*1 20, 1981 Mаy 4, Argued submitted reversed October and MOONEY, Petitioner, CO., al, CATTLE INC. et JOHNSON Respondents.
(TC 27577) 15467-L, CA SC Taggart, II, Ontario, S. & Taggart Taggart, argued Max the cause filed a for petitioner. brief Pratt, Nyssa,
J. argued respondents. Burdette the cause for Stunz, Pratt, Nyssa, With him on the briefs were Fonda & Miller, Weston, Caldwell, Gigray, Downen & Idaho. Tongue, Peterson, Lent, Linde, Denecke, C.J., and
Before Tanzer, Justices. LINDE, J. opinion. concurring specially
Tongue, J., filed a *2 dissenting opinion. Peterson, J., filed a LINDE, J. buyers.
Plaintiff defendants are cattle When buy head contracted to of steers from a third person resale, for immediate caused the defendants seller breach this the same at a buying higher contract cattle price, a time unable to deliver cattle his leaving plaintiff for buyer. brought pur- Plaintiff action for interference with his contract, chase seeking damages reputation loss anguish proximatе mental as “a suffered direct and result” interference, punitive damages. jury well A plaintiff $6,500 awarded anguish only. Appeals reversed,
The Court of inter- holding ference with contractual relations is not one of the torts in suffering may be awarded in the of physical injury. App (1980). absence We allowed review to right consider the in a tort action for inducing breach of contract.
Upon examination, question proves far from settled. There are more secondary assertions commen- tary than actual general decisions from which a rule may be *3 In England, drawn. it is said “primary protection that the by by Lumley afforded the tort Gye,1 ushered in v. is against business losses: “business men complain cannot of injured feelings Mayne alone.” & on McGregor Damages 943 § (12th 1961). ed Another text of the vintage, same to the contrary, states that a “will often greater receive damages in tort” than for the of contract; breach “he can exemplary obtain damages, invoke the rule that intentionally caused damages recoverable for an tort, damages obtain reputation for loss of and injured Street, feelings.” of Principles of the Law (1962). Damages 252 authority Neither work cites for proposition.2 either to law, As American Sedgwick stated (1853) (action Eng Rep maliciously interfering employment 1 118 749 for relationship). relations not to master-servant confined KB 2 244, 281-282, Mayne & McGregor, which held supra, quote physicians Pratt v. British Medical who were victims of a boycott, Ass’n, [1919] 1 “ pecuniary damages by not limited to . . ‘are actual suffered them. The jury, proved, appro- Court once actual financial awаrd sum loss a
priate wrong to the whole circumstances the of tortious inflicted. . . I 712 maliciously
a “for single procuring sentence that the breach is as ordinarily contract the measure of same 2 it would be in an action for breach of the contract itself.” (2nd 1912).3 Sedgwick on at 900 ed A more Damages 470a reported in 1930 detailed student note some courts * deemed the contract rule to be the measure of tort proper breach,4 a inducing while others stated that resulting damages, by analogy tort was all defendant liable for tangible to for intentional interference with prop erty, a rule group applied “proximate” injuries third a Note, Damages to that comparable negligence cases. Contract, Inducing Recoverable in an Action Breach 30 (1930). Many early Cоl L Rev 232 cases involved plaintiffs employment, setting and in that interference “injured allowed feel Massachusetts decisions Kraemer, v. 440, ings,” Gould 433, 253 Mass 149 142 NE Salinger, v. (1917), Doucette (1925), 444, 117 228 897 Mass NE Craig, DeMinico v. 593, 94 317 reputation, 207 Mass NE ignore vigour and relentless with which the defendants cannot deliberate complete merely regard sought ruin. I to achieve the infliction of must not they pecuniary by plaintiffs long period sustained but the for which loss ” respectively humiliation and menace.’ suffered employee discharged inconvenience caused to him which Lord Devlin said that also Rookes change tort of livelihood.” pleaded v. Barnard, in that as Id. [1964] case result 407. was 1All measure not, however, E.R. union strike threats change damages might a job tort interference with a contract. and the action against unhapрiness take into account “the “intimidation” his employer, maybe by See 3 Co., case, Dairy Sedgwick single 107 Knickerbocker Ice Co. v. Gardiner cited a (1908). (manufacturer inducing to A liable for dealer Md 69 Id. at n. 252 sale; exemplary damages as unless break with customer so to obtain direct no contract plaintiff). purpose injure was to 57, 157 (1916) Swaney Crawley, NW 910 Minn The Minnesota decision limited, commonly injured party proposition precedent is one cited for the that “the general rule, damages might as have been recovered for breach itself,” enough” although that “the rule is broad the court went on state contract reputation exemplary damages. compensation as well for an include phrase quoted passage general “as a rule” in the Minn The inclusion of the cоncerning in this tort recoverable characteristic of most statements *4 action. recovering damages damages significance measure of The of tort or contract parties contracting dispute a business context distress in a between for mental Co., 453, 456, 458-465, 587 S. P2d 1015 in Farris v. U. Fid. Guar. discussed duty (1978) (failure liability insured not insurer assume to defend the does of a to distress). support damages award of for emotional (1911). reported only a other on either The note few decisions 237, side of that issue. 30 Col L Rev at n. 27. recently, briefly repeated
