Page County Appliance Center, Inc. v. Honeywell, Inc., No. 83-182

CourtIowa Supreme Court
Writing for the CourtConsidered by REYNOLDSON; REYNOLDSON
Citation347 N.W.2d 171
Docket NumberNo. 83-182
Decision Date14 March 1984
PartiesPAGE COUNTY APPLIANCE CENTER, INC., Appellee, v. HONEYWELL, INC., and ITT Electronic Travel Services, Inc., Appellants, and Kay Crowell d/b/a Central Travel Service, Defendant. ITT ELECTRONIC TRAVEL SERVICES, INC., Appellee, v. HONEYWELL, INC., and Honeywell Information Systems, Inc., A Wholly Owned Subsidiary of Honeywell, Inc., Appellants.

Page 171

347 N.W.2d 171
45 A.L.R.4th 1191
PAGE COUNTY APPLIANCE CENTER, INC., Appellee,
v.
HONEYWELL, INC., and ITT Electronic Travel Services, Inc., Appellants,
and Kay Crowell d/b/a Central Travel Service, Defendant.
ITT ELECTRONIC TRAVEL SERVICES, INC., Appellee,
v.
HONEYWELL, INC., and Honeywell Information Systems, Inc., A Wholly Owned Subsidiary of Honeywell, Inc., Appellants.
No. 83-182.
Supreme Court of Iowa.
March 14, 1984.

Page 173

Curtis Hewett of Smith, Peterson, Beckman & Willson, Council Bluffs, for appellant ITT Electronic Travel Services, Inc.

Gerald P. Laughlin, Michael G. Lessmann and Kirk S. Blecha of Baird, Holm, McEachen, Pedersen, Hamann & Strasheim and Ron M. Bitting of Turner, Jones, Bitting & O'Meara, Clarinda, and Terry J. Grennan of Cassem, Tierney, Adams, Gotch & Douglas, Omaha, Neb., for appellant Honeywell, Inc.

Jon H. Johnson and Robert F. Leonard of Leonard & Johnson, P.C., Sidney, for appellee Page County Appliance Center, Inc.

Considered by REYNOLDSON, C.J., and UHLENHOPP, HARRIS, McCORMICK, and WOLLE, JJ.

REYNOLDSON, Chief Justice.

Plaintiff Page County Appliance Center, Inc. (Appliance Center), sued Honeywell, Inc. (Honeywell), and ITT Electronic Travel Services, Inc. (ITT), for nuisance and tortious interference with business relations. Defendants appeal from judgment entered on jury verdicts awarding compensatory and punitive damages. Honeywell appeals from a judgment rendered against it on ITT's cross-claim for indemnification. We reverse and remand for new trial.

Appliance Center has owned and operated an appliance store in Shenandoah, Iowa, since 1953. In 1975 the store was acquired from his father by John Pearson, who sold televisions, stereos, and a variety of appliances. Before 1980 Pearson had no reception trouble with his display televisions. In early January 1980, however, ITT placed one of its computers with Central Travel

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Service in Shenandoah as part of a nationwide plan to lease computers to retail travel agents. Central Travel was separated by only one other business from the Appliance Center. This ITT computer was manufactured, installed, and maintained by Honeywell.

Thereafter many of Pearson's customers told him his display television pictures were bad; on two of the three channels available in Shenandoah he had a difficult time "getting a picture that was fit to watch." After unsuccessfully attempting several remedial measures, in late January 1980, he finally traced the interference to the operations of Central Travel's computer. Both defendants concede Pearson's problems were caused by radiation leaking from the Honeywell computer.

Pearson discussed the problem with Kay Crowell, owner of Central Travel. She placed a call to ITT's president in New York. Although he was unavailable, ITT personnel apparently notified Honeywell. ITT's only contact with Pearson was through a telephone call some ten months later. At that time Pearson told ITT's sales representative that Honeywell was working on the problem; he made no effort to follow up on ITT's interest in the problem.

