Todd v. South Carolina Farm Bureau Mutual Insurance

Gardner, Judge,

dissenting:

The majority opinion strips the jury of its prerogative to determine issues of fact. I would affirm because I am convinced the general verdict rendered is supportable as to at least one of the causes of action submitted to the jury.

The majority correctly analyzes the impact of the “two-issue rule” on this case. Under that principle, a general verdict must be affirmed when it is supportable on any one of the causes of action submitted to the jury. Anderson v. West, 270 S. C. 184, 241 S. E. (2d) 551 (1978); Gasque v. Heublein, Inc., S. C, 315 S. E. (2d) 556 (S. C. App. 1984).

*177This case was submitted to the jury on three theories: (1) wrongful interference with contractual relations; (2) outrage; and (3) wrongful termination of employment. Appellants agreed to the general form of verdict submitted to the jury. Under these circumstances, allegiance to the “two-issue rule” requires this court to affirm if any one of the three causes of action was properly submitted to the jury. Thus, if any competent evidence was presented to create a jury issue as to any one of the causes of action, this verdict must be affirmed. In determining whether any competent evidence exists to support the verdict, this court must view the evidence in a light most favorable to plaintiff Todd. See cases collected in West’s South Carolina Digest, Appeal and Error, Key No. 927(3).

Plaintiff Todd, during all pertinent times, was a married man with a minor child. He made his living as an insurance agent and had been employed by the appellant insurance companies since 1972, during which time he has accumulated hundreds of customers with yearly renewable policies from which he earned a commission. Plaintiff Todd was so employed when claims manager Garnett hired Equifax to investigate fire losses in Horry County.

Equifax’s agent Parrish reported that plaintiff Todd was hindering the investigation by leaking information to a “torch man.” Parrish said this information came from an informant whose name he refused to reveal. Agent Parrish then submitted plaintiff Todd to a voice-stress analysis test in the presence of the Loris office manager for Farm Bureau. A voice-stress analysis or PSE test is proscribed by the laws of the State of South Carolina. See South Carolina Code of Laws § 40-53-40 (1976). By affidavit, Equifax’s agent Parrish stated he would take the Fifth Amendment regarding his administration of the voice-stress analysis test upon plaintiff Todd.

Subsequently, the results of the illegal test were revealed to Garnett as having indicated stress, and plaintiff Todd was asked to submit to a polygraph test “to clear up the matter.” When Todd requested a postponement of the test until his attorneys could be present, he was fired by W. D. Lee, vice-president of sales for Mutual and state sales manager for the Life and Casualty Companies. Plaintiff Todd testified he suffered a great deal of embarrassment and mental distress due to the accusations about him, the imposition of the voice-stress analysis test, and his discharge.

*178It is undisputed that the three Farm Bureau appellants are separate entities, each represented by its own counsel throughout this trial and on appeal. Three separate employment contracts existed between plaintiff Todd and the Farm Bureau companies.

1. Interference With Contractual Relations

I would hold that sufficient evidence existed that Equifax, acting as agent for two of the Farm Bureau companies, tortiously interfered with plaintiff Todd’s employment contracts; this is especially true as to the Life Company’s employment contract with Todd since the trial judge found as a matter of fact that Equifax was not employed by it. I cannot agree with the majority’s assertion that Equifax’s actions in accusing Todd of cooperating with arsonists and administering the illegal voice-stress analysis test did not lead to his dismissal. The evidence does not support this conclusion. Moreover, it is a judicial intrusion into the jury’s province. Whether or not Equifax’s actions precipitated Todd’s firing was a question of fact to be resolved by the jury.

I would hold that sufficient evidence was adduced to prove that Equifax, acting as agent for the Mutual and Casualty Companies, intentionally interfered with all three contracts of employment by trumping up ostensibly groundless charges against Todd and administering an illegal PSE test to him, both of which led directly to his discharge.-1 believe the trial judge would have been in error had he refused to submit this cause of action to the jury.

2. Outrage

The maj ority asserts that appellants’ conduct toward plaintiff Todd was not extreme and outrageous as a matter of law and that, therefore, this issue was not one for the jury. I disagree. The applicable rule is set forth in an annotation in 86 A.L.R. (3d) at page 457 as follows:

It is for the court to determine, in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery, and where reasonable men may differ, it is for the jury, subject to the control of the court, to determine *179whether the conduct has been sufficiently extreme and outrageous to result in liability.

The pivotal issue, then, is whether reasonable men might differ in determining if the tort of outrage had occurred.

Unjustified accusations of infidelity were grounds for legal separation of a marriage in South Carolina prior to the Divorce Act of 1948. As the writer understands, false accusations of wrongdoing result in similar changes in pulse rate, perspiration and blood pressure as does lying when measured by polygraph machines. The writer feels that false and unjustified accusations of infidelity to one’s employer made by an investigator of the employer, thus threatening one’s means of earning a living, must of necessity result in mental distress and emotional trauma; a fortiori, when the false and unjustified accusations are that the employee is associating and collaborating with felons committing crimes against the employer and the unjustified and false accusations are followed by the humiliating experience of having to submit to an illegal PSE test and especially when all these psychic wounds and insults are exacerbated by a disgraceful discharge. In an instant, one would realize that the dissemination of such accusations and other affronts would forever end one’s career. The writer submits that the twelve jurors reasonably concluded that the appellants’ conduct was so outrageous as to constitute the tort of outrage. The learned and esteemed trial judge thought so and so does the writer of this dissenting opinion. Numb sensibilities to this type of conduct seem unreasonable to the writer.

