Meyer v. 4-D Insulation Co., Inc. , 60 Or. App. 70 ( 1982 )

WARREN, J.

Plaintiff brought this action in circuit court for damages to real property caused by a fire allegedly resulting from defendant’s negligence in installing insulation in direct contact with the fluepipe of a woodstove in plaintiffs residence. The trial court dismissed the action. On appeal, plaintiff assigns error to the trial court’s (1) striking plaintiffs allegation of mental distress from the third amended complaint and (2) dismissing the fourth amended complaint for lack of subject matter jurisdiction.

In his third amended complaint,¹ plaintiff sought to recover $1,200 for smoke, heat and water damage to his house and furnishings arising out of defendant’s alleged negligence and $5,000 for “inconvenience, annoyance and discomfort,” which plaintiff characterizes as damages for mental distress. On defendant’s motion, the trial court struck the latter allegation. Plaintiff filed a fourth amended complaint seeking only the $1,200 for property damage. On defendant’s motion, the trial court dismissed the action on the ground that district courts have exclusive jurisdiction when the amount claimed is less than $3,000.

The first assignment presents the narrow issue whether pleaded damages for mental distress are recoverable in an action alleging only damage to property caused by negligence. This question is one of first impression in this state, although it has arisen elsewhere. See, e.g., Kuhr Bros. Inc. v. Spahos, 89 Ga App 885, 81 SE2d 491 (1954) (mental pain and suffering not recoverable damages in action for faulty installation of furnace causing home fire, where the injury complained of was not a personal tort but an injury to property, without a showing of malicious, wilful or wanton conduct); Sahuc v. U.S. Fidelity & Guaranty Co., 320 F2d 18, 21 (5th Cir 1963) (Louisiana case law permits recovery of mental anguish damages in negligence cases involving fright or nervous shock from being present in or near an accident, but owner of house damaged by fire proved no fright).

In actions specifically brought for intentional infliction of emotional distress, “extreme and outrageous” conduct is required. Mooney v. Johnson Cattle, 291 Or 709, 726, 634 P2d 1333 (1981); Pakos v. Clark, 253 Or 113, 453 P2d 682 (1969). In other actions, the general rule where damages for mental distress alone are sought is that some physical injury is required. See Norwest v. Presbyterian Intercommunity Hosp., 293 Or 543, 558-59, 652 P2d 318 (1982); Edwards v. Talent Irrigation District, 280 Or 307, 309, 570 P2d 1169 (1977). The rule for which plaintiff contends is that damages for mental distress are recoverable for negligent damage to any property as long as (1) there is an independent basis of liability and (2) the damages are the “common and predictable” result of the type of conduct involved. A correct statement of the first part of that proposition, as demonstrated by the case law, is that recovery of damages for mental distress absent physical injury is allowed where there is an independent basis of liability in certain cases. The cases have made reference not only to the quality of the tortfeasor’s conduct,² as in certain intentional torts, but also to the kind of interest invaded, as in private nuisance and invasion of privacy. The cases can be grouped into four main categories, although they cannot be said to form a definite pattern: (1) certain intentional torts, including trespass to land, Douglas v. Humble Oil, 251 Or 310, 445 P2d 590 (1968); Senn v. Bunick, 40 Or App 33, 594 P2d 837, rev den 287 Or 149 (1979); but see Melton v. Allen, 282 Or 731, 580 P2d 1019 (1978) (emotional distress damages disallowed in trespass to automobile); intentional interference with contractual relations, Mooney v. Johnson Cattle, supra; conversion, Fredeen v. Stride, 269 Or 369, 525 P2d 166 (1974) and Douglas v. Humble Oil, supra; racial discrimination, William v. Joyce, 4 Or App 482, 504, 479 P2d 513 (1971); (2) private nuisance, Macca v. Gen. Telephone Co. of N. W., 262 Or 414, 495 P2d 1193 (1972); and Edwards v. Talent Irrigation District, supra; (3) invasion of privacy, Hinish v. Meier & Frank Co., 166 Or 482, 113 P2d 438 (1941); Tollefson v. Price, 247 Or 398, 430 P2d 990 (1967); and (4) miscellaneous cases: unlawful disinterment of spouse’s remains, Hovis v. City of Burns, 243 Or 607, 415 P2d 29 (1966); infringement of right to child custody resulting from attorney’s failure to deliver client’s passport into “escrow” to prevent client from taking child out of the country, McEvoy v. Helikson, 277 Or 781, 788-89, 562 P2d 540 (1977).

