Lasalle Extension University v. Fogarty

• Decision Date: 16 March 1934
• Docket Number: 28753
• Citation: 253 N.W. 424,126 Neb. 457
• Parties: LASALLE EXTENSION UNIVERSITY, APPELLANT, v. JAMES FOGARTY, APPELLEE
• Court: Nebraska Supreme Court

253 N.W. 424

126 Neb. 457

LASALLE EXTENSION UNIVERSITY, APPELLANT, v. JAMES FOGARTY, APPELLEE

No. 28753

Supreme Court of Nebraska

March 16, 1934

APPEAL from the district court for Douglas county: JAMES M FITZGERALD, JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

Threats to sue and to appeal to one's employer, made willfully and intentionally, for the purpose of producing mental pain and anguish, in attempting to collect a debt, held to authorize recovery for mental pain and suffering, though no physical injury results.

Appeal from District Court, Douglas County; Fitzgerald, Judge.

Action by the La Salle Extension University, Chicago, Ill., against James Fogarty, wherein defendant filed cross-petition. Judgment for defendant on the cross-petition, and plaintiff appeals.

Affirmed.

Adolph A. Carl and M. L. McBride, for appellant.

J. W Marer and Eugene B. McArdle, contra.

Heard before GOOD, EBERLY and DAY, JJ., and BLACKLEDGE and RYAN, District Judges.

OPINION

RYAN, District Judge.

This action was commenced in municipal court of the city of Omaha and was tried on appeal in the district court for Douglas county upon the same pleadings by stipulation. The action is upon a promissory note, alleged to have been signed by the defendant, James Fogarty, for a study course in the school of the appellant, the said note being given for tuition and scholarship. The answer of the defendant denied the execution and delivery of the note and application for scholarship in the correspondence school of the plaintiff, admitted that the defendant did sign a purported application and promissory note, but alleged that the same were wholly null and void by reason of sections 62-1708 and 62-1710, Comp. St. 1929, because said alleged tuition note did not have printed prominently and legibly in bold type across the face thereof and above the signature thereon the words "negotiable note given for tuition." Defendant included in his answer a cross-petition for damages in the sum of $ 500, claimed to have been suffered by him on account of a series of damaging, threatening, harassing and malicious letters, notices and warnings, which defendant alleges plaintiff wrote and caused to be mailed to the defendant for the purpose of unlawfully extorting from the defendant the money claimed due in this suit; and defendant alleges that the acts of the plaintiff were done unlawfully, maliciously and in an attempt to extort payment of money from the defendant, and at the time of making said threats plaintiff knew, or should have known, that the note could not legally be collected, and said acts were done for the purpose of harassing, annoying, distressing and worrying the defendant into the payment of the same. Defendant also alleged that the plaintiff wrote letters to his employer and to his neighbors for the same purpose and caused the defendant to seek legal advice for his protection, and that by reason of the same he was humiliated and unable to sleep at night and was unable to do his work properly, and that it caused him to become nervous, and that he suffered much pain and mental anguish on account thereof.

Plaintiff was unable to prove the execution and delivery of the note and at the close of its evidence the trial court sustained the motion of the defendant to dismiss the petition of the plaintiff for the reason that there was no evidence before the court to support its claim. The case proceeded to trial upon the cross-petition of the defendant, without objection. The record shows that the defendant was a man of about thirty-five years of age, employed as a meter deposit clerk at the Nebraska Power Company; that about July 2, 1928, a representative of the plaintiff tried to interest him in one of the plaintiff's correspondence courses; that he was about to go on his vacation and he told the representative that he could not take the course because he had no money to pay down on it at that time. The representative said to him: "Well I'll tell you, * * * if you will take and just give me $ 3 on the application, when you return, if you decide that you want to take the course, you can pay me the other $ 7, and if you don't want to take the course, I will refund your $ 3, and your application will not be sent in until you decide one way or the other." The $ 3 was paid and an application signed. Defendant was absent about two weeks on his vacation. He testified that he did not see the agent of the plaintiff again, and that shortly thereafter he received a set of books from the plaintiff and soon he began receiving collection letters; that in October he wrote plaintiff a letter, explaining his dealings with their agent and stating that he did not consider he had made any contract with them. The collection letters from the plaintiff continued. He had written plaintiff, he thought, at least two letters. These letters are admitted as having been received by plaintiff, but appear to have been destroyed. The plaintiff continued with its course of collection letters. About forty of them are contained in the bill of exceptions. These letters vary from moderate reminders of an unpaid balance to accusations of dishonesty and moral turpitude and threats, and were such as were well calculated to coerce the defendant into payment. Some of them were in lurid envelopes, and in one both the letterhead and envelope bore a facsimile of lightning about to strike someone. One of them read as follows: "Honest men pay their debts. Dishonest men do not pay their debts. You owe us $ 140. Classify yourself." One of them was a garnishment notice with the name of his employer in the heading of the petition. One was on deep red paper and labeled: "Final notice before legal action." The plaintiff also wrote his employer, the Nebraska Power Company, as well as his neighbors living on either side of him. Defendant testified that the receipt of these letters caused him a great deal of worry and mental pain and anguish; that he worried a great deal that he might lose his job. The chief clerk at the Nebraska Power Company, who was the defendant's superior, testified as to the receipt of a letter written to him, which he produced and which was received in evidence. This letter purported to set out the transaction between the parties and to threaten garnishment of...