I would hold that reasonable minds could differ on this question under the situation which existed, and that viewing the evidence in a light most favorable to Todd, the verdict is not only supportable on this theory but that it would have been error for the trial judge to grant appellants’ motion for nonsuit.

In Ford v. Hutson, 276 S. C. 157, 276 S. E. (2d) 776 (1981), the South Carolina Supreme Court formally recognized the tort of outrage. That case involved abusive actions by a physician to the realtor from whom he had purchased an allegedly defective house. The Court upheld a verdict for actual and punitive damages against the physician, despite his contentions that his conduct was neither extreme nor outrageous. The Court *180stated: “When evidence is in conflict and susceptible of more than one reasonable inference, it is the province of the jury to make a factual determination.” 276 S. C. at 166, 276 S. E. (2d) 776.

Similarly, in Hensley v. Heavrin, 277 S. C. 86, 282 S. E. (2d) 854 (1981), a woman brought suit against a physician for an incorrect diagnosis of venereal disease, alleging the intentional infliction of emotional distress or outrage. The Supreme Court, relying on Ford v. Hutson, supra, held that the plaintiff had stated a cause of action against the physician. “The question of whether the action of appellant was of such an extreme and outrageous nature as to constitute the tort of mental distress is a question of fact to be determined by the jury.” 277 S. C. at 88, 282 S. E. (2d) 854.

Ford and Hensley reveal the Supreme Court’s reluctance to invade the jury’s province where any competent evidence of extreme and outrageous conduct is present. The majority, however, concludes as a matter of law that despite the apparently groundless charges lodged against Todd, the administration of an illegal PSE test, and the implicit admission of criminal activity by one of the Equifax’s investigators, the appellants’ conduct was not extreme and outrageous. I would hold that this record contains ample evidence from which a jury could reasonably conclude that plaintiff Todd was the victim of the tort of outrage.

With reference to the majority opinion’s conclusion that there was insufficient evidence of severe emotional distress, I would point out that the trial judge carefully instructed the jury that physical manifestations of emotional distress are unnecessary. The writer is particularly concerned about this phase of the majority opinion. When one receives a psychic trauma, our maker often blesses this person with shock, a phenomenon which shields us temporarily from deep and lasting pain and injury. Few of us are capable of verbalizing the agony felt; indeed, few of us have the ability of introspection, self-analysis and diagnosis of the psychic damages suffered. Plaintiff Todd told of his stress — admittedly, not in dramatic terms. The jury with its accumulated experience, after instruction by the learned trial judge, assessed the psychic injury. I would not presume to substitute my judgment for the jury’s under the circumstances nor can I concur *181in the majority opinion which holds that the evidence does not support severe emotional injury to plaintiff Todd; such a holding is inconsistent with my experiences.

3. Wrongful Termination

The majority, though tacitly recognizing the Supreme Court’s signal in Hudson v. Zenith Engraving Company, Inc., 273 S. C. 766, 259 S. E. (2d) 812 (1979), that the public policy exception to the terminable-at-will rule might one day be the law in this state, concludes as a matter of law that no evidence of a public policy violation was present here. In so doing, the majority ignores the fact that the public policy considerations which prompted the General Assembly to enact S. C. Code of Laws, § 40-53-40 (1976), were arguably violated by the appellants in this case.

While I would defer to the Supreme Court for the erosion of the longstanding terminable-at-will rule, I would hold that sufficient evidence of a public policy violation was present here to warrant submission of this issue to the jury, guided by the able trial judge’s careful charge. Moreover, even if the Supreme Court should decide against the public policy exception hinted at earlier in Hudson, in view of my resolution concerning the other two causes of action, I would still affirm.

Finally, I cannot agree with the majority’s conclusion that the trial judge committed reversible error in allowing the plaintiff to read into evidence portions of the deposition of Richard Romard, an Equifax executive. Romard testified that Farm Bureau asked Equifax’s agent Parrish to obtain a voice-stress analysis from Todd. This was contrary to the position of Farm Bureau that Equifax had suggested the giving of the PSE test. Accordingly, I would hold that the statement, admittedly hearsay, was admissible as a declaration against interest, one of the recognized exceptions to the rule against hearsay. Alternatively the evidence was cumulative to other evidence presented on this issue and its admission was harmless error, if any.

The majority opinion oversteps the bounds of appellate inquiry by overruling the jury on factual matters. I would hold that sufficient evidence existed to warrant submission of all three causes of action to the jury and that the verdict for *182actual and punitive damages should be affirmed under the “two-issue rule.”1

The above dissent was written in response to the original majority opinion, some four pages less voluminous.