The plaintiffs Edward P. Foley and Mary Foley filed a complaint in the Superior Court for Middlesex County, alleging injury as a result of certain tortious conduct of the defendant, Polaroid Corporation. The defendant filed a motion to dismiss for lack of subject matter jurisdiction pursuant to Mass. R. Civ. P. 12 (b) (1), 365 Mass. 755 (1974). A judge of the Superior Court granted the defendant's motion, and the plaintiffs appealed to the Appeals Court. We transferred the case here on our own motion.
We summarize the facts as set forth in the plaintiffs' complaint. Edward P. Foley was hired by the defendant corporation on December 13, 1965, as a lead computer operator on the midnight to 8 A.M. shift. On June 11, 1976, the defendant received a complaint from another employee who worked on the midnight to 8 A.M. shift, stating that Edward Foley had assaulted and raped her during working hours. Foley and the employee who filed the complaint had a prior history of conflict and were, at the relevant time, in a competitive posture, each seeking a promotion to the same position. The defendant conducted a private investigation of the complaint during which, the plaintiffs say, defendant went beyond the scope of investigation to the point of instigating the filing of a criminal complaint against Edward P. Foley. On June 28, 1976, the alleged victim filed criminal charges in the Waltham District Court. On or about August 6, 1976, Foley was indicted on charges of rape and assault. There is some confusion whether Foley was sent home from work prior to or subsequent to being indicted,
Shortly after Foley was acquitted, officers of the defendant corporation expressed regret over his ordeal and agreed to return him to pay status. Additionally, Foley received back pay in the amount of $22,024.94, and was given three weeks' paid vacation. When Foley returned to work he was assigned to the defendant's Needham facility instead of being placed in his former position at the Waltham facility. Foley alleges that he was given a desk but was assigned no work. On or about November 15, 1977,
The plaintiffs contend that the defendant has caused Edward Foley to suffer severe emotional distress and physical injury, to be maliciously prosecuted, to have his reputation injured, and to have his civil rights violated. The plaintiffs further claim that the defendant has caused damage to Mary Foley's marital relationship with her husband which has resulted in a loss of consortium.
The defendant corporation argues that the plaintiffs' alleged injuries are compensable under the Massachusetts Workmen's Compensation Act, G.L.c. 152, § 1, et seq., and that the act provides an exclusive remedy. See G.L.c. 152, §§ 23-24. It asserts that Edward Foley was an
We note at the outset that the question whether the complaint sets forth sufficient facts to sustain causes of action for intentional infliction of mental distress, malicious prosecution, defamation, a violation of civil rights, and loss of consortium, is not before us. The method for testing the sufficiency of the complaint is by a motion to dismiss in the Superior Court for failure to state a claim for which relief can be granted, pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). No such motion was filed below, and we consider only whether the motion to dismiss for lack of jurisdiction over the subject matter, pursuant to Mass. R. Civ. P. 12 (b) (1), 365 Mass. 754 (1974), was properly granted.
The defendant's motion to dismiss was properly granted if the plaintiffs' claims are barred under the exclusivity provision of the Workmen's Compensation Act, G.L.c. 152, § 24, as amended through St. 1955, c. 174, § 5. That provision states in pertinent part: "An employee shall be held to have waived his right of action at common law or under the law of any other jurisdiction in respect to an injury therein occurring, to recover damages for personal injuries if he shall not have given his employer, at the time of his contract of hire, written notice that he claimed such right...." Edward Foley does not assert that he gave the defendant notice of his rights under the compensation act, but rather that his injury is not covered under the act. Common law actions are barred only where: the plaintiff is shown to be an employee; his condition is shown to be a "personal injury"
We first address the plaintiffs' argument that at the time their injuries were sustained by virtue of the defendant's conduct, Edward Foley was not an employee of the defendant corporation. While the plaintiffs are certainly correct that one must be found to be an employee before compensation may be had under the act (Harvey's Case, 295 Mass. 300 ), we conclude the complaint alleges that Foley was, in fact, an employee at all relevant times. The complaint alleges that "while the criminal cases were still pending against the plaintiff, the defendant ... notified the plaintiff of his termination as an employee with the defendant corporation, that he would no longer be carried on the payroll and promised that if he were cleared of the criminal charges pending against him ... he would be returned to his former position." The complaint further alleges that shortly after Foley was acquitted, the defendant "agreed to return the plaintiff to pay status, compensate the plaintiff for back-pay, which was lost during his ordeal, and allowed the plaintiff immediately three weeks vacation with pay." These allegations are inconsistent with the plaintiffs' argument before this court that there was a severance of the employment relationship. Lack of employee status is refuted by the plaintiffs' admission that Foley accepted back pay and a three-week paid vacation following his absence. There is, of course, no basis for a "lack of employee status" argument with respect to injury allegedly suffered before and after Foley's physical absence from the defendant's place of business.
We now consider each of the plaintiffs' claims separately to determine whether relief is sought for injury which would be compensable under the act as a "personal injury arising out of and in the course of ... employment." G.L.
We conclude that the employee's claim for injury to his reputation is not the type of personal injury contemplated by G.L.c. 152. In so concluding, we emphasize the lack of relation between the kind of injuries covered by the compensation act and the injury involved here. The act has been interpreted to encompass physical and mental injuries arising out of employment, whereas the gist of an action for
We now turn to the employee's claim for malicious prosecution. The controlling argument must be that the essence of the tort is not physical or mental injury, but interference with the right to be free from unjustifiable litigation. See W. Prosser, Torts § 119, at 834 (4th ed. 1971). Any physical or mental harm is incidental, and is not an indispensable ingredient of the tort. See Larson, supra at § 68.31. At this point the distinction between the employee's claims for malicious prosecution and defamation on the one hand, and intentional infliction of mental distress on the other hand, becomes clear: mental harm is the essence of the tort of intentional infliction of mental distress; it is an indispensable element of the tort. It matters not that all three claims are
We now consider the employee's claim that his civil rights have been violated. He offers neither a particularized description of this claim nor a legal basis for it. However, as we have previously indicated, we do not consider the sufficiency of the complaint to raise the claims asserted.
Finally, we turn to defendant's argument that the claim of Mary Foley that the conduct of the defendant deprived her of her husband's society and companionship is barred by G.L.c. 152. We have resolved this question adversely to the defendant's contentions in Ferriter v. Daniel O'Connell's Sons, supra at 529-530. "The Workmen's Compensation Act does not bar the [wife's claim] for loss of consortium and society." Id. at 530.
HENNESSEY, C.J. (dissenting in part).
I would deny recovery to Mary Foley on her consortium claim arising out of the injury to her husband which was compensable under the Workmen's Compensation Act. On this issue, I agree with the reasoning of Justices Quirico and Wilkins in their separate opinions in the Ferriter case, supra at 530, 543.
QUIRICO, J. (dissenting in part).
The court holds in the penultimate paragraph of its opinion that "[t]he Workmen's Compensation Act does not bar the [wife's claim] for loss of consortium and society." The holding was stated in language quoted in turn from the court's opinion of this same date in the case of Ferriter v. Daniel O'Connell's Sons, supra, at 553. I respectfully dissent from that holding for the same reasons on which I based my dissent from the same holding in the Ferriter case. Supra at 530 (Quirico, J. dissenting).
WILKINS, J. (dissenting in part).
For the reasons stated in my dissent in Ferriter v. Daniel O'Connell's Sons, supra at 543 (Wilkins, J., dissenting), I would not permit Mary Foley to recover for the loss of her husband's society and companionship caused by any injury he sustained that was covered by the Workmen's Compensation Act.