APPEAL from the Circuit Court of Cook County; the Hon. PAUL
ELWARD, Judge, presiding.
MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 16, 1979.
Plaintiffs, Margaret Sherman, Raymond M. Sherman, Jr., and Deborah Billy, Margaret Sherman's minor daughter, brought this action in the circuit court of Cook County seeking recovery for damages allegedly arising out of attempts made by defendant Collection Accounts Terminal, Inc. (CAT), to collect a debt purportedly owed by plaintiffs to defendants Field Clinic and Raymond F. Cunningham, M.D., doing business as Field Clinic (the Clinic). Count I of the complaint alleged intentional infliction of severe emotional distress and sought compensatory damages, while count II alleged violation of the Collection Agency Act (now Ill. Rev. Stat. 1977, ch. 111, par. 2001 et seq.) and sought compensatory and punitive damages.
The issues are: (1) whether the trial court erred in dismissing the complaint as to the Clinic on the grounds that (a) CAT was an independent contractor and not an agent of the Clinic and (b) the acts alleged were beyond the scope of any agency relationship between the two; (2) whether the complaint states a cause of action for intentional infliction of severe emotional distress; (3) whether the complaint states a cause of action under the Collection Agency Act; and (4) whether the prayer for punitive damages under the Collection Agency Act was properly not stricken.
Plaintiffs' complaint in two counts, filed in conjunction with a jury demand, made the following allegations. Plaintiffs are members of a family who reside together. CAT is a collection agency which served as the agent of the Clinic for the collection of an account in the amount of $170 purportedly owed to the Clinic for medical care administered to plaintiff Margaret Sherman. During the period beginning on or about September 13, 1977, and ending on or about November 22, 1977, CAT, as the agent of the Clinic, engaged in severe harassment of plaintiffs in an attempt to collect on the account owed to the Clinic. The acts committed by CAT or its agent included the following: telephoning plaintiffs' residence 10-20 times per day 3 days per week and 5-6 times per day 2 other days per week; sending numerous letters to plaintiffs' residence; making numerous telephone calls to Mr. Sherman at his place of business, though only Mrs. Sherman was responsible for any debts due the Clinic; threatening to "embarrass" Mr. Sherman by contacting his employers and co-workers; threatening to garnish half of Mr. Sherman's wages; frequently using profane and obscene language in calls to Mr. Sherman; calling and speaking to Mrs. Sherman's 15-year-old daughter, plaintiff Deborah Billy, in connection with the debt, though only Mrs. Sherman was responsible for any debts due the Clinic; frequently making threats to the daughter that Mr. and Mrs. Sherman would be sent to jail for not paying the bill; and frequently using abusive language in calls to Mrs. Sherman. Plaintiffs alleged that this extreme and outrageous conduct was wanton, malicious, and oppressive, and was intended to inflict, and did inflict, severe mental and emotional distress on the plaintiffs, wherefore plaintiffs sought compensatory damages from CAT and the Clinic.
Count II of plaintiffs' complaint realleged the above allegations. Plaintiffs then alleged the following: that CAT is a collection agency within the meaning of sections 2.02 and 2.03 of the Collection Agency Act (now Ill. Rev. Stat. 1977, ch. 111, pars. 2004 and 2005); that the conduct performed by CAT as the agent of the Clinic violated sections 9, 9.02, 9.05, 9.06, 9.07, 9.08, and 9.10 of the Collection Agency Act (now Ill. Rev. Stat. 1977, ch. 111, pars. 2012, 2014, 2017, 2018, 2019, 2020, and 2022); and that as a result of these violations, plaintiffs experienced mental and emotional distress, wherefore plaintiffs sought compensatory and punitive damages against CAT and the Clinic.
CAT filed an answer to the complaint, admitting that it acted as the Clinic's agent in attempting to collect on the account and admitting that it was a collection agency within the meaning of the Collection Agency Act, but otherwise denying the allegations of the complaint. The Clinic, however, filed a motion to dismiss the complaint as substantially insufficient in law in the following particulars: first, that neither count of the complaint stated a cause of action; second, that the only basis for liability alleged against the Clinic was that CAT acted as the Clinic's agent in attempting to collect on the account, and the mere allegation of an agency relationship was insufficient to state a cause of action for vicarious liability; third, that a credit agency is an independent contractor and therefore the Clinic cannot be liable for the torts of CAT; and fourth, that count II fails to state a cause of action against the Clinic because the Collection Agency Act does not provide for a private or civil right of action, applies only to collection agencies, and does not authorize punitive damages.