It is true that in some of those cases the rule applied is that the mental distress must be the “direct, natural and proximate result” of the wrongful act, Hinish v. Meier & Frank Co., supra, 166 Or at 506, or the “common and predictable” result of the defendant’s conduct, Mooney v. Johnson Cattle, supra, 291 Or at 718. Sole reliance on that rule begs the question regarding the actions in which such damages have been recognized and allowed by Oregon courts. Such damages have been allowed on an ad hoc basis, but not on the basis of the “common and predictable result” rule advanced by plaintiff.

It is difficult to imagine a circumstance in which damage to any property does not directly, naturally and predictably result in some emotional upset. Unless some other line is drawn, as we believe there must be as a policy matter, neither the quality of a defendant’s conduct nor the predictability of distress as a result of property damage alone or together form a basis for an award of compensatory damages for emotional distress. Rather, it is the kind of interest invaded that, as a policy matter, is believed to be of sufficient importance to merit protection from emotional impact, that is critical. Regardless of the language used to describe when such damages are recoverable, the Oregon cases allowing such damages all involve an interference with the person beyond the inconvenience and distress always resulting from interference with property.

Plaintiff contends (and the dissent argues) that this case is governed by Macca and Edwards. Those cases do not support recovery of damages for mental distress in this case. In Macca, the plaintiff was subjected to repeated telephone calls occasioned by a telephone company’s negligent listing of her telephone number under the name of a florist shop. The court characterized the invasion as a private nuisance:

“We conclude that the erroneous listing of plaintiffs telephone number and the numerous telephone calls to plaintiff resulted in an invasion of plaintiffs right to enjoy her property without unreasonable interference. As such it is governed by the law relating to a private nuisance, and plaintiff is entitled to recover for mental distress resulting from defendant’s negligent act.” 262 Or at 418.

This language relates the right to mental distress damages to the fact that the action was for a private nuisance. The court explained that nuisance may arise from intentional, reckless, or negligent conduct on the defendant’s part, or from operation of an abnormally dangerous activity. 262 Or at 419. Thus, the right to damages for mental distress was predicated on the kind of interest invaded, rather than on a particular level of culpability. The court elaborated on the kinds of invasions that may be included in a private nuisance action:

“* * * The gist of the action is the invasion of the individual’s interest in the use and enjoyment of land. Raymond v. Southern Pacific Co., [259 Or 629, 634, 488 P2d 460 (1971)]. It includes the disturbance of the comfort or convenience of the occupant of the land. Prosser, [Torts] 592, § 89 [(4th ed 1971)]; York et ux v. Stallings et al, 217 Or 13, 21, 341 P2d 529 (1959). Dean Prosser gives as examples of the latter unpleasant odors, smoke or dust, loud noises, and repeated telephone calls.”

Macea thus turned on the fact that the invasion was an ongoing interference with the use and enjoyment of the plaintiffs residence. In contrast, plaintiff here alleges no such ongoing interference, but merely property damage to a house. That, without more, is not the kind of interference with use and enjoyment of property that constitutes a nuisance.

A footnote in Macea appears to explain the rule in broader terms:

