Wash. 576 , 295 Pac. 921 (1931), it was held at page 583 an instruction “submitting to the jury, as an element of damages for which recovery could be had, the loss of ‘the society, protection and companionship of her deceased husband.’ ” was a proper instruction.

Appellant cites Wilson v. Lund, 80 Wn.2d 91 , 491 P.2d 1287 (1971). It should be emphatically noted, Wilson was a wrongful death case wherein recovery was permitted for grief and mental anguish. While Wilson was in part based on the statute relative to the parent-child relationship, it was also in part based upon case law. If Wilson is applicable to the matter before the court in any way, it is to demonstrate that a double recovery herein is not a mere possibility. It is a probability, if not a certainty, if both actions may be maintained.

It matters not that one action, the one presently before the court, is by the husband in his own right, while the other, the wrongful death action, is by the husband as administrator for the benefit of himself. Any attempt to differentiate between the two actions may result in many words, and many fine-spun theories, but all of the words and all of the theories will vanish as chaff before a windstorm in the face of the stark reality: the same person is seeking recovery for the same damage in two different actions.

*64 For the reasons stated, I would affirm the judgment of dismissal.

Hale, C. J., and Hunter, J., concur with Wright, J.