More Dean Prosser classification, same adding few more recent citations but anxiety none on the issue of for mental or distress. preference damages Prosser’s own was for the of measure persons common other intentional torts or proрerty. 129, (4th 1971). Prosser, Law of Torts ed 948-949 His § position adopted by appellate was a California court in Duff Engelberg, (1965), Cal App Rptr Cal 2d prejudice defendants motivated racial had caused a seller to on contract to sell a renege plaintiffs. residence to of Professor Dobbs’s treatment the law of states that suffering, reputation, punitive loss of damages, though normally not available for breach of con- tract, pretty accepted “are well against as recoverable breach”; however, tortious inducer of the statement is not supported by any Dobbs, 6.4, citations. Remedies at 463 (1973). A of number other commentators have reviewed the three different measures of drawn from actions for breach contract, torts, and negligence without adding much information subject on the of mental or emo- tional distress. See in the Developments Law-Competitive Torts, Note, 77 Harv L Rev (1964); 967-969 Interference England, Contractual Relations New B L 38 U Rev 285 (1958); Comment, Interference, With Contractual A Relations: Common Damages, Measure 7 Santa Clara Law Rev 140 (1966). original Torts,
The Restatement in section stated one purposely who person causes third not perform a contract with another “is liable to the other for the thereby.” quoted harm caused phrase The appeared to meas- ure range liability entirely fact, causation in but the comments to section 766 nothing said further on the issue damages. (Second) Restatement Torts added a new section 774A which states that in an recoverable action interference with contractual include relation pecuniary contract, loss of the benefits consequential losses, other and “emotional reputation, they or actual harm to if reasonably *5 714 the to the interference.”5 The record of
expected result from Institute, Law by of this statement the American adoption is however, no conviction that it a “restatement” great reflects sum, In the state of the authorities of an established rule.6 anew. encourages question us to examine the starting point for a take its principle Search denying damages in the or allowing either decisions the actions, in tort or in a narrower focus on distress other first Taking tort. the characteristics of the interference 310, Oil, tack, Douglas v. Humble 251 Or defendants brief a to (1968), trespass 445 in which the torts were P2d 590 v. personal property, a Fredeen home and conversion a Stride, 369, (1974), 269 which involvеd Or dog, v. Talent veterinarian’s conversion of a and Edwards 5 Damages 774A. “§ “(1) a or One who is liable to another for interference with contract
prospective damages relation is liable for contractual “(a) prospective pecuniary the the the loss of benefits the contract or relation; cause;
“(b) consequential legal is the interference a losses which “(c) they reputation, to if are reason- distress or actual harm emotional ably to be to result from the interference. by “(2) inducing causing with a or In an action for interference contract other, person with the the fact that the third third to break the contract person damages the is liable for the breach does not affect amount actor; paid by person against damages in thе third but fact awardable actually judgment.” damages on the will reduce the recoverable 6 Prosser, original Reporter, § new Dean submitted the 774A 1969 (1).” actually very Torts is case on subsection Restatement of note: “There little law (Second), (1969) again the draft came before Tentative Draft No. 14 at 86. When Wade, Reporter, regard subsequent W. Dean John said Institute relations: from interference with contractual for emotional distress that, surprised. Yet I “I when I saw I felt when looked admit that first rather cases, they mostly I were a number of were older must admit —there cases— you, open indicating it be true. I left but it before cases that this could alone... you aspect, if that I am amenable.” want to eliminate 774(A)(c) as distress from was a motion to eliminate for emotional There “weight being trumped up.” rеsponse question easily In to the as “too cases,” Reporter replied to tell.” Justice that it was “sort of hard authorities against damages for he “as much emotional of Massachusetts said that was Braucher “why much no this one in this other cases” but saw reason case 774A§ emotional distress from failed The motion to strike different.” (1977) Institute, Proceedings, Meeting 54th Annual vote American Law of 64-44. The at 429-431.
