Curnett v. Wolf, 48227

• Decision Date: 08 April 1953
• Docket Number: No. 48227,48227
• Citation: 57 N.W.2d 915,244 Iowa 683
• Parties: CURNETT v. WOLF et al. *
• Court: Iowa Supreme Court

Page 915

57 N.W.2d 915

244 Iowa 683

CURNETT v. WOLF et al. ^*

No. 48227.

Supreme Court of Iowa.

April 8, 1953.

Smith & Beck, Mason City, for appellants.

Westfall, Laird & Burington, Mason City, for appellee.

HAYS, Justice.

In November, 1950, plaintiff commenced this action against the four defendants Wolf, as co-partners doing business as the Mason City Broadcasting Company, for wages due under a contract of employment. In March, 1951, by an amendment to his petition, designated as Division II, damages, actual and exemplary, were asked for mental pain and humiliation occasioned by wilful and malicious threats made to him by defendant Louis Wolf in a telephone conversation. A motion by defendants to separate Divisions I and II for purpose of trial was overruled. Motion by defendants Wolf, other than Louis, to dismiss Division II was sustained. Motion by Louis Wolf to withdraw from the jury all claim for exemplary damages was sustained. The jury returned a verdict on Division I, allowing plaintiff the amount asked thereunder. On Division II, a verdict for $7,500 was returned. Motions for judgment notwithstanding the verdict and for a new trial were overruled; and from the judgments entered, all defendants have appealed.

The facts, so far as material here, are as follows. Defendants Wolf, as co-partners, operated Radio Station K I C M, later called K R I B, at Mason City, Iowa. In January, 1950, they employed plaintiff as general manager of the station for one year with an automatic renewal clause in the contract. The salary was $150 per week plus 20% of net profit after taxes. On July 14, 1950, plaintiff was discharged. In October, 1950, he was employed as manager of Radio Station K O O K at Billings, Montana. In November, 1950, this action was commenced to recover wages due under the contract above mentioned. On December 18, 1950, the defendant Louis Wolf called plaintiff at Billings, Montana, by telephone; and the conversation which is the basis for Division II of this action took place.

Generally speaking, this appeal concerns only Division II and presents two questions. (1) Does the record present such facts as creates a cause of action? (2) If so, is the amount awarded by the jury excessive?

I. Has plaintiff made out a cause of action? May one recover for mental pain and suffering which is not accompanied by any physical injury? The entire case is based upon the telephone conversation of December 18, 1950, which telephone call is conceded to have been made by defendant Louis Wolf. Plaintiff's version of the conversation stated somewhat in our own manner, and with Louis Wolf as the questioner, is as follows:

'Q. How are you? A. Fine.

'Q. Are you happy at Billings? A. Yes.

'Q. Do you want to stay out there? A. I would like to and plan to, why?

'Q. Well, if you want to stay, do you know Carter Johnson? A. Yes, he is the Vice President of our company.

'Q. Well, if you want to stay out there, better drop this suit at Mason City. A. Lou, I have no intention of dropping that suit; you owe me the money, and you know it.

'Q. Carter Johnson wrote me a letter and asked me all about you. If you will drop that suit, I will write him a good letter. I will give you until noon tomorrow to make up your mind. A. Don't give me until tomorrow noon, or any other noon. Write the letter this afternoon. I won't drop this suit even if you lose me this job; this job has no connection with my suit in Mason City.'

Defendant's version of this conversation is as follows: After receiving a letter from Carter Johnson, he called Plaintiff at Billings, Montana, and said: 'Al, this is Louis Wolf talking. Just this morning I received a letter from Mr. Johnson of the Montana Broadcasting Company, wanting a letter. He wanted a letter from me regarding your ability. Suppose I didn't answer that letter. Would you be willing to drop the law suit? He said he would have to think about it so I said let me hear from you in a couple of days.'

The record shows that under date of December 14, 1950, Carter Johnson, vice president of the Montana Broadcasting Company, wrote a letter to the Mason City Broadcasting Company relative to plaintiff. It said in part: 'We are not asking for a recommendation, but for a true statement as to your opinion of this man as to both his character and his ability. Any information * * * will be strictly confidential if you wish it to be so * * *.' On December 20, 1950, Louis Wolf replied to the December 14th letter. It said in part: '* * * I wish to state that I am not in a position to give you any satisfactory references as our association with Mr. Curnett was a very unpleasant one. In fact, at the present time he is suing us in the amount of $4,100.00. My personal advice to you would be not to sign a contract with the gentleman as you might have the same unhappy circumstances as we have had. * * * This letter is not confidential.'

Plaintiff, in Division II, alleged that the threats in the telephone conversation were made wantonly and with malice and for the purpose of producing mental pain, anguish, and humiliation; and as a result thereof, he so suffered. As a witness, he stated: 'Q. Mr. Curnett, tell us how it affected you; that is, the conversation you had with Mr. Wolf. A. Well, it is pretty hard to describe it. The next two or three weeks, I just was at a loss as to what to do. I was completely upset. I had gone through a long period * * * trying to secure a manager position; and I thought if this threat was carried out, I would be out of a job again * * *.' He further testified that it caused him worry both day and night. The record shows that his employment with Station K O O K terminated on January 15, 1951, and he saw the letter from Wolf to Johnson on January 17th. It should be noted, however, that the loss of his position with Station K O O K does not enter into the question of damages sustained.

As to the legal question involved, the authorities are not in accord, and appellant cites cases from many states to the effect that no tortious act was committed, under the facts herein; and, hence, no recovery. Among authorities cited is Restatement of the Law of Torts, Vol. I, Chap. II, Section 46, to the effect that 'Conduct, either of act or omission, which is intended or likely to cause mental or emotional disturbance is not tortious. Therefore, it cannot subject the actor to liability no matter what its consequences.' However, Restatement of the Law of Torts, 1948 Supp., Section 46, states: '* * * One who, without privilege to do so, intentionally causes severe emotional distress to another is liable (a) for such emotional distress. * * *' In comment thereon, it is said: 'An intention to cause severe emotional distress exists when the act is done for the purpose of causing the distress or with knowledge on the part of the actor that severe emotional distress is substantially certain to be produced by his conduct. * * * If an act is done with the requisite intention, it is immaterial that the actor is not inspired by any personal hostility to the other. * * * The interest in freedom from severe emotional distress is regarded as of sufficient importance to require others to refrain from conduct intended to invade it. Such conduct is tortious.' See also Magruder--Mental and Emotional Disturbance in the Law of Torts, 49 Harvard L.Rev. 1033; 15 A.L.R.2d 108; Richardson v. Pridmore, 97 Cal.App.2d 124, 217 P.2d 113, 17 A.L.R.2d 929.

The Iowa authorities upon this proposition are not entirely uniform. The early decisions, Lee v. City of Burlington, 113 Iowa 356, 85 N.W. 618; Watson v. Dilts, 116 Iowa 249, 89 N.W. 1068, 57...