“Allowing recovery for mental suffering and anguish unaccompanied by physical injuries under the circumstances of the present case is in accord with previous decisions of this court. Where an independent basis of liability exists, irrespective of whether there existed physical injuries, recovery has been uniformly allowed for mental suffering and anguish. Douglas v. Humble Oil, 251 Or 310, 445 P2d 590 (1968) (conversion); Tollefson v. Price, 247 Or 398, 430 P2d 990, 33 ALR3d 149 (1967) and Hinish v. Meier & Frank Co., 166 Or 482, 113 P2d 438, 133 ALR 1 (1941) (invasion of privacy); Williams v. Joyce, 91 Adv Sh 1481, 4 Or App 482, 479 P2d 513 (1971) (racial discrimination); Hovis v. City of Burns, 243 Or 607, 415 P2d 29 (1966) (wrongful disinterment of remains of plaintiffs husband); Rockhill v. Pollard, 259 Or 54, 485 P2d 28 (1971) (‘outrageous’ conduct by physician in treating a patient, citing 1 Restatement of Torts 2d, § 46, comment j.) For a general discussion and criticism of the rule prohibiting recovery for mental distress without a physical injury or pecuniary loss, see Prosser, Law of Torts (4th ed) 327-330, § 54.” 262 Or at 418 n 1. (Emphasis added.)

The cited cases for the most part are examples of certain intentional torts, with the addition of invasion of privacy and unauthorized mishandling of a corpse where the level of culpability could be less than intentional. What the court in Macca actually held, despite the inclusion of broader language in the footnote, was that damages for mental distress are recoverable in negligence actions, even absent physical injury, where defendant’s conduct constitutes a private nuisance.

In Edwards, decided five years after Macca, the plaintiffs asserted they had suffered damages as a result of the entry of water onto their property from the defendant’s irrigation ditch. At trial, the plaintiffs recovered damages, including payment of expenses incurred to drain excess water from their property, malfunctioning of their sewage facilities, death of fruit trees and garden failure, as well as mental anguish. The court based its upholding of recovery of damages for mental anguish on Macca, which it characterized as holding that “damages for mental anguish are recoverable in a negligence action when they are the result of [the] defendant’s interference with the use and enjoyment of plaintiffs’ land.” 280 Or at 310. The Edwards court held that the defendant’s negligence had interfered with the plaintiffs’ interest in the use and enjoyment of their land. 280 Or at 309. The court further described the nature of the mental distress:

“The testimony in this case clearly reveals that the mental anguish for which plaintiffs recovered was the direct result of their concern for the damage to their property caused by defendant’s negligence and their attempts to minimize that damage. They were anguished over the loss of the use of their laundry and bath facilities and the necessity of spending hours attempting to drain their land, and for other concerns caused by the entry of the water. * * *” 280 Or at 310. (Emphasis added.)

In a footnote the court unequivocally limited its holding to nuisance cases:

“Although we hold in this case that emotional distress damages may be recovered in an action for nuisance, we emphasize that our holding is limited to this particular species of case. The law involving recovery for emotional distress generally is confused and perhaps in need of rethinking by the courts. We have concluded, however, that this case does not provide a proper vehicle for reconsideration of the rules governing recovery for this type of injury.” 280 Or at 310 n 4.

After Macca, this explicit limitation clearly indicates that recovery of damages for mental distress is to be determined, not according to the dictum in the Macca footnote, but according to the specie of case.

The confusion alluded to by the court in Edwards was remarked upon in Mooney v Johnson Cattle, supra, a case which extended recovery of damages for mental distress to actions for intentional interference with contract. Justice Linde reasoned that commercial or economic interests are not the only kinds of interests secured by the protection that the law affords to contractual relations, and he commented that the interest in one’s occupation included “such non-economic values as personal association, love of a place, and pride in one’s work that add up to one’s sense of identity.” 291 Or at 717.

In Mooney, the court based its result on two theoretical grounds, by application of a Restatement rule and by analogy to employment relations. Restatement (Second) Torts, § 774(A)(1)(c) (1977), specifically provides for damages for mental distress in actions for intentional interference with contractual relations.³ In rejecting the argument that the tort of intentional interference with contractual relations is designed to protect only pecuniary interests, the court compared the action with interference with employment relations, and concluded' that, for purposes of recovery of damages for mental distress, there was no critical distinction:

“Again, mental distress has been included in damages for interference with one’s employment; but too many crafts and trades rely on independent contracts as well as on contracts of employment, and the distinction is too tangential to the likelihood of anxiety and distress, to allow recovery for such consequences when the interference is with employment but exclude it for interference with business contracts as a matter of law. Rather, it remains open to show that they are common and predictable consequences of such interference in the type of business setting involved.” 291 Or at 719.