715 District, (1977), Irrigation Or 1169 a case P2d they argue From negligent flooding general of land. these only propositions are allowed for mental distress predictable when this distress is a direct and result accom quality panying tangible injury, aggravated conduct, physical and that without a wrongful person specifically a few torts property such as designed recognize injuries, emotional invasion Co., privaсy, see Hinish v. & Frank 482, 113 P2d Meier 166 Or (1941) infliction of emotional Bureau, Billing Turman Central 568 P2d *6 (1977). The thought Court of itself bound to Appeals reverse of mental what in award distress was said Allen, these cases and in Melton v. 731, 282 Or 580 1019 P2d (1978), trespass denied such for a to plaintiffs automobile.7 may
These and other cases left question have some significance about the various to liability factors for mental distress, liability for instance whether this results from defen- intent, distinguished negli- dant’s from recklessness gence, compare Melton, supra, McEvoy Helikson, v. 277 781, (1977), Or from the “direct and causation, say that is to predictability, natural” Stride, Douglas see Fredeen v. supra, and mental Oil, v. Humble supra, and “aggravated whether circum- stances” to liability relevant distress quoted passage stating The court in Melton redress for mental disturbance accompanying рhysical injury involving without has been in cases allowed circumstances,” flagrant acts of a “intentional character under most facts unusual and plaintiffs right “special feigned,” “a serious invasion of the and and not circumstances magnitude.” description phrases of considerable at 736. were 282 Or These the court’s cases, prior jury apply evaluating not criteria that a to be instructed to a case may Telephone submitted to it. To the in the text Macca cases cited one add v. Gen. W., 414, (1972), recovery Co. P2d which sustained a for mental of N. by frequent telephone listing distress caused calls due to a error. The there court stated: “Allowing recovery suffering anguish unaccompanied
physical injuries
present
under the circumstances of the
case is in
accord
exists,
prеvious
independent
liability
decisions of this
Where an
basis
court.
irrespective
physical
recovery
injuries,
of whether there existed
uni-
has been
Oil,
formly
suffering
Douglas
anguish.” [citing
allowed for
v. Humble
and other cases.]
n. 1.
because of
Allen,
character,”
supra,
v.
or because defen-
flagrant
Melton
genuine
conduct” contributes “evidence of
“aggravated
dant’s
Stride,
damage,”
supra.
emotional
Fredeen
As
court
Edwards,
recovery
involving
law
for emotional
stated
“[t]he
in need of rethink-
generally
perhaps
is confused
280 Or at
n. 4.
ing by
courts.”
concept
of “tort”
vulnerable
this confusion
encompass
the one
is used to
both the defen-
because
word
redress.
wrong
entitling plaintiff
dant’s
and the
injury
conduct,
the focus is on defendant’s
an intentional
When
liability than a
deserving
often seems more
wrongdoer
perspective,
plaintiffs
careless or innocent one. From the
equally
the defendant has caused
severe
event,
knowledge of defendant’s atti-
plaintiffs
either
unless
Nevertheless, as in
magnifies plaintiffs
distress.
tude
fact
from tres-
some formulations of
for mental distress
pass
conversion,
the double focus sometimes
leads
culpability from the defini-
carrying the factor of defendant’s
plaintiffs damages
well.
tion of
tort into
measure
Torts,
quoted
Comment
See Restatement
Stride,
stated, however,
already
As
supra.8
Fredeen v.
Douglas v.
in that
and in
actually employed
formula
decision
Oil,
or exclusion of
supra,
rested
inclusion
Humble
distress not on the defendant’s motives
damages for mental
predictable
distress was a common and
but on whether such
*7
the kind of conversion
under
the circumstances of
result
contract,
In the tort of interference with another’s
involved.
knowledge
required
intent are
elements
the defendant’s
and
Walker,
Sanitary
v.
276
See American
Service
the tort itself.
Palmerton, 250
389, 394,
(1976), Wampler v.