Acting on this motion, the trial court dismissed both counts of the complaint as to the Clinic on the grounds that CAT was an independent contractor and not an agent of the Clinic, and that the tortious acts alleged were beyond the scope of their agency relationship. Plaintiffs appeal from this portion of the trial court's order. The trial court also held that count I of the complaint stated a cause of action against CAT for intentional infliction of severe emotional distress, that count II stated a cause of action against CAT for violation of the Collection Agency Act, and that the prayer for punitive damages in count II was proper and should not be stricken. The Clinic cross-appeals from these portions of the order insofar as they may affect the Clinic.
1, 2 The threshold issue is whether the trial court erred in dismissing plaintiffs' complaint as to the Clinic on the grounds that CAT was an independent contractor and the acts allegedly committed by CAT were beyond the scope of any agency relationship between CAT and the Clinic. Unless the parties' relationship is so clear as to be undisputed, questions such as the existence and scope of an agency relationship are questions of fact, to be decided by the trier of fact (Yuhas v. Allis-Chalmers Distribution Service Corp. (1973), 12 Ill. App.3d 814, 821, 299 N.E.2d 166; Hulke v. International Manufacturing Co. (1957), 14 Ill. App.2d 5, 32-33, 142 N.E.2d 717). Resolution of these questions necessarily depends upon such facts as the right of the principal to control the acts of the agent (Reith v. General Telephone Co. (1974), 22 Ill. App.3d 337, 339-40, 317 N.E.2d 369; Yuhas; Dumas v. Lloyd (1972), 6 Ill. App.3d 1026, 1029-30, 286 N.E.2d 566; Hulke), the ability of the agent to enter into binding negotiations on behalf of the principal (Hoffman & Morton Co. v. American Insurance Co. (1962), 35 Ill. App.2d 97, 181 N.E.2d 821), and the extent to which the tortious conduct alleged was committed in the course of and in furtherance of the principal's business. (E.g., Bremen State Bank v. Hartford Accident & Indemnity Co. (7th Cir. 1970), 427 F.2d 425, 428.) To require plaintiffs, without benefit of discovery, to include in their complaint sufficient factual detail to permit a determination of these questions from the face of the complaint is both unrealistic and unnecessary. See Laycock, Dispositive Pre-Trial Motions in Illinois Sections 45, 48 and 57 of the Civil Practice Act, 9 Loy. Chi. L.J. 823, 834-35 (1978).
3, 4 Section 33(3) of the Civil Practice Act provides that "[p]leadings shall be liberally construed with a view to doing substantial justice between the parties" (Ill. Rev. Stat. 1977, ch. 110, par. 33(3)); section 42(2) provides that "[n]o pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which he is called upon to meet." (Ill. Rev. Stat. 1977, ch. 110, par. 42(2).) These rules apply when considering motions to strike or dismiss (e.g., Highway Insurance Co. v. Korman (1963), 40 Ill. App.2d 439, 442-43, 190 N.E.2d 124), and thus, if on the facts alleged and all reasonable inferences that may be drawn therefrom, there is demonstrated any possibility of recovery, the action should not be dismissed. (Bureau of Credit Control v. Scott (1976), 36 Ill. App.3d 1006, 1007, 345 N.E.2d 37.) Accordingly, the allegation that a tortious act was done on the alleged principal's behalf has been held sufficient to withstand a motion to dismiss. (E.g., Highway Insurance Co. v. Korman (1963), 40 Ill. App.2d 439, 446-47, 190 N.E.2d 124.) Similarly, in the instant case, plaintiffs' allegation that CAT committed the allegedly tortious acts while acting as the agent of the Clinic and in an attempt to collect a debt on behalf of the Clinic was sufficient to establish the Clinic's possible vicarious liability. Therefore, the Clinic's motion to dismiss, which addressed itself solely to the legal sufficiency of the complaint (e.g., Cain v. American National Bank & Trust Co. (1975), 26 Ill. App.3d 574, 586, 325 N.E.2d 799), should not have been granted on this basis.
