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Docket Number

74909.

Attorney(S)

Douglas W. Mitchell III, for appellant. J. Baker McGee, Jr., Jack J. Helms, for appellees.

Judges

DEEN, Presiding Judge.

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Smart Summary

Hallford v. Kelley et al., Court of Appeals of Georgia (Dec. 8, 1987)

Factual and Procedural Background

Appellant Linda Hallford's husband, an employee of Slash Pine Electric Membership Corporation (managed by appellee Kelley), previously sustained an on-the-job injury and had drawn workers' compensation benefits. After returning to work he experienced difficulties that led to discussions with Kelley about possible disability status and benefits. Mrs. Hallford went unannounced to Kelley's office to question him about placing her husband on disability and the amount of benefits. Kelley declined to discuss the matter without the husband present. A brief confrontation of approximately five to ten minutes ensued. The parties' depositions conflict concerning whether Kelley verbally abused, moved toward, or otherwise threatened Mrs. Hallford (including picking up a telephone and threatening to call police), or whether Mrs. Hallford acted threateningly toward Kelley. No witnesses observed the incident. Mrs. Hallford filed an assault action alleging injuries to body and mind against Kelley and Slash Pine (as principal). Defendants moved for summary judgment, which the trial court granted. Mrs. Hallford appealed.

Legal Issues Presented

Whether the evidence, viewed in the light most favorable to the non-moving party, created a genuine issue of material fact sufficient to avoid summary judgment under OCGA § 9-11-56.
Whether the alleged words and actions of Kelley, if accepted as true, constituted an assault (i.e., created a reasonable apprehension of violent injury).
Whether the alleged verbal conduct could support recovery for intentional infliction of emotional distress.

Arguments of the Parties

Appellant's Arguments

Mrs. Hallford testified Kelley called her a "troublemaker," rose and moved toward her, and, while picking up the telephone, threatened to call the police to make her leave; she alleges resulting nervousness and ongoing treatment by a physician and psychologist.
She claims injuries to her body and mind, including physical pain and mental anguish, sufficient to sustain an assault and related damages claim.

Appellees' Arguments

Kelley testified Mrs. Hallford pushed past the secretary, stood over his desk in a threatening manner, made threats ("I'll get you for this!"), and left before he called the police; he denied touching or moving toward her and denied raising his voice or using profane language.
Defendants argued there was no physical contact or overt motion to touch, the evidence is conflicting and amounts to a "swearing contest," and thus no reasonable jury could find an assault or actionable intentional infliction of emotional distress.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Capitol TV Svc. v. Derrick, 163 Ga. App. 65 (293 S.E.2d 724) (1982)	Definition of assault: when all apparent circumstances reasonably viewed lead a person to apprehend violent injury from another's unlawful act.	The court applied this definition and concluded that, even construing the evidence for Mrs. Hallford, the alleged words and conduct did not create a reasonable apprehension of violent injury constituting assault.
Sanders v. Brown, 178 Ga. App. 447 (343 S.E.2d 722) (1986)	Principle that recovery for intentional infliction of emotional distress requires actions so terrifying or insulting as naturally to humiliate, embarrass or frighten the plaintiff.	The court cited this line to explain that the conduct alleged here was far less offensive than conduct in cases allowing recovery for intentional infliction of emotional distress.
Westview Cemetery v. Blanchard, 234 Ga. 540 (216 S.E.2d 776) (1975)	Example precedent involving extreme conduct supporting emotional distress recovery.	Used as illustrative precedent to show the relative severity required for such recovery; the court found Kelley's alleged conduct not comparable.
McCoy v. Ga. Baptist Hosp., 167 Ga. App. 495 (306 S.E.2d 746) (1983)	Another case addressing extreme conduct in intentional infliction of emotional distress claims.	Cited to support the proposition that prior recoveries involved much more offensive acts than those alleged here.
American Fin. Loan Corp. v. Coots, 105 Ga. App. 849 (125 S.E.2d 689) (1962)	Precedent concerning conduct warranting recovery for emotional distress.	Referenced to show that the instant allegations fall short of the severity recognized in earlier cases.