Or
8 feeling, damages deprivation legal the of harms to the “If the cause harms, deprives intentionally for such as where the defendant be allowable plaintiff, furniture which humiliates the of essential household follow.” should have realized would result which defendant 927, Comment 1 at 4 of Torts Restatement Co., 201, 205-210, Body Shop generally Top v. Allstate Ins. Or Service See (1978), plaintiffs proof in cases. as to the burden of interference
582 P2d appeared adopt position in
The court Wampler supra, although holding Palmerton, v. it reached no damages, on because the court concluded that no tort had been proved. introductory In the course of review of the inter- opinion tort, ference stated: granted
“The relief is of the broad available in recompense tort actions and includes suffering, damage reputation, punitive damages. It therefore affords relief which would have been recoverable party breaching from the the contract and also for the less tangible personal sought harms such as those in the instant (Footnotes omitted.) case.” passage, however,
“The interest the interference with contract security action is the interest of the individual integrity of the contractual relations into which he has entered. Economic relations are controlled contract and public also has an in maintaining security interest provides protection.” transactions. Therefore the law (Footnotes omitted.)
Id. at
interests,
73. Commercial or economic
course,
protection
one kind of interest secured
that the
They
law affords to contractual
relations.
are the kind
Wampler
involved in
occupation,
and in this case. The interest in one’s
previously
in the
cited,
Massachusetts cases
Engelberg,supra,
home,
one’s choice of a
as in
often
Duff
goes beyond merely
regular wages
economic
interest
advantаgeous price
in an
as
to include such noneconomic values
personal
place,
pride
associations,
love of a
in one’s
up
identity.
work that add
to one’s sense of
recovery damages beyond
think, therefore,
We
pecuniary loss from interference with a contract does not
depend only
presence
on the
of intentional interference for an
improper objective
by wrongful
along
means,
with causa-
Top
Body Shop
tion.
Ins., Co.,
See
Service
v. Allstate
(1978). Damages
201,
This to the either for qualification. the Restatement one To recover reputation emotional distress or for harm to action for relations, injury interference with contractual of that kind disrupting a predictable must be common and result than a type relationship or transaction involved rather situation, “reasonably expected” particular be in the result 774(A)(1)(c), import supra, n. 5. as seems be the section wrong intentional, a of fore The defendant’s is not default relations, however, many of contractual sight. There are kinds just many trespass there are different settings as Fredeen, Compare Douglas supra, and with Hall conversion. (1960). Work, injury claimed relationship kind of contractual typical must of the interests that involved in the case in order to come within the designed protect, is what duty the tort of noninterference theory also to the recovery may other be available ever party. injured stated, can differ already typical
As these interests relationship employment, or consumer disrupted when the chattel, or a commer- purchase unique of a home or particular perhaps entrepreneurs, between cial transaction instance, wholly For when agreement. nonfinancial arrangements applied in order to secure contractual tort relationship temptatiоn this in tort law to state There is here as elsewhere Thus, “proximate” distinguished from causation. of “direct” as remote terms damaged reputation pleaded a reliable cattle dealer was in this case his proximate suffering the interference “a result of he endured mental direct and and fact, question it If the harm occurred But it is not a of causation. of the defendants.” dispute “natural” or “unnatural.” whether the occurrence was makes little sense to predictable was common claimed whether the kind Consideration accurately relationship disrupted what is more describes issue feature Douglas “legal Fredeen or cause” Restatement “direct and natural” called (Second) 774(A)(1)(b), supra, n. Torts opportunities general economy, in the mental or emo- *9 tional distress will not be a characteristic result of inter- ference corporate enterprises. may may between The same or not true of dealings characteristically be business carried on by individuals. argued ordinary
It can be that in dealings commercial among individuals, even designed protect only tort business interests —the purely economic interests of Adam who, Smith’s Mayne abstract “economic man” in suggested supra, “cannot & McGregor, complain injured feelings of alone.” Upon consideration, we that reject view. Commerce is too broad a category sweep all kinds of transactions under a single only rule protecting pecuniary interests against wrongful outsider’s interference. Established customs and expectations may vary in one economic sector from those in an entirely different one. The deals, loss of some fraction all of whether competitor induced other intermeddling, may be a experience common in business, some branches of though particular case tends to become upset. branches, In other such interference universally be recognized as a rare breach of custom predictable and a source dismay. of shock and Again, mental distress has been included in damages for interference with one’s employment; but too many and rely crafts trades independent on contracts as well as on employment, contracts of and the distinction is too tangential to the likelihood anxiety and to allow recovery for consequences when the interference employment but еxclude it for interference with business Rather, contracts as a matter of law. it open remains to show they are common and predictable consequences of such interference setting business involved.
