Jeppsen v. Jensen

• Decision Date: 08 February 1916
• Docket Number: 2847
• Citation: 155 P. 429,47 Utah 536
• Court: Utah Supreme Court
• Parties: JEPPSEN v. JENSEN

155 P. 429

47 Utah 536

JEPPSEN v. JENSEN

No. 2847

Supreme Court of Utah

February 8, 1916

Appeal from District Court, First District; Hon. J. D. Call, Judge.

Action by Cleopha Jeppsen against Anton Jensen.

Judgment for defendant. Plaintiff appeals.

REVERSED AND REMANDED with directions to grant new trial.

Johnson & Johnson, for appellant.

George Halverson and B. C. Call, for respondent.

FRICK J. STRAUP, C. J., and LOOFBOUROW, District Judge, concur.

OPINION

FRICK, J.

The plaintiff sued the defendant to recover damages for alleged injuries to her health and nervous system which she alleged were sustained through defendant's willful, wanton, and unlawful acts. In view that the complaint is assailed as insufficient in substance, we shall set it forth at large. It reads as follows:

"Plaintiff complains and alleges: (1) That she now is and was at all the times herein alleged, a married woman, residing with her husband, Reuben Jeppsen, and three children, in Mantua, Box Elder County, Utah. (2) That in the night-time of the 1st day of October, 1914, at about the hour of eight-thirty of the evening of said day, the said defendant came to the home of this plaintiff, and knocked at the door, and when plaintiff opened the same, said defendant entered the room in which she, her said husband and children were, and then and there willfully, wantonly, maliciously, and without regard to the rights of this plaintiff began and did curse and abuse plaintiff's husband, and then and there drew a pistol from his pocket and pointed the same over and across plaintiff's shoulder, and threatened to shoot and kill her said husband; that said defendant remained in said room for a long time, to wit, about fifteen minutes, though often begged and requested by this plaintiff to leave the same, and during all of said time, in a loud and threatening voice, and with vile and abusive language, threatened to shoot and kill her said husband, and after leaving said room said defendant returned and was prevented from re-entering the same only by this plaintiff closing and fastening the doors of said room; that plaintiff about six weeks before had been confined in child-birth, and was still, as a result thereof, in delicate health, all of which defendant well knew. (3) That by reason of said willful, wanton, and malicious conduct of said defendant, this plaintiff became greatly frightened and terrified, so that at the time said defendant returned to re-enter said room, as hereinbefore alleged, she fell in a swoon or faint, and was attacked by a nervous chill, and her nervous system so gave way and she became prostrated so that she was confined to her bed for the greater part of two days, and ever since said time she has been in a highly nervous state and condition, so that she does not sleep well, and is easily disturbed, and frightened by any unusual noise or occurrence. (4) That by reason of the said willful, wanton, and malicious language, acts, and conduct of said defendant this plaintiff has been damaged in the sum of $ 10,000."

Judgment is prayed for the amount of the damages alleged. The defendant answered the complaint, admitting that plaintiff is a married woman, etc., and that he called at her home on the night stated, and denied all other allegations of the complaint. When the case came on for trial, the plaintiff produced evidence that fully supported every material allegation of the complaint. Indeed, the testimony of the plaintiff and that of her husband, given on direct examination, respecting defendant's conduct, threats, and abusive language, is even stronger than the allegations of the complaint. At the conclusion of plaintiff's evidence defendant moved for a nonsuit, the grounds of which, stating them in the language of his counsel, are as follows:

"(1) That no actionable damages were shown; (2) that the complaint fails to state a cause of action; and (3) that the evidence failed to show any cause of action against the defendant."

The court sustained the motion, and plaintiff assigns the ruling as error. In view that we have been forced to find that all of the material allegations of the complaint are amply supported by competent evidence, the first question to be determined is whether the complaint states a cause of action.