Honeywell indeed was working to correct the situation, and had been since February 1980. Honeywell technicians made repeated trips to make various unsuccessful adjustments to the computer. They found the computer was operating properly; the interference-causing radiation was a design and not a service problem. Pearson then telephoned Armando Benitez, the technicians' supervisor. Pearson testified Benitez told him Honeywell was "way over budget" on the Central Travel computer and that "if you don't like it, you can move."

Nonetheless, in early fall of 1980 Honeywell sent out Phil Brzozoski, one of its engineers from Boston. According to Pearson, when he asked Brzozoski why it had taken him so long to come, the latter replied he would not have been there at all had Pearson not instituted suit; that was the way big business worked. Kay Crowell, admittedly Pearson's friend, testified Brzozoski told her the delay was "good business." Pearson in fact did not bring suit until December 22, 1980, although his counsel sent demand letters to Honeywell and ITT in October 1980. At trial a top Honeywell employee testified it was not company policy to await lawsuits before taking remedial action.

The Honeywell engineers effected a 70 percent improvement in the television reception by certain modifications of the computer in the fall of 1980. Pearson, still dissatisfied, started this action in December. While the suit was pending, Honeywell further modified the computer, finally alleviating Pearson's problems in May 1982.

At trial a Honeywell senior staff engineer admitted the technology to manufacture a non-radiation-emitting computer was available long before it developed this computer, but opined it would have been neither cost nor consumer effective to utilize that technology. He testified Honeywell believed it had corrected Pearson's problems in the fall of 1980.

The Appliance Center's case against Honeywell and ITT finally was submitted to the jury on the theories of nuisance and tortious interference with prospective business relations. It asked for only injunctive relief against Kay Crowell, doing business as Central Travel Service. The latter's motion for summary judgment was sustained. The jury found for the Appliance Center against the remaining defendants on both theories, and further found the Appliance Center should recover $71,000 in compensatory damages and $150,000 in exemplary damages. Following jury trial, Kay Crowell's cross-claim against Honeywell and ITT's cross-claim against Honeywell were submitted to the court. Crowell's cross-claim was dismissed. She did not appeal and is not involved in this proceeding. Trial court awarded ITT full indemnity against Honeywell, in the amount of $221,000, together with attorney fees and costs.

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Both defendants appeal from the judgment in favor of Appliance Center; Honeywell additionally appeals from the judgment awarding ITT indemnity.

Defendants raise a number of claimed trial court errors, discussed in the divisions that follow.

I. Should Trial Court Have Granted Defendants' Motions for Directed Verdict and for Judgment Notwithstanding the Verdict on the Nuisance Count?

A. ITT argues trial court should have granted its motions for directed verdict because the Appliance Center property was being used for a purpose peculiarly sensitive to computer emissions, and because plaintiff did not prove ITT substantially participated in the creation or maintenance of the alleged nuisance.

Certain general principles govern our review here. In considering the propriety of a motion for directed verdict the court views the evidence in the light most favorable to the party against whom the motion is made. Iowa R.App.P. 14(f)(2). We examine the evidence in the same light to determine whether there was a jury issue. Lewis v. Baker, 251 Iowa 1173, 1176, 104 N.W.2d 575, 577 (1960).

Our analysis of ITT's first contention must start with Iowa Code section 657.1, which in relevant part states:

Whatever is ... an obstruction to the free use of property, so as essentially to interfere with the ... enjoyment of ... property, is a nuisance, and a civil action by ordinary proceedings may be brought to enjoin and abate the same and to recover damages sustained on account thereof.

Narrowing our focus, we note the Appliance Center is alleging a "private nuisance," that is, an actionable interference with a person's interest in the private use and enjoyment of his or her property. Larsen v. McDonald, 212 N.W.2d 505, 508 (Iowa 1973). It also is apparent that if Central Travel's computer emissions constitute a nuisance it is a "nuisance per accidens, or in fact"--a lawful activity conducted in such a manner as to be a nuisance. Pauly v. Montgomery, 209 Iowa 699, 702, 228 N.W. 648, 650 (1930).