Even when anxiety serious typical frustration are predictable disruptive effects of interference in a business setting, however, damages are confined to those effects. Recovery extends to the mental or emotional distress dealing involved in with the disruption By test, itself. this the stress of finding buyer another or source supply, restoring confidence in the future performance business, or in interference, case of more fatal selling liquidating enterprise could give damages; rise to personal consequences such as a sacrificed
distress vaca- stringency, family tion, financial would not. stresses applicable In this case the rule was discussed at length argument course on defendant’s motion for (more plaintiffs accurately at the conclusion of case dismissal 60), verdict, their motion for directed ORCP and on motion notwithstanding judgment the verdict. The trial court kind concluded that contractual interference is not the of tort “as a law” there matter of is such likelihood of jury can be it emotional that the instructed include general damages, but an award of rather that the instruc- higher proof be tions would standard of would be actually required. given challenged The instructions were not appeal appeal us. on not before Neither does the present concerning adequacy an issue evidence whether nonpecuniary injuries typiсally to result can *10 interfering Rather, with contracts between cattle dealers. argue assuming damages for defendants that even that mental resulting from a contract could be distress allowed at interference with “aggravated
all, there was insufficient evidence of by submitting plaintiffs justify defendants claim conduct” jury. for to the such opinion, the in this
Under test we have set forth recovery hinges in this tort on factors other for distress degree culpability. we Because have than the Appeals that the was mistaken about the concluded Court damages, requirements no for an award of other such application presented concerning the of the correct issue is case, in the the facts the decision of Court of rule to this jury’s judgment Appeals the must be and the on reversed verdict reinstated.
Reversed. concurring. specially
TONGUE, J., opinion by majority in reached I concur the result the disagree, adopted however, as I with the new test this case. by majority application this for in cases such as the requires in order to recover emotional which that reputation in an action for inter- for harm to distress or claimed contractual relations “the ference with typical the kind of relationship must be contractual involved in the case in order to come within the interests that * * duty protect the is designed tort non-interference my view, only require- imposes
In this test not new cases, ment must is a which be satisfied such but test which practical dependent upon is unworkable in application is the particular trial before subjective judgment judge tried, case subject whom the to reversal in the event particular appellate judges before whom the case is on heard appeal may disagree subjective Moreover, with that judgment. it is a suggested by party case, test was not either to this who have not had opportunity upon validity to be heard its invalidity. opinion
I am of the of requiring instead reputa- emotional distress harm to tion in case that the claimed injury must be “typical relationship case,” kind of contractual involved held majority, this court adopt should rule stated in 4 (2nd), 774A(l)(c), Restatement of Torts as contended case, this to the effect that one who liable to another for interference in a contract is liable for damages for emotional distress or actual reputation they harm to “if reasonably expected to result from the interference.” Under suсh a rule the “kind” of contract involved factor, would be a factor, but one considering question whether emotional reputa- actual harm to reasonably tion is to be inter- result ference.
PETERSON, J., dissenting. The issue in this case whether damages distress are recoverable in an action for with interference The majority contractual relations. hold that such agree be recoverable. I damages may, that mental distress cases, in some recoverable incident tort claim for relations, interference with I disagree contractual but with analysis both opinion the contained in majority and with its holding. opinion, mental distress majority
As I read the the tort of interference damages are allowable once with but limited as follows: proved, contractual relations is reputation injured 1. “The mental other * * * only resulted harm not must have of a kind interference, it also must have been that predictable have been common and would relationship accompaniment disrupting 718). opinion at (majority the defendant interfered” “* ** distress are limited to Mental anxiety typical pre- and frustration serious [which] setting interference in a disruptive dictable effects business ** to the Recovery extends mental emotional *. * * dealing disruption itself *. distress involved in with the such as a vaca- personal consequences at sacrificed [Distress tion, stringency, family [give stresses would not financial 719-720). (majority opinion at damages]” rise to any rule opinion specifically rejects The majority degree culpability (majority of defendant’s which turns on 720), saying at that there should be no consideratiоn opinion “* ** (majority culpability” factor of defendant’s 716). opinion, According majority to the once opinion is made out— tort of interference with contractual relations is, improper of intentional interference showing between another and performance contract they follow if meet the third distress person —mental criteria set forth above. I disagree.
