Bethards v. Shivvers, Inc.
| Decision Date | 22 August 1984 |
| Docket Number | 2-69492,Nos. 2-68843,s. 2-68843 |
| Citation | 355 N.W.2d 39 |
| Parties | Harry BETHARDS and M. Elouise Bethards, Appellees, v. SHIVVERS, INCORPORATED, f/k/a Shivvers Enterprises, Incorporated, Charles Shivvers, and Douglas Shivvers, Appellants. |
| Court | Iowa Supreme Court |
Stephen P. Meyer, Chariton, and Richard G. Blane II of Hansen, McClintock & Riley, Des Moines, for appellants.
Frank G. Wieslander, Altoona, and Samuel S. Zelden, Des Moines, for appellees.
Considered en banc.
The central question in this appeal is whether the evidence of the tort of intentional infliction of severe emotional distress is sufficient for submission to a jury. We view the evidence in the light most favorable to the plaintiffs, who prevailed at trial. Dickerson v. Young, 332 N.W.2d 93, 96 (Iowa 1983).
Harry Bethards and M. Elouise Bethards, spouses, own a farm west of Centerville, Iowa. During the winter of 1978-1979, the Bethards gave permission to a neighbor, Ernest Houston, to haul 1500-pound bales of hay from his land across a field in the southeast portion of the Bethards' farm on condition that their field only be so used as long as the ground remained frozen. The only other access to the bales was a two-mile trek over rough terrain that was nearly impassable because of snow. The access across the Bethards' farm was flat and only a quarter-mile in length from the bales to a county road. Harry Bethards plowed a path through the snow for Houston to use.
In January 1979, Houston sold approximately eighty bales of the hay to Douglas Shivvers, who managed several farms owned by his father, Charles Shivvers. Charles was also president, majority stockholder, and manager of Shivvers, Incorporated (corporation), which at the time in question was known as Shivvers Enterprises, Incorporated, a manufacturer of grain drying equipment. Houston informed Douglas that the field in question could only be used as long as the ground remained frozen.
On March 1, 1979, some fifteen bales of hay were moved from Houston's land across the Bethards' field. The ground was still frozen, and the Bethards made no complaint.
On March 19, 1979, Jack Hyde was working with sheet metal at the corporation, where he was employed. As happened from time to time, Douglas approached Hyde and requested that he perform farm work. Hyde, based on standing instructions from Charles Shivvers that he help with farm work whenever Douglas so requested, put aside his sheet metal project and proceeded to the Bethards' property. He used a Steiger tractor to transport some twenty bales from Houston's property to a gate at the southeast corner of the Bethards' field. This took him across the Bethards' land.
The ground at this time was no longer frozen and the Steiger cut deep ruts in the Bethards' field. Hyde testified that as he removed the hay he drove in one rut as many times as possible. He cut three or four sets of ruts that ranged in depth from six to twenty-four inches. Many ruts quickly filled with water. The damaged ground included something less than three acres of crop land and hay field. Evidence put the resulting crop loss at $718.88 and damage to the field at $310.13 for repair, for a total loss of $1129.01. The Bethards were unaware of the activity in their field until so informed by a neighbor. Harry Bethards then went to the field and asked Hyde to leave. Hyde did so, without the tractor or the remaining bales.
The temperature on March 19 was approximately forty degrees. Hyde said he knew when he left the corporation that day the ground was likely to be soft. He testified that after arriving at the Bethards' field he could see the ground was not frozen, but that he did not know whether or not it would support the Steiger. He did say "[a]nyone that's ever operated a tractor in Iowa in March and April should know" what damage would be done to land in the same condition as the Bethards' field.
Douglas did not go to the Bethards' field that day. He testified he realized some damage would be done to the field although he did not know the extent the damage would be, but he needed the hay. The next day the Shivvers went to the field to retrieve the tractor.