Court's Reasoning and Analysis

The court first stated the summary judgment standard under OCGA § 9-11-56: evidence and reasonable inferences must be construed in the light most favorable to the non-moving party, and a defendant moving for summary judgment must pierce the plaintiff's pleadings to show no genuine issue of material fact remains. The court reviewed the record and found no allegation or evidence that Kelley physically touched or made an overt motion to touch Mrs. Hallford; the evidentiary record contained conflicting deposition accounts, reducing the dispute to a "swearing contest." Applying Capitol TV Svc. v. Derrick's definition of assault, the court concluded that being called a "troublemaker," being told the police would be called, and a possible step toward the plaintiff while dialing a telephone do not, reasonably viewed, create an apprehension of violent injury sufficient to constitute an assault. The court further compared the alleged verbal conduct to cases allowing recovery for intentional infliction of emotional distress, finding the present allegations far less offensive than conduct recognized in those cases, and therefore insufficient to support such a claim. On these bases the court determined summary judgment for defendants was proper.

Holding and Implications

Judgment affirmed.

Direct effect: The trial court's grant of summary judgment in favor of Kelley and Slash Pine Electric Membership Corporation was affirmed, dismissing Mrs. Hallford's assault claim. The opinion reflects no decision establishing new law beyond applying existing standards for assault and for intentional infliction of emotional distress; it treats the case as one in which the alleged conduct did not meet the thresholds established by prior precedent.

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HALLFORD v. KELLEY et al.

DEEN, Presiding Judge.

Appellant Linda Hallford's husband was an employee of appellee Slash Pine Electric Membership Corporation, of which appellee Kelley was general manager. Approximately one year previous to the time of the incident which gave rise to the action below, Mr. Hallford had sustained an on-the-job injury for which, for some period of time, he had drawn workers' compensation benefits. He had returned to work but allegedly had had some difficulties (whether or not related to the injury is not clear from the record) which, according to unclear but nevertheless apparently undisputed evidence, had led to a discussion or discussions between Mr. Hallford and appellee Kelley regarding the possibility of Mr. Hallford's being placed on disability status and drawing disability insurance benefits.

According to Mrs. Hallford's deposition testimony, her husband requested that she go to Kelley's office and question him regarding the possible placing of Mr. Hallford on disability, and what the disability benefits, expressed in dollars and cents, would amount to. Again according to Mrs. Hallford, she went to Kelley's office unannounced, closed the door to the secretary's office, and requested — or demanded, according to Kelley's deposition — a complete statement as to Kelley's "intentions toward" her husband. There was undisputed testimony that Kelley declined to discuss the matter with Mrs. Hallford unless her husband were also present. During the remainder of the impromptu conference, which the parties agreed lasted approximately five minutes (or, at a maximum, ten), Mrs. Hallford continued to press Kelley for the desired information and he continued to refuse to discuss it, for the reasons previously stated.

At this point the testimony regarding the details of the incident is in hopeless conflict. According to Mrs. Hallford, Kelley called her a "troublemaker" and rose from behind his desk and, in a loud and angry tone, asked her to leave the office. Still according to Mrs. Hallford, she moved a step or so towards the door but retorted, "You can't push me out of here!", whereupon Kelley simultaneously took a step towards her and picked up the telephone, replying (in partial paraphrase), "Like hell I can't! I'm going to call the police to come and make you leave." Mrs. Hallford testified that she then left the office in such a nervous stated that she had to consult a physician later that day, and had continued to see that physician and also a psychologist. She subsequently acknowledged, however, that either she or her husband (or both) had already consulted these professionals prior to the incident complained of. She asserted that during the entire interview with Kelley she had spoken quietly and maintained a "lady-like" demeanor.