It is apparent that the reasoning supporting the extension of damages for mental distress to actions for intentional interference with contract is expressed with reference to the particular specie of case involved: intentional interference with contract. Although the court does require that the damages be a “common and predictable” result of the interference, that requirement is a necessary ingredient in any claim, not the basis of the court’s extension of the right.⁴

The broad implications of the rule urged by plaintiff are that damages for mental distress become possible whenever property is damaged, whether intentionally or negligently. It is entirely common and predictable, for example, that a person will be disturbed and upset when someone negligently breaks the headlight of his or her cherished automobile or causes a softball to crash through a picture window. We do not yet live, however, in an “eggshell society” in which every harm to property interests gives rise to a right of action for mental distress. As Justice Peterson said in his dissent in Mooney, “A certain amount of emotional distress and anxiety is an unavoidable part of living in our complex society.” 291 Or at 727. Some emotional upset is still left uncompensated. Extension of the right to recover damages for mental distress in a given case is basically a policy decision. The Supreme Court’s extension of that right by species of case⁵ is consonant with the reluctance of courts in general to give credence to mental distress claims absent some indication that they are real and not feigned. As Prosser notes,

“The temporary emotion of fright, so far from serious that it does no serious harm, is so evanescent a thing, so easily counterfeited, and usually so trivial, that the courts have been quite unwilling to protect the plaintiff against mere negligence, where the elements of extreme outrage and moral blame which have had such weight in the case of the intentional tort are lacking.” Prosser, Torts 328, § 54 (4th ed 1971). (Footnotes omitted.)

This issue is before us in the posture of a pleading question. While a plaintiff need not plead more than he must prove, Vanek v. Kirby, 253 Or 494, 500, 450 P2d 778, 454 P2d 647 (1969), he must at least plead that which he must prove as a minimum to recover damages for emotional distress. Plaintiff here pleaded only negligently caused damage to his property and no facts from which it may be inferred that defendant’s conduct amounted to a private nuisance of the type occurring in Macca and Edwards. This case does not fall within the rule of Macca or Edwards. We decline to extend recovery of damages for mental distress to this particular specie of case.⁶

We conclude that the trial court did not err in striking the allegations of mental distress from the third amended complaint.

In the second assignment,⁷ plaintiff contends that the trial court should not have dismissed the action on the ground that exclusive jurisdiction lies in district court for claims under $3,000, as provided in ORS 46.060(1)(a),⁸ when a claim was made in excess of that amount at the outset of the case. Here, the first amended complaint set out causes of action for breach of warranty and negligence; the amount demanded in the ad damnum clause or prayer was $1,200 for property damage and $5,000 for inconvenience, annoyance and discomfort. After the allegation of mental distress damages was stricken from the third amended complaint, the trial court dismissed the action, because the claim set out in the fourth amended complaint was only for $1,200.

Whether the circuit court should dismiss a claim for damages that is reduced by pleadings or motions to an amount within the exclusive jurisdiction of the district court is a question of first impression.⁹ Cf. Springer v. Bowen, 60 Or App 60, 652 P2d 863 (1982) (order of dismissal in circuit court proper where attorney fees are costs and not part of plaintiffs claim and hence not includable in jurisdictional amount). We perceive no benefit in forcing litigants to pursue their remedies in two forums. ORS 46.060(1)(a), supra n 8, provides that exclusive jurisdiction lies in the district court for claims under $3,000. The claim in this case was originally for greater than that amount. Even though the claim for mental distress damages was later properly withdrawn from the complaint, jurisdiction should remain in circuit court. We conclude that the circuit court here erred in dismissing this action.

Affirmed in part; reversed in part; remanded to circuit court for further proceedings.

1 In relevant part the third amended complaint provided:

“V.

“As a result of the fire in Plaintiffs residence, Plaintiffs property was damaged in the following respects:

“1. Irreparable damage to Plaintiffs wood stove.

“2. Smoke, heat and water damage to the ceilings and walls of Plaintiffs residence.

“3. Smoke, heat and water damage to Plaintiffs furniture and carpeting, requiring the repair or replacement thereof; which damages are in the sum of $2,253.14, of which $1,053.14 has been repaid to Plaintiff, all to Plaintiffs damage in the sum of $1,200.00.

