Williams v. Lee Way Motor Freight, Inc. , 688 P.2d 1294 ( 1984 )

KAUGER, Justice.

The novel question presented is whether the two year statute of limitations provided by 12 O.S. 1981 § 95(3) or the limitation period of one year prescribed by 12 O.S. § 95(4) governs the time to bring an action for intentional infliction of emotional distress.¹ We find that § 95(3) is controlling.

Jimmie L. Williams (appellant-employee), was employed as a dock worker by Lee Way Motor Freight, Inc. (appellee-employer). On May 1, 1981, Lee Way’s assistant terminal manager accused Williams of stealing several bottles of mouth spray in the presence of his co-workers. Subsequently, the employee was detained, interrogated, arrested, imprisoned, and fired from his job. Approximately a month later, the larceny charges were dropped, and the employee was reinstated with full back pay. He filed an action for intentional infliction of emotional distress on June 8, 1982. The employer’s demurrer to the petition was overruled, and an amended answer and a motion for summary judgment were filed asserting that the statute of limitations was a complete bar to the employee’s cause of action. The trial court sustained the motion for summary judgment holding that the one year statute of limitations contained in 12 O.S. 1981 § 95(4) controlled.

The employee contends on appeal that because the cause of action for intentional infliction of emotional distress is not specifically enumerated in § 95(4), courts cannot read into the statute an exception which has not been expressed by the Legislature; that the express mention of one thing implies the exclusion of others not mentioned; and that even though the tort had its genesis in the tort of assault it comprises a separate and distinct basis for liability. The employer counters that Oklahoma did not acknowledge the tort of intentional infliction of emotional distress until Dean v. Chapman, 556 P.2d 257 (Okla.1976), and that because Dean adopted the Restatement of Torts (Second) comment (d) of § 46, it should also adopt the rationale of comment (b) of that section which states that intentional infliction of emotional distress may be regarded as an extension of the tort of assault.

IS THE LIMITATION PERIOD FOR THE TORT OF INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS GOVERNED BY 12 O.S.1981 § 95(3) or 12 O.S.1981 § 95(4)?

A

Allowing actions for mental and emotional injury outside the scope of some traditionally recognized tort is relatively new. The tort of intentional infliction of emotional distress consists of intentional, outrageous conduct which results in infliction of mental suffering in an extreme form, and resembles an ancient predecessor — assault. In describing the genesis of this new tort, Prosser noted, forty-five years ago, that in many cases courts strained to find a technical battery, assault, false imprisonment, trespass, or even an invasion of the right of privacy, as a tenuous excuse to permit par-astic recovery for mental injury, when in reality mental suffering was the only substantial damage sustained. Prosser also suggested that the inherent problem could be solved if the technical torts were removed from the cause of action, and the separate and independent tort of intentional infliction of extreme mental suffering caused by outrageous conduct were recognized.²

Numerous jurisdictions, following Pros-ser’s logic, now recognize that infliction of mental suffering as an independent cause of action.³ Generally, states which have adopted the tort of intentional infliction of mental anguish have followed the Restatement of Torts (Second) § 46 (1965), as has Oklahoma. The right to recover damages for emotional distress is not dependent on physical injury. After Dean v. Chapman, a new tort was recognized which did not require maintenance of the fiction of theoretical physical impact or injury in order to justify the award of damages for mental anguish. Dean acknowledged that one, who by extreme and outrageous conduct wilfully or wantonly causes severe emotional distress to another, is subject to liability for emotional distress and for any bodily harm emanating from the distress.⁴ The interest in mental and emotional security standing alone is regarded as sufficiently important to warrant protection through independent tort action — neither physical injury to, nor invasion of other interests of the claimant need be shown to establish a cause of action.⁵ The law protects emotional and mental tranquility against serious and intentional invasions.⁶ However, contemporary standards of civility do not allow recovery for every case of justified indignation. The tort requires some extraordinary transgression of the bounds of socially tolerable conduct.⁷

The litigants do not dispute that § 95(4) provides that actions for libel, slander, assault, battery, malicious prosecution, false imprisonment, or an action for penalty or forfeiture must be brought within one year unless the statute imposing it prescribes a different limitation. The employer argues that this section applies here because this tort is similar to assault. While we recognize the parasitic nature of this tort’s origins, we decline to subordinate it to the older torts. There is no compelling reason, historic or otherwise, why the newer tort, given its independent status should be tied to the limitation period of its ancestors.

