Ruple v. Brooks, 14121

• Decision Date: 25 July 1984
• Docket Number: No. 14121,14121
• Citation: 352 N.W.2d 652
• Parties: Ann RUPLE, Plaintiff and Appellee, v. Earl BROOKS, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 652

352 N.W.2d 652

Ann RUPLE, Plaintiff and Appellee, v. Earl BROOKS, Defendant and Appellant.

No. 14121.

Supreme Court of South Dakota.

Argued Nov. 30, 1983.

Decided July 25, 1984.

C.E. Light of Light Law Offices, Yankton, for plaintiff and appellee.

Michael E. Ridgway of Brady, Kabeiseman, Reade, Abbott & Johnson, Yankton, for defendant and appellant.

DUNN, Justice (on reassignment).

This is an appeal from a judgment entered on a jury verdict for plaintiff in an action for intentional infliction of emotional distress. We affirm.

On February 1, 1982, plaintiff's husband answered the home telephone five or six times, but the caller did not speak. On February 2, 1982, while plaintiff was not at home, her twelve-year-old babysitter received two telephone calls. During one of the calls the caller asked the babysitter if she "sucked cocks" like plaintiff did. Then on February 3, 1982, plaintiff answered the telephone, whereupon the caller asked, "Hey, baby, how about a blow job." A friend of plaintiff's who was present at the time was able to keep the caller on the line while plaintiff called the police. Because of a trap that had been placed on plaintiff's telephone, the police were able to trace the telephone call to defendant.

Defendant later pleaded guilty to a criminal complaint charging him with two counts of using "a telephone to call another person with intent to terrorize, intimidate, threaten, harass, or annoy such person by using any obscene or lewd language or by suggesting any lewd or lascivious act contrary to SDCL 49-31-31." At the subsequent civil trial initiated by plaintiff, the criminal complaint was received into evidence for impeachment purposes. Defendant also admitted at trial that he had made the two obscene phone calls on February 2 and February 3. Much of plaintiff's case-in-chief consisted of testimony as to the traumatic effect which the obscene calls had upon plaintiff.

At the close of plaintiff's case, defendant moved for a directed verdict, but the motion was denied. Plaintiff then immediately moved for a directed verdict on the issue of liability. The trial court granted this motion and later instructed the jury that the only issue to be determined was the amount of damages, if any, plaintiff was entitled to recover. The jury returned a verdict for plaintiff in the amount of $5,000.00 actual damages and $15,000.00 punitive damages.

Defendant's first contention on appeal is that the trial court erred in granting plaintiff's motion for a directed verdict on the issue of liability. Defendant maintains that the jury, rather than the court, should have determined whether all the elements of the tort were present in this case. We disagree.

A trial court's ruling on a motion for a directed verdict is presumed to be correct, and this court will not seek reasons to reverse. In reviewing such a ruling, the evidence must be viewed in the light most favorable to the party against whom the motion was directed, and without weighing the evidence, this court must decide whether the verdict is properly supported. Ziebarth v. Schneiders, 342 N.W.2d 234 (S.D.1984). If there is enough evidence to allow reasonable minds to differ, then the directed verdict is inappropriate. Cox v. Brookings Intern. Life Ins. Co., 331 N.W.2d 299 (S.D.1983).

With this standard of review in mind, we examine the elements of the tort of intentional infliction of emotional distress. On two separate occasions we have stated that recovery can be had for mental pain, though no physical injury results, when the following elements are present: the act causing the anguish was done intentionally, the act was unreasonable, and the actor should have recognized it as likely to result in emotional distress. Chisum v. Behrens, 283 N.W.2d 235 (S.D.1979); First National Bank of Jacksonville v. Bragdon, 84 S.D. 89, 167 N.W.2d 381 (1969). See also Gross v. United States, 723 F.2d 609 (8th Cir.1983); Gross v. United States, 508 F.Supp. 1085 (D.S.D.1981). It has also been said of this tort that "there is liability for conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind." W. Prosser, Handbook of the Law of Torts Sec. 12 (4th ed. 1971). ¹

Defendant claims that the directed verdict on the issue of liability at the close of plaintiff's case foreclosed him from presenting evidence of his motivations for making the obscene telephone calls. He alleges that his motives were anger and frustration over the difficulties his wife encountered in working with plaintiff, and that such motives would show a lack of intent to cause emotional distress. We find this argument to be unconvincing. No matter what defendant's specific motivation may have been, such motivation does not negate the fact that the act was done intentionally. In fact, defendant's admitted anger when making the telephone calls greatly strengthens a finding of intent to cause emotional harm. While defendant's motivation may be relevant on the question of mitigation of damages, Hannahs v. Noah, 83 S.D. 296, 158 N.W.2d 678 (1968); 25 C.J.S. Damages Sec. 127 (1966), it is not conclusive as to intent; one may have any number of motives for doing a particular act and yet still do the act intentionally. Here defendant was allowed to present evidence of his motives on the question of damages; thus he has no cause to complain.