Principles governing our consideration of nuisance claims are well established. One's use of property should not unreasonably interfere with or disturb a neighbor's comfortable and reasonable use and enjoyment of his or her estate. A fair test of whether the operation of a lawful trade or industry constitutes a nuisance is the reasonableness of conducting it in the manner, at the place, and under the circumstances shown by the evidence. Each case turns on its own facts and ordinarily the ultimate issue is one of fact, not law. Patz v. Farmegg Products, Inc., 196 N.W.2d 557, 560-61 (Iowa 1972); Bates v. Quality Ready-Mix Co., 261 Iowa 696, 704, 154 N.W.2d 852, 857 (1968). The existence of a nuisance is not affected by the intention of its creator not to injure anyone. Patz, 196 N.W.2d at 561. Priority of occupation and location--"who was there first"--is a circumstance of considerable weight. Stockdale v. Agrico Chemical Co., 340 F.Supp. 244, 252 (N.D.Iowa 1972); Helmkamp v. Clark Ready Mix Co., 214 N.W.2d 126, 129 (Iowa 1974); Kriener v. Turkey Valley Community School District, 212 N.W.2d 526, 530 (Iowa 1973).

When the alleged nuisance is claimed to be offensive to the person, courts apply the standard of "normal persons in a particular locality" to measure the existence of a nuisance. Patz, 196 N.W.2d at 561; see also Kellerhals v. Kallenberger, 251 Iowa 974, 980, 103 N.W.2d 691, 694 (1960). This normalcy standard also is applied where the use of property is claimed to be affected. "The plaintiff cannot, by devoting his own land to an unusually sensitive use, ... make a nuisance out of conduct of the adjoining defendant which would otherwise be harmless." W. Prosser, The Law of Torts § 87, at 579 (4th ed. 1971).

In the case before us, ITT asserts the Appliance Center's display televisions constituted a hypersensitive use of its

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premises as a matter of law, and equates this situation to cases involving light thrown on outdoor theater screens in which light-throwing defendants have carried the day. See Belmar Drive-In Theatre...

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36 practice notes
  • Williams Pipe Line Co. v. Bayer Corp., Civil No. 4-95-CV-20158.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa
    • April 14, 1997
    ...or disturb a neighbor's comfortable and reasonable use and enjoyment of his or her estate." Page Co. Appliance Ctr. v. Honeywell, Inc., 347 N.W.2d 171, 175 (Iowa 1984). Whether a party has created and maintained a nuisance is usually a factual question. Weinhold, 555 N.W.2d at Whether opera......
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    ...110, 114 (Iowa 1991); Nesler v. Fisher & Co., Inc., 452 N.W.2d 191, 199 (Iowa 1990); Page County Appliance Ctr., Inc. v. Honeywell, Inc., 347 N.W.2d 171, 177 (Iowa 1984); Harsha v. State Sav. Bank, 346 N.W.2d 791, 799 (Iowa 1984); First Medical, Inc. v. Embassy Manor Care Ctr., Inc., 483 N.......
  • Williams Pipe Line Co. v. Bayer Corp., Civil No. 4-95-CV-20158.
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    • United States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa
    • April 14, 1997
    ...or disturb a neighbor's comfortable and reasonable use and enjoyment of his or her estate." Page Co. Appliance Ctr. v. Honeywell, Inc., 347 N.W.2d 171, 175 (Iowa 1984). Whether a party has created and maintained a nuisance is usually a factual question. Weinhold, 555 N.W.2d at Whether opera......
  • In re Starlink Corn Products Liability Litigation, MDL No. 1403.
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    ...14 (edits in original, citations omitted). Most analogous to the case at bar, in Page County Appliance Center, Inc. v. Honeywell, Inc., 347 N.W.2d 171, 177 (Iowa 1984), the Iowa Supreme Court explicitly rejected an argument identical to the one raised by defendants here. Plaintiff there all......
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