Nor do we find any basis for expanding the statute to include unenumerat-ed torts. The tort of intentional infliction of emotional distress is neither addressed by statute nor parastically dependent on the existence of another cause of action. The maxim of statutory constriction that the expression of one thing or more excludes those not mentioned is applicable.⁸ The tort of intentional infliction of mental distress must, therefore, be governed by the more general two-year statute set forth in § 95(3) which applies to “an action for injury to the rights of another, not arising on contract, and not hereinafter enumerated.” Section 95 was originally written in 1910 and subsequently revised in 1953, 1961 and 1971. The statute was recodified in 1981 without change although the tort of intentional infliction of emotional distress had been adopted judicially some five years earlier. Accordingly, until such time as the legislature sees fit to classify this new tort, we must assume that the intent of the legislature is that it fall within the parameters of § 95(3).

B.

There is a second reason for finding that § 95(3) is controlling. Generally, if there is a substantial question of which of two or more statutes of limitations should be applied, the doubt should be resolved in favor of the application of the statute which contains the longest limitation.⁹ This serves the legislative intent of protecting defendants from stale claims, yet provides an approach of liberality which affords a plaintiff party-litigant maximum free access to our court system.¹⁰ Although statutes of limitation are primarily designed to assure fairness to defendants because they prevent claims from being brought when the relevant evidence is so old that it is unreliable, the policy of repose is outweighed where the interest of justice requires otherwise.¹¹ For the reasons stated, we find that the applicable statute of limitations for the tort of intentional infliction of emotional distress is 12 O.S. 1981 § 95(8).

REVERSED.

SIMMS, V.C.J., and HODGES, DOOLIN, ALMA WILSON and KAUGER, JJ., concur. BARNES, C.J., and LAVENDER and OP ALA, JJ., dissent. HARGRAVE, J„ disqualified.

1 . It is provided by 12 O.S. 1981 § 95(3), (4): "Civil actions other than for the recovery of real property can only be brought within the following periods, after the cause of action shall have accrued, and not afterwards: ... Third. Within two (2) years: An action for trespass upon real property; an action for taking, detaining or injuring personal property, including actions for the specific recovery of personal property; an action for injury to the rights of another, not arising on contract, and not hereinafter enumerated; an action for relief on the ground of fraud — the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud. Fourth. Within one (1) year: an action for libel, slander, assault, battery, malicious prosecution, or false imprisonment; an action upon a statute for penalty or forfeiture, except where the statute imposing it prescribes a different limitation_”

2 . M.B.M. Co., Inc. v. Counce, 268 Ark. 269, 596 S.W.2d 681, 686-87 (1980); Prosser, “Intentional Infliction of Mental Suffering: A New Tort,” 37 Mich.L.Rev. 874 (1939).

3 . See Ford v. Hutson, 276 S.C. 157, 276 S.E.2d 776, 777-778 (1981) for collected cases.

4 . In Breeden v. League Services Corp., 575 P.2d 1374, 1377 (Okla.1978) and Dean v. Chapman, 556 P.2d 257 (Okla. 1976) the court virtually adopted the Restatement of Torts.

5 . Byrd, "Recovery for Mental Anguish in North Carolina", 58 N.C.L.Rev., 435, 461 (1980).

6 . See State Rubbish Collectors Ass'n v. Siliznoff, 38 Cal.2d 330, 240 P.2d 282, 285 (1952), in which Judge Traynor traces the evolution of the tort.

7 . Hall v. May Dept. Stores Co., 292 Ore. 131, 637 P.2d 126, 129 (1981).

8 . A similar result was reached in Stewart v. Thomas, 538 F.Supp. 891, 898 (D.C.1982) and in Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325, 330 (1981).

Expressio unius est exclusio alterius is a rule of statutory construction which should not be applied to defeat legislative intent. In re Arbuckle Master Conservancy Dist., Dist. Ct. Murray Co., No. 9660, 474 P.2d 385, 391-92 (Okla.1970). We find that it is a helpful aid in this instance in the absence of legislative intent to the contra.

9 . Hughes v. Reed, 46 F.2d 435, 440 (10th Cir.1931); Payne v. Ostrus, 50 F.2d 1039, 77 A.L.R. 531 (1931); O'Malley v. Sims, 51 Ariz. 155, 75 P.2d 50, 115 A.L.R. 634 (1938); Southern P.R. Co. v. Gonzalez, 48 Ariz. 260, 61 P.2d 377, 106 A.L.R. 1012 (1936); Shew v. Coon Bay Loafers, Inc., 76 Wash.2d 40, 455 P.2d 359, 366 (1969).

10 . Salavea v. City and County of Honolulu, 55 Haw. 216, 517 P.2d 51, 54 (1973).

11 . Burnett v. N.Y. Central R.R. Co., 380 U.S. 424, 85 S.Ct. 1050, 1054, 13 L.Ed.2d 941 (1965).