According to Mr. Kelley's deposition testimony, he was entering his office by a back door when Mrs. Hallford pushed past his secretary, who was standing in the front door. Kelley testified that, after inviting Mrs. Hallford to sit down, he seated himself at his desk and asked what her business was. According to Kelley, he could not remember whether Mrs. Hallford did not sit down at all or had sat briefly and then risen and stood over his desk in what he regarded as a threatening manner. According to Kelley, he declined to discuss her husband's situation without the latter present and, when Mrs. Hallford continued to insist, asked her to leave. When she refused, he lifted the telephone to call the police; Mrs. Hallford leaned over his desk and said, "I'll get you for this!" and left the office before he had actually dialed the number of the police department. According to Kelley, once he had sat down at the beginning of the incident, he remained seated the entire time. He denied that he had used opprobrious or profane language to Mrs. Hallford or had raised his voice to her. He further testified that, since he had recently undergone major surgery, and was also receiving treatment for diabetes at the time of the incident with Mrs. Hallford, he had been left in a physically shaken condition by appellant's conduct. The parties agree that there was no witness who either saw or overheard the incident, as the secretary had left her office during that time.

Mrs. Hallford filed an assault action in the Clinch County Superior Court, alleging "certain injuries to her body and mind" and the infliction of "both physical pain and mental anguish." She named as defendants both Kelley and Slash Pine, as principal for whom Kelley was agent. Appellees moved for summary judgment, and the trial court granted the motion. Mrs. Hallford appeals the award of summary judgment to the defendant/appellees. Held:

On motion for summary judgment, the evidence, with all reasonable inferences therefrom, must be construed in the light most favorable to the non-moving party: here, Mrs. Hallford. OCGA § 9-11-56. The movant, when defendant, must pierce the plaintiff's pleadings and show that there is no genuine issue of material fact to be resolved by the jury or other factfinder. Id.

Our exhaustive review of the entire record in the instant case reveals that, while there is much conflict in the details of the testimony, there is no contention that Mr. Kelley in any way physically touched Mrs. Hallford or even made an overt motion to do so. There is only Mrs. Hallford's allegation that, as he picked up the telephone, he took a step in her direction, whereas Mr. Kelley testified that he not only did not move in her direction but was seated during the entire incident. Kelley further alleges that it was Mrs. Hallford, not he, who made threatening remarks and movements. The entire evidentiary situation thus degenerates into the proverbial "swearing contest."

In Capitol TV Svc. v. Derrick, 163 Ga. App. 65 ( 293 S.E.2d 724) (1982), this court held that an assault occurs when "all the apparent circumstances, reasonably viewed, are such as to lead a person reasonably to apprehend a violent injury from the unlawful act of another." Even construing the conflicting deposition testimony in the light most favorable to Mrs. Hallford (as, of course, we must), it is difficult for us to conclude that being called a "troublemaker," being told that the police would be called to evict her, and possibly being moved towards while her adversary was at the same time dialing a telephone number, would create such an apprehension of violent injury as reasonably to be considered an assault.

We note further that both parties cite cases which deal with verbal assault arguably amounting to the intentional infliction of emotional distress. The cases cited involve the use of language or actions which — even if, arguendo, the plaintiff's allegations are absolutely true — are light years removed in offensiveness from the words and acts allegedly employed by Mr. Kelley towards Mrs. Hallford. In Sanders v. Brown, 178 Ga. App. 447 ( 343 S.E.2d 722) (1986), this court held at 449 et seq., that "in those cases where recovery has been authorized for intentional infliction of emotional distress, the defendant's actions were so terrifying or insulting as naturally to humiliate, embarrass or frighten the plaintiff." See, e.g., Westview Cemetery v. Blanchard, 234 Ga. 540 ( 216 S.E.2d 776) (1975); McCoy v. Ga. Baptist Hosp., 167 Ga. App. 495 ( 306 S.E.2d 746) (1983); American Fin. Loan Corp. v. Coots, 105 Ga. App. 849 ( 125 S.E.2d 689) (1962).

We find no error in the trial court's award of summary judgment to defendants.

Judgment affirmed. Birdsong, C. J., and Pope, J., concur.