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Moore v. Novark9/28/1995
eputies made false reports in their statements, it is reasonable to infer that the deputies collaborated to falsely accuse Novark of violating a prisoner's civil rights. This conclusion, which is supported by the evidence, constitutes more than mere suspicion and is not outweighed by contrary evidence. We hold there is legally and factually sufficient evidence to support the jury's finding of conspiracy. We overrule the deputies' seventh point of error.
2. Intentional Infliction of Emotional Distress
In their ninth point of error, the deputies contest the sufficiency of the evidence to support the jury's finding on intentional infliction of emotional distress. The jury was properly instructed on the elements of this tort as set forth in Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993). Based on the evidence and its assessment of the credibility of the witnesses, the jury found that the deputies intentionally or recklessly, through their extreme and outrageous conduct, inflicted severe emotional distress on Novark.
We do not question whether the distress caused by a federal criminal indictment, trial, and the threat of imprisonment may be severe enough to support liability. Novark testified that at the time he learned of the federal indictment, his high blood pressure was aggravated and he was hospitalized for three days for hypertension, it was very traumatic to be unable to find employment while the trial was pending, he could not sleep or concentrate on projects, and friends and family "turned their backs" on him.
In evaluating the tort of intentional infliction of emotional distress, however, we must also focus on the nature of the defendants' conduct to determine if the strict requirements of the tort are satisfied. Twyman, 855 S.W.2d at 622 ("the rigorous legal standards of the Restatement formulation of intentional infliction of emotional distress help assure a meaningful delineation between inadvertence and intentionally or recklessly outrageous misconduct"). As we noted earlier, liability should be 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, and to be regarded as atrocious, and utterly intolerable in a civilized community." Id. at 621 (quoting RESTATEMENT (SECOND) Section(s) 46 cmt. d). See, e.g, Twyman, 855 S.W.2d at 620 n.1 (husband coerced his wife to engage in sadomasochistic bondage activities, knowing she feared such activities because she had been raped at knife-point before marriage).
Behavior is not outrageous simply because it is tortious. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994). See, e.g., Diamond Shamrock Refining and Marketing Co. v. Mendez, 844 S.W.2d 198, 202 (Tex. 1992) (while employer's conduct in allegedly depicting discharged employee in the community as a thief was not sufficiently outrageous to support a claim of intentional infliction of emotional distress, false light invasion of privacy was not precluded); Carr v. Mobile Video Tapes, Inc., 893 S.W.2d 613, 620-21 (Tex. App. -- Corpus Christi 1994, no writ) (humane society investigator's conduct in filing complaint for cruelty to animals which was later dismissed was not outrageous for purposes of intentional infliction of emotional distress claim, but claims of defamation, invasion of privacy and trespass were viable).
Each case alleging intentional infliction of emotional distress must be decided on its own facts, as interpreted and weighed by the fact finder. LaCoure v. LaCoure, 820 S.W.2d 228, 233 (Tex. App. -- El Paso 1991, writ denied); see also Motsenbocker v. Potts, 863 S.W.2d 126, 133-34 (Tex. App. -- Dallas 1993, no writ) (upholding jury
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