concurring in part; dissenting in part.
I concur in the majority opinion with respect to holding that defendants were not entitled to judgment notwithstanding plaintiffs verdict and that plaintiffs judgment for compensatory damages must be reinstated. I dissent from that part of the majority opinion concerning defendants’ conduct following the “browbeating” incident and the majority’s decision concerning punitive damages.
The majority has found that the evidence of the browbeating and its circumstances was such as to present a case for the jury upon plaintiffs theory of recovery in tort. With that I agree. The majority goes on, however, 292 Or at 139, 637 P2d at 132, to set the stage for its treatment of punitive damage by stating that
“the decisions concerning plaintiffs work assignments subsequent to the episode were not the kind of acts encompassed by this tort.”
By this ploy the majority seeks to establish that defendants’ tortious conduct consisted of nothing but speech so as to support its holding that the Oregon Constitution does not permit recovery of punitive damages. Thus is formed the basis for the later assertion by the majority:
“Plaintiff seeks to distinguish the rule of Wheeler v. Green because ‘speech is the gravamen of the tort of defamation,’ whereas, according to plaintiffs argument, Mr. Rummell’s speech in this case was only incidental to the tort of intentional infliction of severe emotional distress. The distinction would have weight if the tort in this case rested on any conduct other than Rummell’s accusations to plaintiff in the course of his interrogation. ” (Emphasis added.)
292 Or at 146-47, 637 P2d at 136.
Plaintiffs complaint is not that the defendants made decisions concerning her work assignments after the browbeating episode. Rather, she complains of defendants’ conduct following the episode as being part of the ongoing tortious conduct1 shown by the evidence. It is a reasonable *149inference that the conduct was the result of decisions, but her complaint concerns the conduct, not the decisions which led to the conduct.
There is evidence from which the jury could have found the following: Plaintiff was an employee at will and therefore vulnerable as being subject to discharge at her employer’s whim. She had won certificates of excellence in training courses offered at her employer’s expense. The purpose of the training courses was to fit plaintiff for selling certain lines of cosmetics if and when they became available. Her employer had indicated that at such time she would be the one to handle those lines. Plaintiff had been given a rating of “higher than average” by her supervisor, DuBrauer, and other laudatory comments had been made about plaintiffs work. A vice-president of the employer had, at a special luncheon to honor plaintiff and one other employee, presented plaintiff with an award for excellent service in her job. She had enjoyed a good working and social relationship with her co-workers and with DuBrauer.
The evidence would support findings that after the encounter with Rummell, plaintiff failed to get a new line of cosmetics for which she had been trained, and her employer gave her a false reason for that action. Later, another line was taken from her and she was given a reason which was patently false to her. A showcase she used to display her shampoo line was taken from her, resulting in her not being able to display her goods properly. Her sales dropped drastically. Her employer’s security people conducted almost constant surveillance of her. Her co-workers and DuBrauer ostracized her. She became so distressed by all of this that she could not continue the employment.
It is about the entire course of conduct that the plaintiff has complained, not just in the evidence but in detail in her second amended complaint. It is entirely beyond me as to how the majority can brazenly state that plaintiffs case rested on nothing more than Rummell’s accusations. There was an abundance of other conduct, perhaps more subtle than Rummell’s shouting and table pounding, but nevertheless a continuation of the harassment which commenced with that incident. Eventually the *150purpose of that conduct succeeded as plaintiff became so distressed as to cause her to leave an employment which had formerly promised so much to her.
In the majority’s own words, that conduct affords the basis to distinguish our decision in Wheeler v. Green, 286 Or 99, 593 P2d 777 (1979).
At 292 Or at 147, 637 P2d at 136, the majority puts its point in a “nutshell” by use of an example. The example no more convinces me than does the holding of the case at bar. I would suggest another example: A man seduces a previously chaste adult woman. She is afterwards filled with remorse and rejects his importunities to engage in further sexual relations. He is angered by this, and upon a Sunday morning he enters the church she and her family have long attended and, in the presence of her family and lifelong friends and company assembled, shouts out to her the details of the sexual encounter. He intends to get even with her for rejecting him by causing her severe emotional distress. His statements are all strictly true and would not therefore support an action for damages for defamation. She immediately becomes hysterical and eventually develops agoraphobia as a result of defendant’s speech in the church. I find nothing in the Oregon Constitution or in Wheeler v. Green, supra, 2 which would support a holding that because the defendant’s conduct consisted of nothing but speech, he would be immune from an award of punitive damages should the trier of fact desire to make such an award.
The decision in that case to take away plaintiffs award of punitive damages was an accommodation of a *151perceived conflict between the grant of freedom of speech, Article I, section 8, of the Oregon Constitution, and the preservation of remedy for injury to reputation, Article I, section 10, of the Oregon Constitution. That conflict is not presented here, and the case is not in point.
I dissent.
Tongue, J., joins in this opinion.This court has held that the tort with which we are here concerned may consist of a course of conduct intended to cause the plaintiff severe emotional distress. Turman v. Central Billing Bureau, Inc., 279 Or 443, 568 P2d 1382 (1977).
Sometimes one is a party to a decision which, with the passage of time, does not seem so logical or the result so compelling as one once believed. It happens on even the highest court of this land.
“Although I joined the Court’s opinion in New York Times [v. Sullivan], I have come greatly to regret the use in that opinion of the phrase ‘actual malice.’ ”
Herbert v. Lando, 441 US 153, 99 S Ct 1635, 60 L Ed 2d 115 (1979), Stewart, J., dissenting, 60 L Ed 2d at 148.
I find that as time goes on I have acquired some reservations about our decision (which I authored) in Wheeler v. Green, 286 Or 99, 593 P2d 777 (1979), but this case does not present the necessity of formally re-examining my position there taken.