Wambsgans v. Price

Decision Date24 January 1979
Docket NumberNo. 60147,60147
Citation274 N.W.2d 362
PartiesCharles WAMBSGANS, Sr. and Virginia Wambsgans, Appellants, v. James PRICE, Darlene Price, Fred Mahr, Knapp Real Estate Sales, Inc., Des Moines Savings & Loan Association, Inc., Gains Finance Company, Inc., and Iowa Securities Company, Appellees.
CourtIowa Supreme Court

Frank G. Wieslander, P. C., Altoona, for appellants.

Michael E. Runyon, Des Moines, for appellees.

Considered by REYNOLDSON, C. J., and LeGRAND, UHLENHOPP, McCORMICK and McGIVERIN, JJ.

LeGRAND, Justice.

This action was brought by Charles Wambsgans, Sr., and his wife, Virginia, on both breach of contract and tort theories of liability arising out of a listing agreement for the sale of real estate. The case was dismissed as to all the named defendants except Fred Mahr and Knapp Real Estate Sales, Inc., against whom the jury returned a verdict for $43,400.00. Plaintiffs appeal from a trial court order granting a new trial. We affirm.

Defendants' motion for new trial was sustained on two grounds: first, because of an error in Instruction 18 concerning allowance of damages for mental anguish, and secondly, because the verdict is not sustained by sufficient evidence and is "so excessive it appears to have been influenced by passion and prejudice." We do not reach the second ground because we hold defendants are entitled to a new trial on the first.

Before discussing our reasons for reaching this result, we believe a recitation of background facts will be helpful. We set these out as they might have been found by the jury, fully aware that there was evidentiary dispute as to many of them.

Plaintiffs owned the real estate since 1951. In 1959 or 1960, Charles suffered a serious illness which left him unable to carry on his usual occupation. After some rehabilitation, he borrowed money by placing a second mortgage on his home in order to secure funds to set himself up in the upholstery business, a project which apparently did not succeed.

In 1968, plaintiffs rented the house to their son, who lived there until 1971, when plaintiffs decided to sell the property. They listed it with Mahr, who represented Knapp Real Estate Sales, Inc., thus setting in motion the series of events which ultimately brought them here.

Almost from the start, Mahr seems to have been inattentive to this property. It was listed for $12,500.00. After two months he submitted an offer to purchase from James and Darlene Price for $12,000.00, which plaintiffs signed. Although they thought the property was to be sold in its "as is" condition, they soon discovered they would be compelled to spend $1,500.00 for repairs to comply with FHA financing requirements.

When plaintiffs demurred, Mahr told them they "had to do it" and threatened suit if they refused. Plaintiffs undertook some repairs themselves and hired workmen for others. After completing what they thought had been demanded, the results were still not acceptable.

Mahr then suggested the Prices move in. He said the deal was ready to close and plaintiffs would get their money in a few days. He got them to sign a deed "so he could complete the paper work." They also agreed that the Prices could occupy the premises without any agreement for rent pending transfer of title.

The matter dragged on with Mahr forever promising a quick conclusion. Both plaintiffs and the Prices tried unsuccessfully to get Mahr to act. After several months, the Prices soured on the deal and wanted out. It was never completed nor did plaintiffs receive any rent for the time the Prices lived there. In the meantime plaintiffs' financial condition deteriorated. They were unable to complete the necessary repairs. When they couldn't keep up the mortgage payments, the mortgagee started foreclosure proceedings. Only then did plaintiffs hire a lawyer. Eventually foreclosure was completed. Plaintiffs lost their home and were unable to redeem.

In the count based on tort, the petition alleges defendants' conduct during all this time was negligent and "was grossly committed with reckless indifference" to plaintiffs' rights. The petition asked damages for loss of plaintiffs' equity in the property, loss of rental value, and for "mental pain and anguish and loss of enjoyment of life."

The overriding importance of the mental pain and anguish claim is evident from the jury verdict. The instructions limited the jury to maximum awards of $1,625.00 for loss of rent, $1,490.00 for repairs, and $5,804.00 for loss of equity in the real estate.

The only other damage claimed was for mental pain and anguish. If we assume the jury allowed the Maximum on each of the other items, the least it could have awarded for emotional distress was $34,081.00. If the award for the other items was less, that for mental anguish would be more.

The relevant portion of Instruction 18 is as follows:

"If you find that the plaintiffs are not entitled to recover for the alleged Negligence or fraud of the defendant, Fred Mahr, you will make no allowance for damages for mental anguish. The law does not allow recovery for mental anguish in cases involving the breach of normal commercial contracts. If, however, you find that the plaintiffs are entitled to recover for the alleged negligence or alleged fraud of the defendant, Fred Mahr, the amount of the recovery allowed, if any, will include the additional measure.

(d) Such a sum as will fairly and reasonably compensate the plaintiffs for mental anguish as shown by the evidence, if any, from the date of the occurrence to the date of this trial.

"The damages, if any, you find for mental anguish in the past cannot be measured by any exact or mathematical standard, but the amount must rest in the sound discretion of the jury. Such discretion must not be exercised arbitrarily or out of passion or sympathy or prejudice for or against the parties, but must be based on fair, intelligent, dispassionate and impartial consideration of the evidence." (Emphasis added)

Defendants made the following objection to this instruction:

"(As to that portion of Instruction 18 dealing with damages for mental anguish, the defendants objec...

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    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • 15 Agosto 1996
    ...Randa, 325 N.W.2d at 908 (plaintiff was hospitalized with a near nervous breakdown, fear, and shock)); see also Wambsgans v. Price, 274 N.W.2d 362, 366 (Iowa 1976) (although Supreme Court believed evidence of distress from loss of home was sufficient, jury had been improperly instructed, an......
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    • United States District Courts. 8th Circuit. Northern District of Iowa
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    ...N.W.2d 905, 908 (Iowa App.1982) (plaintiff was hospitalized with a near nervous breakdown, fear, and shock)). See also Wambsgans v. Price, 274 N.W.2d 362, 366 (Iowa 1979) (although Supreme Court believed evidence of distress from loss of home was sufficient, jury had been improperly instruc......
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    ...N.W.2d 905, 908 (Iowa App.1982) (plaintiff was hospitalized with a near nervous breakdown, fear, and shock)). See also Wambsgans v. Price, 274 N.W.2d 362, 366 (Iowa 1979) (although Supreme Court believed evidence of distress from loss of home was sufficient, jury had been improperly instruc......
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