I believe that before the tort can be made incident damages for relations, of contractual conduct of interference “outrageous” or of the must be either “malicious” tortfeasor theory on the support recovery would type which of emotional distress. infliction article in the Sayre wrote an In 1923 Francis Bowes Contract,” “Inducing Breach of Law Review entitled Harvard (1922-23). article he care- Rev In that Harv L It of this tort. background the historical fully traced for inter- genesis had its in claims the tort appears pointed out that of others. He property ference with *12 law, early the head a was Roman of Roman household entitled “* * * bring to an action his own for insult offered to him Id. at wife, children, his slaves.” through injury to his or his days, In those wives as well slaves were viewed as of the head of the property household. century,
In the thirteenth such a of action cause was recognized England remedy and in 1349 an additional was statute, by created giving liability enticing rise to for another’s statute, Labourers, servants. This the Ordinance was to response agricultural enacted created the crisis Id. at Plague. Great 665-666. 1853, Lumley Gye, v.
In El. & Bl. extended the remedy, an for recognizing damages action for interfеrence Recovery with contractual permitted relations. was on a claim an maliciously empresario that defendant had enticed procured singer, Wagner, perform Miss refuse plaintiff. page article, Sayre On 672 of the Mr. concluded that although Lumley Gye involved claim of malicious interference, by the century remedy twentieth was avail able for intentional interference with a contract. He pointed out, page malice, in the sense of an aim to plaintiff, harm the required no longer and that the tort can made out upon interference with the another, contract of with no competition longer justification appropriation of another’s property right existing According (4 contract. to the Restatement Restatement (Second) 766), Torts is mаde by showing tort out the defendant “intentionally improperly [interfered] * * * performance of a contract between another and a person.” third “* * * torts,
In some suffering if mental is the direct jury may and natural result the [tort], properly consider Stride, Fredeen v. mental distress as an damages.” element of (1974) 372-373, (action Or a dog). concurring opinion J., for conversion of of Tongue, this point reflects view. He would allow distress incident claim of intentional interference “* * * they reasonably contractual relations if majority result from the interference.” The an intermedi- take view, ate if the elements set allowing on page proved. forth 722 above are approaches though that such it can be claimed
Even damage tort traditional formulations of recoverable echo rules, showing conduct) disagree. require of an additional I I would (such outrageous allowing malice or before factor intentional interference with for mental distress for position relations, reasons *13 and I take this contractual enumerated or implicit majority opinion; i.e., that while in the reasonably protec- be construed as the cause of action cannot remedy alone, not be so interests should tive of economic broadly applied recovery every instance where as to allow relationship produces emo- interference with a contractual tional distress. that there are three lines of cases
Dean Prosser states have this issue. One line of cases limits considered damages. measure of recoverable to the contract damages, applies line the tort measure of but limits Another “sufficiently proximate,” damages to those which are analogy negligent A third line of cases to the rules as to torts. recovery one, and treats the tort as an intentional allows damage expenses, suffering, as well as for mental unforeseen to Torts 948-949 punitive damages. reputation, Prosser, The Law of W. (4th 1971).1 ed consideration, is a marked
In the tort under there recovery allow difference from other intentional torts which example, damages. of an For the case deny assault, and individual interests no one could social certainly outweigh security person. Such interests in the any possible conflicting interest in the freedom to do violence. involved, sense, in direct here in a real But the tort that is actiоn. of otherwise lawful commercial conflict with freedom Sayre, Professer As stated “* * * everyone restrain from the law can undertake to seriously impairing the committing acts of violence without action; undertake to restrain general freedom of it cannot thus may everyone committing otherwise lawful acts which contracts, causing people break their without result which the very freedom of individual action sacrificing that Sayre, supra at 687. largely to secure.” common law exists authority three lines of which list further citations to the Other authorities (1930); (1958); B U L Rev 285-295 7 Santa Clara L Rev include: 30 Colum (1966). Lawyer 141-147 policy
It seems to me that we are faced with
question.