“VI.

“As a result of the fire in Plaintiffs residence, Plaintiff was subjected to inconvenience, annoyance and discomfort and was damaged thereby in the sum of $5,000.”

2 Damages for emotional distress are compensatory, not punitive. Thus, the quality of the conduct is per se irrelevant, because negligently caused damage may be as disturbing as that caused by a defendant intentionally. Intentionally caused damage causes an additional emotional impact only when the quality of the conduct becomes known to the victim and adds to his remorse or outrage at the destruction of his property. If damages for emotional distress are truly compensatory rather than a disguised form of punitive damages, then the relevance of the quality of the conduct is in its effect on the victim.

3 The court in Mooney v. Johnson Cattle, 291 Or 709, 634 P2d 1333 (1981), departed in one particular from the Restatement rule, by holding that the mental distress “must be a common and predictable result of disrupting the type of relationship or transaction involved rather than a result ‘reasonably to be expected’ in the particular situation, as seems to be the import of section 774(A)(1)(c).” That change is consonant with the secondary test expressed in Macea.

4 As noted earlier, the “common and predictable” language used in the opinions does not add anything to our understanding of when emotional distress damages are recoverable. Any interference with any legally protected right commonly and predictably results in some emotional distress.

5 In Norwest v. Presbyterian Intercommunity Hasp., supra, 293 Or at 558-59, the Supreme Court discussed recovery for psychic injury when a defendant’s conduct infringes on some legally protected interest, even when done negligently. The court’s discussion is consistent with the ad hoc approach exhibited in the cases, in the sense that no general rule is advanced, but rather, reliance is placed on prior decisions. For example, in discussing a child’s attempting to recover damages for emotional distress when some one injures the child’s parents, the court stated:

“* * * Arguably, also, the child has rights in the parental relationship sufficiently like those asserted in Hovis and McEvoy to support a similar recovery for a psychic injury inflicted even by negligence.* * *” 293 Or at 559.

6 The damages for inconvenience, annoyance and discomfort pleaded by plaintiff as general damages are adequately compensated by special damages for the cost of obtaining substitute living quarters and enhanced living expenses during their occupancy while the premises damaged are restored.

7 Defendant contends that the trial court should have used the summary procedure for direct review by this court as set out in ORS 46.063(1):

“In any case where there is a dispute as to whether jurisdiction is in district court or some other court, the court before which the matter is pending shall refer the question to the Court of Appeals which shall decide the question of jurisdiction in a summary manner. The decision of the Court of Appeals on a question of jurisdiction shall be final.”

In Holmes v. Oregon Assn Credit Mgmt, 52 Or App 551, 554 n 4, 628 P2d 1264 (1981), we noted that the procedure in ORS 46.063(1) is not the exclusive method to test subject matter jurisdiction. The question of the circuit court’s subject matter jurisdiction is properly before us now for resolution.

8 ORS 46.060 provides, in relevant part:

“(1) Except as provided in subsection (2) of this section, the district courts shall have exclusive jurisdiction in the following cases:

“(a) For the recovery of money or damages only when the amount claimed does not exceed $3,000. When, in such a case arising out of contract, the ends of justice demand that an account be taken or that the contract be reformed or canceled, the district court shall have jurisdiction to decree such accounting, reformation or cancellation.”

9 In Class v. Carter, 293 Or 147, 645 P2d 536 (1982), the Supreme Court held that when a commercial FED action filed in district court is transferred to circuit court under ORS 46.075 because of counterclaims filed in excess of the jurisdictional amount, despite the lack of statutory authorization for the filing of counterclaims in any amount in a commercial FED action, the circuit court retains jurisdiction even if the circuit court determines that the counterclaim should be stricken. The court stated:

“In FED cases, the circuit court does not sit as an appellate court over the district court. Once transferred, the circuit court alone has jurisdiction of the cause.” 293 Or at 156.

The court expressly limited its holding to commercial FED cases. 293 Or at 157 n 8. The result in Class v. Carter, supra, however, is not inconsistent with the approach we adopt today.