Along with the intent to cause distress to plaintiff, it is readily apparent that defendant's actions were unreasonable. Rather than attempting to settle his problems with plaintiff through recognized and accepted procedures, defendant resorted to vulgar and obscene telephone calls--acts which our society has deemed unacceptable. SDCL 49-31-31. As indicated above, defendant pleaded guilty to two criminal charges of having violated SDCL 49-31-31.

In addition, defendant should have known that under the pressure-filled circumstances of the time, obscene calls such as these would result in emotional distress for plaintiff. Defendant knew that plaintiff had recently endured traumatic episodes at work and that plaintiff had recently been fired from her job. Such knowledge by defendant makes this type of conduct even more unreasonable. Cf. Restatement (Second) of Torts Sec. 46, comment f (1965) (the outrageous character of the conduct may arise from the actor's knowledge that the other is peculiarly susceptible to distress.) Therefore, we must conclude that the directed verdict for plaintiff was properly supported by the evidence. Defendant's own admissions and the settled facts provided sufficient basis for the court to direct a verdict on the question of liability. ²

Defendant's second contention is that there was insufficient evidence produced at trial to justify the award of $5,000.00 in actual damages. In support of this proposition, defendant calculates that plaintiff incurred only $133.99 in medical expenses. On that basis, defendant urges us to reverse and remand for a new trial.

This court has recently stated that a new trial is not justified on the basis of insufficiency of evidence to support the verdict unless it appears that the evidence was conflicting on several controlling points and that the findings of fact were unreasonable, arbitrary, and unsupported in light of other proven evidentiary facts. In such cases, the court must view the evidence in the light most favorable to the successful party, and that party should have the benefit of every reasonable inference that can be drawn therefrom. Klug v. Keller Industries, Inc., 328 N.W.2d 847 (S.D.1982).

Our review of the evidence in this case convinces us that there was sufficient evidence to support the verdict. As the trial judge noted, plaintiff became terrified and distraught after the obscene calls; she suffered spells of vomiting; she could not do her work properly; she had a difficult time doing household chores; she would awaken at night and be unable to get back to sleep; she was afraid to answer the telephone; she suffered headaches; etc. In sum, there was significant evidence of emotional distress on the part of plaintiff. Much of this anguish simply could not be measured in terms of medical bills; indeed, the very nature of this tort makes it impossible to quantify damages merely by adding up medical bills.

Along this same line, defendant claims that the entire damage award of $20,000.00 should be set aside as being the result of passion and prejudice on the part of the jury. When faced with this issue in the past, we have consistently held that a damage award should not be overturned unless it is so excessive as to strike mankind, at first blush, as being beyond all measure, unreasonable, flagrantly outrageous, extravagant, and such that it manifestly shows the jury to have been actuated by passion, partiality, prejudice or corruption. Klug, supra; Brewer v. Mattern, 85 S.D. 356, 182 N.W.2d 327 (1970). Under the facts and circumstances of this case, we do not regard the total damage award as being outrageous or extravagant. Rather, we deem the amount of damages to be quite proper. As we stated in Hulstein v. Meilman Food Industries, 293 N.W.2d 889 (S.D.1980), punitive damages must be relatively large to accomplish the objective of punishing the wrongdoer and deterring others from similar wrongdoing.

Defendant's next contention is that the $15,000.00 punitive damage award is unsupported by any convincing evidence demonstrating defendant's ability to pay such a sum. This court has stated five factors which have a bearing upon the amount of punitive damages: 1) the amount allowed in compensatory damages; 2) the nature and enormity of the wrong; 3) the intent of the wrongdoer; 4) the wrongdoer's financial condition; and 5) all of the circumstances attendant to the wrongdoer's actions. Hulstein, supra. Defendant contends that the fourth factor was not...