Before Bauer, Circuit Judge, Kilkenny, Senior Circuit Judge,*fn* and Cudahy, Circuit Judge.
Harriet M.*fn1 and Phillip J. Bast, her husband, brought this action for intentional infliction of emotional distress in Illinois state court. Appellee, Ford Motor Credit Corporation, removed the case to the district court on the ground of diversity, and subsequently moved for summary judgment. The district court granted appellee's motion. Phillip Bast (appellant) appeals. We affirm.
Appellant claims that he and his wife suffered emotional distress as a result of phone calls in which appellee's agents were attempting to locate appellant's son. He alleges that on several occasions these agents "berated and insulted" him and his wife after they denied knowing the whereabouts of their son. He also alleges that appellee's agents suggested that the Basts ought to pay the debt owed by their son. This harassment, it is alleged, culminated in a phone call to Mrs. Bast while she was in the hospital afflicted with a serious illness, and contributed to her death a few months later.
Our view of the entire record convinces us that under Illinois law, appellant cannot prevail. In Public Finance Corp. v. Davis, 4 Ill.Dec. 652, 360 N.E.2d 765, 66 Ill.2d 85 (1976), the leading Illinois case on the tort of intentional infliction of emotional distress, the Illinois Supreme Court adopted the position of the Restatement (Second) of Torts and described the conduct of which the defendant must be guilty before liability attaches:
"First, the conduct must be extreme and outrageous. The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or trivialities. "It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by "malice,' or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency * * *.' " Davis, supra 4 Ill.Dec. at 654, 360 N.E.2d at 767.
The court also described the kind of injury the plaintiff must suffer before he can recover under this theory:
"Second, infliction of emotional distress alone is not sufficient to give rise to a cause of action. The emotional distress must be severe. Although fright, horror, grief, shame, humiliation, worry, etc. may fall within the ambit of the term "emotional distress,' these mental conditions alone are not actionable. "The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it. The intensity and the duration of the distress are factors to be considered in determining its severity.' " Id. 4 Ill.Dec. at 654, 360 N.E.2d at 767.
Reckless conduct supporting the tort is conduct the defendant knows or is substantially certain will result in severe emotional distress. Id. 4 Ill.Dec. at 654, 360 N.E.2d at 767.
In Davis, the court refused to find liability despite conduct by the creditor significantly more egregious than that in the instant case. There, the creditor: (1) called the debtor several times a week, frequently more than once a day; (2) visited the home one or more times a week; (3) called the plaintiff at a hospital while the plaintiff was visiting her daughter who was ill with a brain tumor; (4) called the plaintiff again at the hospital, despite admonitions not to do so; (5) induced the plaintiff to write a check with the promise that it would not be presented for payment, and then called an acquaintance of the plaintiff and informed her the plaintiff was writing bad checks, and; (6) visited the plaintiff's home, and after being told that the plaintiff could not pay, used the plaintiff's phone to call in an inventory of the plaintiff's household goods, failing or refusing to leave until the plaintiff's son arrived. Here, by comparison, appellee never sent agents to the Bast home, never called after 8:00 P.M., did not contact any employer, relative or friend of the Basts, and honored the request not to call again at the hospital. In his deposition, appellant admits that appellee's agents did not swear at him, nor did they threaten to sue him.
Appellant argues that Davis, is distinguishable from the instant case for the reason that, in Davis the creditor was harassing the debtor, not the parents or some other relatives of the debtor, as in the instant case. He contends the conduct is more extreme and outrageous because the Basts did not owe the debt.
We cannot agree with appellant's reading of Davis. It is true that the court there recognized that "the extreme and outrageous character of the conduct may arise from an abuse of a position or a relation with another which gives the actor actual or apparent authority over the other or power to affect his interests" and that the debtor-creditor relationship fits within that interpretation of the rule. Id. 4 Ill.Dec. at 654, 360 N.E.2d at 767. However, appellant admits that this relationship does not exist in the instant case. In fact, he argues that his son is completely emancipated and that he does not even know his son's whereabouts. Consequently, there are no special circumstances nor relationships existing between appellant and appellee making what is admittedly obnoxious conduct rise to a level sufficient to make out the tort.
While the conduct of appellee's agents might have been bothersome and their agents' conduct insulting, the alleged conduct in no way approaches the "extreme and outrageous" behavior required to make out the tort of intentional infliction of emotional distress under Illinois law. Moreover, the distress inflicted, as revealed by appellant's deposition and his answers to interrogatories, was not of a type that "no reasonable man could be expected to endure it." Even taking as true the allegations that appellee's agents were aware of Harriet Bast's illness, we must hold that the conduct alleged does not make out the tort. This is not to say that we approve of the action of appellee. In fact, if appellee's actions had been performed by a debt collection agency, they might well have violated the Illinois Collection Agency Act, Ill.Rev.Stat. 1977, ch. 111, par. 2001 et seq., (See Sherman v. Field Clinic, 29 Ill.Dec. 597, 392 N.E.2d 154, 74 Ill.App.3d 21 (1979)), and if performed by a debt collector today, might violate the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. Nevertheless, appellant failed to make out a cause of action under Illinois law.
While there has been some suggestion that the conduct alleged might state a claim for the tort of unreasonable invasion of privacy, appellant did not argue that theory in his brief and explicitly stated at oral argument that neither the complaint nor the appeal was based on that theory. Consequently, we do not reach that question.
It appearing that there is no genuine issue as to any material fact and that appellee is entitled to a judgment as a matter of law, the judgment of the ...