The award of
for mental distress in such
“* * *
(to
Sayre)
quote
cases
tend to limit
freedom
Mr.
largely
individual action which the common law
exists
рolicies
conflict,
secure.” To the extent that the
are in
I would
question
action,
resolve
favor
freedom of individual
subject to the limitation that
the conduct of the
where
(as
“outrageous”
defendant
defined in Restatement of Torts
(Second)
recognized
§ 46,
Clark,
Pakos
(1969)),
goal
Permitting recovery same plaintiff for breach of contract could obtain from the person original with whom the contract was made would make sense, whole in an economic at least as far as person against claim for breach of contract is concerned. majority, permit however, would thе additional damages, irrespective *14 of mental distress of the defendant’s culpability, upon showing that such are “of a kind predictable that should have been as a common and accompaniment disrupting relationship which the defendant interfered.” jurisdictions, including Oregon, deny recovery
Most
for intentional
infliction of emotional
aas discrete
showing
aggravated
action,
cause of
absent some
circum
outrageous
stances such as
conduct malicious intent. To do
otherwise,
sense,
in a real
abolishes all forms and theories of
directly
action and makes
actionable
intentional inflic
damages.
Fieger
Village,
tion of such
See
v. Glen Oaks
309 NY
(1956).
527, 132NE2d 492
Hocks,
210,
See also Nees v.
272 Or
(1975) (concept
every
214-215,
has not considered special relationship to to a incident obligation based distress alone can be recovery for emotional plaintiff, causing emo- deliberately plaintiffs not aimed on conduct 454-458, Erwin, 435, P2d v. 600 Brewer Or tional distress. However, damages in an action (1979). we allow “* * * by if the actor of emotional distress the infliction recklessly intentionally or outrageous conduct extreme and Clark, supra; Pakos v. emotional distress.” caused severe (Second) Even in the cases of Torts Restatement disturbance redress for mental this court has allowed conduct, accom- tortious but without caused otherwise cases involved the facts of those physical injury, panying some conduct, right privacy, “outrageous invasion Melton v. magnitude.” circumstances of considerable special (1978). 736, Limiting the Allen, P2d 1019 Or in an action for mental distress recovery involving relations situations interference with contractual a measure of outrageous insure conduct would malicious uniformity in our tort law.
Granted,
Wampler
there are statements
v. Palmer
ton,
65, 73,
(1968) (dicta)
250 Or
Macea as the telephone number “after-hours” company plaintiffs concern, being resulting plaintiffs a commercial number of telephone calls. The tele- late-night disturbed numerous *15 error, to refused correct when informed of its phone company, “intercept.” the number on We by placing the situation “* ** being gov- plaintiffs cause of action characterized nuisance, stated relating private erned the law [we result- to recover for mental distress plaintiff is entitled that] at act.” 262 Or 418. ing negligent from defendant’s in completely I confess to less than confident being my my position, suggested depart because “rule” would impose damages required normal rule in tort cases and a showing of a second tier of in order to culpability obtain normаlly —mental —which a upon proof Perhaps recoverable of the elements of tort. my disagreement majority substantial, with the is not that they, too, limit requiring that the 722, above, elements set page forth on be made out.2 A certain anxiety amount emotional distress and is part an of living complex society. unavoidable in our As stated above, we strictly have heretofore limited anxiety. society such emotional distress and Our is one which has depended, inception, upon since its a high degree “freedom” conducting in economic again transactions. To quote Sayre, Mr. this tort many differs from other torts promised interest in the business is advantage “peculiarly apt be in direct with persons conflict the interests of third * * * general locomotion’; freedom of ‘motion and often the formеr interest can be protected from interference third ** parties only by a sacrifice L latter 35 flarv Rev at 687.
I (1) see real difference between interference with contract, simply (as, get example, benefits of a deal if a defendant person commodity induced third to break plaintiff, contract with the defendant did not know person contracted, whom the third had but the defendant simply commodity needed the for legitimate pur- business (2) poses) and existing interference with an contract order vex, annoy, injure or harm a plaintiff. otherwise In both cases the act is intentional. But in both the goal cases is not identical; there is a substantial difference between the two situations —a difference recognized which should be applied.
Turning case, then to the facts of this evi- dence shows that in purchasing defendant’s motive these events, At all it should be remembered one elements of this tort improper objective by wrongful interference contract “for majority opinion determining page means.” See 717. The factors to considered (Second) “improper” whether interference are set Restatement forth Torts *16 annoy, vex, injure was not to person
cattle from the third defendants, and an that the plaintiff. The evidence shows Inc., Co., had been the defendant Johnson Cattle agent purchase very of these person with the third for the dealing months, but had been unable to two approximately cattle her. In the absence of evidence of agreement reach an part intent misconduct or malicious on aggravated in this defendant, deny recovery I case. would Tanzer, J., joins this dissent.