Defendant's counsel contend that, inasmuch as the alleged injuries were caused from terror or fright alone, without bodily contact, and that the alleged threats or assault were neither intended to be nor were directed against the plaintiff personally, therefore the case stated in the complaint comes within the rule that no recovery is permitted where the alleged injuries are caused alone by terror or fright. Upon the other hand, plaintiff's counsel contend that this case falls within the rule of willful or wanton and intentional wrongdoing committed by the wrongdoer. Under such circumstances counsel contend that the authorities permit a recovery, although the alleged injuries or diseases complained of are the result of fright or terror alone. In the case of Brownback v. Frailey, 78 Ill.App. 262, the allegations of the complaint were substantially the same as in the case at bar. The only difference between the complaint in that case and one before us is, that the alleged assault and threats in that case were directed against the plaintiff, although her husband, who was absent, seems to have been the inciting cause thereof, the same as here. We can see no legal distinction from the standpoint of civil redress between making an assault upon the plaintiff and in making one in her presence upon her husband. The case of Hill v. Kimball, 76 Tex. 210, 13 S.W. 59, 7 L. R. A. 618, is very much in point upon that precise question. In that case the assault was not made upon the plaintiff, a woman, but upon others in her presence, and the court there did not discover any reason why she should not recover. In the following cases recoveries were held authorized under facts and circumstances which, in our judgment, cannot legally be distinguished from those in the case at bar, namely: Preiser v. Wielandt, 48 A.D. 569, 62 N.Y.S. 890; May v. Western U. Teleg. Co., 157 N.C. 416, 72 S.E. 1059, 37 L. R. A. (N. S.) 912; Harless v. Southwestern M. El. Ry. Co., 123 Mo.App. 22, 99 S.W. 793; Dunn v. Western U. Teleg. Co., 2 Ga.App. 845, 59 S.E. 189; Brownback v. Frailey, supra; Williams v. Underhill, 63 A.D. 223, 71 N.Y.S. 291; Watson v. Dilts, 116 Iowa 249, 89 N.W. 1068, 57 L. R. A. 559, 93 Am. St. Rep. 239; Hill v. Kimball, supra; and Engle v. Simmons, 148 Ala. 92, 41 So. 1023, 7 L. R. A. (N. S.) 96, 121 Am. St. Rep. 59, 12 Ann. Cas. 740. Counsel for plaintiff have also cited several cases where recoveries are permitted in what are called negligence cases. The negligence in those cases was so gross, however, that the acts may well have been characterized as wanton and willful. We, however, do not refer to those cases. We do not deem it necessary to review the foregoing cases. We shall, however, make a few excerpts from the opinions to show the principle upon which the decisions are based. In Preiser v. Wielandt, supra, it is squarely held that the general rule that no recovery is permitted for mere fright "does not include cases of wanton wrongs nor apply to acts of trespassers." In Harless v. Southwestern M. El. Ry. Co., the court, in the course of the opinion, said:

"The instructions for plaintiff permitted a recovery for fright, mental suffering and anguish. The defendant assails the propriety of such instructions on the ground that, where there is no bodily hurt, mental anguish and fright are not elements of damage. That is the law in cases of mere negligence (citing cases). But in cases where the wrongful act is occasioned by offensive, insulting, and humiliating conduct, or where the act itself is willful and inhuman, such elements enter into the damages which may be recovered" (citing cases).

In Dunn v. Western U. Teleg. Co., supra, the Supreme Court of Georgia states the rule in the headnote thus:

"While mental suffering, unaccompanied by injury to purse or person, affords no basis for an action predicated upon wrongful acts, merely negligent, yet such damages may be recovered in those cases where the plaintiff has suffered at the hands of the defendant a wanton, voluntary, or intentional wrong the natural result of which is the causation of mental suffering and wounded feelings."

In Williams v. Underhill it is said:

"A recovery for mental injuries and suffering alone is not precluded in cases of willful tort."

To that effect is the decision in the Williams Case.

The case of Watson...