One evening in April 1979, Douglas approached the Bethards at their home with a settlement proposal. He offered to disc the damaged land if the Bethards would seed and fertilize it. Harry Bethards rejected the offer and said he wanted $3000. Each man deemed the offer of the other to be unreasonable. During an ensuing argument Douglas called the Bethards' property an "old junk farm."
On May 1, 1979, the Shivvers again returned to the Bethards' land. They removed a chain that the Bethards had strung across the gateway, and loaded the bales that had not been removed on March 19. Further damage was caused to the Bethards' field, though not as severe as the damage on March 19. While the Shivvers were removing their hay on May 1, Harry Bethards spotted them and called the sheriff. The sheriff arrested the Shivvers and their employees and charged them with third-degree criminal mischief.
The Bethards testified that as a result of the entire incident they were placed under severe emotional strain. Harry Bethards stated that every time the incident came to mind he became "shook up, mad, and nervous, and muscle-bound." Several witnesses said Bethards would get quite mad and his muscles would "quiver." Elouise Bethards said she was upset because she now thought people believed she owned a "junk farm." She also worried a great deal about her husband. She testified the couple spent sleepless nights because of what the Shivvers had done, and that she missed four and possibly five days of work in consequence. She described her condition thus:
Q. You indicated your stomach got tight, a little upset? A. Yes, about like it is now.
Q. I take it you have never got so sick that you had to go to the restroom? A. No, I felt that way a few times.
A social acquaintance said Harry Bethards reacted "just like anybody else when they get mad," and that the Bethards never missed a social event because of their distress. Neither of the Bethards sought the aid of a physician.
The case was submitted to the jury on two counts: trespass, and intentional infliction of severe emotional distress. The jury found for the Bethards and against the corporation and Charles and Douglas Shivvers on both counts and awarded the following damages:
To Harry Bethards:
The trial court held that the damages were duplicative, set aside the awards for trespass, and entered judgment for the Bethards for the actual and punitive damages for intentional infliction of severe emotional distress. The trial court also awarded the Bethards $24,025.67 as attorney fees. The corporation, Charles, and Douglas appealed, and the Bethards cross-appealed. We will speak of the corporation, Charles, and Douglas collectively as the Shivvers.
We have considered all of the arguments of the parties, and we deal with such of them as are dispositive of the issues raised. The parties' other arguments do not change the result.
The Shivvers argue that the record does not contain substantial evidence to support the verdicts for intentional infliction of severe emotional distress, and that the evidence is also insufficient to find the corporation liable for punitive damages for trespass. They further contend that no basis exists for an award of attorney fees.
I. Preservation of error. The Bethards argue on two bases that the Shivvers did not preserve error: the Shivvers failed to move for a directed verdict at the close of all the evidence, and failed to raise the specific questions before the trial court that they now urge.
The Bethards are correct that error in overruling a motion to direct a verdict at the close of the plaintiffs' evidence is waived unless the motion is made again at the close of all the evidence. Thomas Truck and Caster Co. v. Buffalo Caster and Wheel Corp., 210 N.W.2d 532, 535 (Iowa 1973); Siebert v. State Farm Mutual Insurance Co., 251 Iowa 1060, 1064, 103 N.W.2d 757, 759 (1960). The question is whether the rule is applicable under the present record.
At the close of the Bethards' evidence, the Shivvers reserved the right to move for a directed verdict until the close of all the evidence, and the trial court granted permission. At the close of all the evidence, the Shivvers moved for a directed verdict. In a preliminary statement to that motion, their counsel stated:
I believe everything I have to say at this time will be equally applicable to a motion for a directed verdict at the close of all the evidence.
(Emphasis added.) The Bethards contend that by using the words "will be" instead of "to be", the Shivvers made the motion that followed applicable only to the close of plaintiffs' evidence. This contention is overly technical, and we reject it.
The Bethards also claim that the Shivvers presented general issues to the trial court in regard to intentional infliction of severe emotional distress and the liability of the corporation, but...
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