We note that the Clinic's motion to dismiss, though unlabeled, challenged only the sufficiency of the complaint in law, and therefore was a motion pursuant to section 45 of the Civil Practice Act. (Cain v. American National Bank & Trust Co.) In Dixon v. Ford Motor Credit Corp. (1979), 72 Ill. App.3d 983, 391 N.E.2d 493, recently decided by this court, the question was raised as to whether the existence of an agency relationship was an issue properly raised on a motion to dismiss under section 48(l)(i) (Ill. Rev. Stat. 1977, ch. 110, par. 48(l)(i)), relating to other affirmative matter barring the claim asserted against a defendant. However, because we found that in any event a wrongful act had not been alleged, we found it unnecessary to decide the question. For a different reason, we find that we need not decide it here. Even if the nonexistence of an agency relation is properly raised on such a motion, under the circumstances it would be a ground not appearing on the face of the pleading and which, therefore, must be supported by affidavit. (Ill. Rev. Stat. 1977, ch. 110, par. 48(l)(i).) Unlike the alleged principal in Dixon, the Clinic has submitted no affidavits in support of its motion, and therefore the motion fails as a section 48 motion as well as a section 45 motion. See Dangeles v. Marcus (1978), 57 Ill. App.3d 662, 373 N.E.2d 645.
5 The Clinic attempts to argue that as a matter of law, collection agencies are always independent contractors, but of the cases cited by the Clinic in support of this position, the arguably closest case itself demonstrates that the question, as we have stated, is one of fact. (See Lynch Jewelry Co. v. Bass (1929), 220 Ala. 96, 124 So. 222.) The Clinic also argues that as a matter of law, intentional infliction of severe emotional distress is outside the scope of employment, citing Rosenberg v. Packerland Packing Co. (1977), 55 Ill. App.3d 959, 370 N.E.2d 1235, and Nelson v. Nuccio (1971), 131 Ill. App.2d 261, 268 N.E.2d 543. While in Rosenberg the court did state that a truck driver's intentional infliction of distress was outside the scope of his employment and therefore his employer would not be vicariously liable, in doing so the court relied on Nelson v. Nuccio. In that case, involving a policeman's threats of murder and subsequent murder of the plaintiff's son, the court held, not that a principal could never be liable for the intentional infliction of emotional distress by its agent, but that the complaint failed to allege that the acts were committed while the policeman was on duty or otherwise acting within the scope of his employment. Indeed, in Nelson the court acknowledged that the city would have been liable if the acts had been within the scope of the policeman's employment. (Nelson v. Nuccio (1971), 131 Ill. App.2d 261, 263, 268 N.E.2d 543.) Therefore, we cannot find that these cases stand for the proposition for which they are cited.
Having found that plaintiffs' complaint sufficiently alleged the Clinic's possible vicarious liability for CAT's allegedly tortious conduct, we must now consider the issues raised by the Clinic's cross-appeal relating to whether the complaint states any cause of action in tort. The first issue is whether the trial court properly found that the complaint stated a cause of action for intentional infliction of severe emotional distress. The elements of that tort are: (1) extreme and outrageous conduct, (2) intended to cause (or committed in reckless disregard of the probability of causing), (3) and causing, (4) severe emotional distress on the part of the plaintiff. Restatement (Second) of Torts § 46 (1965); accord, Public Finance Corp. v. Davis (1976), 66 Ill.2d 85, 360 N.E.2d 765; Debolt v. Mutual of Omaha (1978), 56 Ill. App.3d 111, 371 N.E.2d 373.
The only element that the Clinic contends is lacking here is the first, extreme and outrageous conduct. In Public Finance Corp. v. Davis (1976), 66 Ill.2d 85, 360 N.E.2d 765, our supreme court had occasion to consider the nature and content of this element in the same setting as here, that of debt collection. Noting that the plaintiff in Public Finance admitted owing the debt, the court found that the collection agency's conduct was not so extreme and outrageous as to constitute a basis for recovery under the theory alleged. (66 Ill.2d 85, 91-94, 360 N.E.2d 765.) Except for a single impermissible act, the complaint reflected only a persistence in making telephone calls and a certain lack of sensitivity in making visits on the part of the collection agency. The court specifically noted that in cases permitting actions for severe emotional distress to proceed, the debtors had alleged "the use of abusive and vituperative ...