State Rubbish Collectors Ass'n v. Siliznoff

Decision Date29 January 1952
CourtCalifornia Supreme Court

John C. Stevenson and Lionel Richman, Los Angeles, for appellant.

Borah & Borah and Peter T. Rice, all of Los Angeles, for respondent.

TRAYNOR, Justice.

On February 1, 1948, Peter Kobzeff signed a contract with the Acme Brewing Company to collect rubbish from the latter's brewery. Kobzeff had been in the rubbish business for several years and was able to secure the contract because Acme was dissatisfied with the service then being provided by another collector, one Abramoff. Although Kobzeff signed the contract, it was understood that the work should be done by John Siliznoff, Kobzeff's son- in-law, whom Kobzeff wished to assist in establishing a rubbish collection business.

Both Kobzeff and Abramoff were members of the plaintiff State Rubbish Collectors Association, but Siliznoff was not. The by-laws of the association provided that one member should not take an account from another member without paying for it. Usual prices ranged from five to ten times the monthly rate paid by the customer, and disputes were referred to the board of directors for settlement. After Abramoff lost the Acme account he complained to the association, and Kobzeff was called upon to settle the matter. Kobzeff and Siliznoff took the position that the Acme account belonged to Siliznoff, and that he was under no obligation to pay for it. After attending several meetings of plaintiff's board of directors Siliznoff finally agreed, however, to pay Abramoff $1,850 for the Acme account and join the association. The agreement provided that he should pay $500 in thirty days and $75 per month thereafter until the whole sum agreed upon was paid. Payments were to be made through the association, and Siliznoff executed a series or promissory notes totaling $1,850. None of these notes was paid, and in 1949 plaintiff association brought this action to collect the notes then payable. Defendant cross-complained and asked that the notes be cancelled because of duress and want of consideration. In addition he sought general and exemplary damages because of assaults made by plaintiff and its agents to compel him to join the association and pay Abramoff for the Acme account. The jury returned a verdict against plaintiff and for defendant on the complaint and for defendant on his cross-complaint. It awarded him $1,250 general and special damages and $7,500 exemplary damages. The trial court denied a motion for a new trial on the condition that defendant consent to a reduction of the exemplary damages to $4,000. Defendant filed the required consent, and plaintiff has appealed from the judgment.

Plaintiff's primary contention is that the evidence is insufficient to support the judgment. Defendant testified that shortly after he secured the Acme account, the president of the association and its inspector, John Andikian, called on him and Kobzeff. They suggested that either a settlement be made with Abramoff or that the job he dropped, and requested Kobzeff and defendant to attend a meeting of the association. At this meeting defendant was told that the association 'ran all the rubbish from that office, all the rubbish hauling,' and that if he did not pay for the job they would take it away from him. "We would take it away, even if we had to haul for nothing.' * * * (O) ne of them mentioned that I had better pay up, or else.' Thereafter, on the day when defendant finally agreed to pay for the account, Andikian visited defendant at the Rainier Brewing Company, where he was collecting rubbish. Andikian told defendant that "We will give you up till tonight to get down to the board meeting and make some kind of arrangements or agreements about the Acme Brewery, or otherwise we are going to beat you up.' * * * He says he either would hire somebody or do it himself. And I says, 'Well, what would they do to me?' He says, well, they would physically beat me up first, cut up the truck tires or burn the truck, or otherwise put me out of business completely. He said if I didn't appear at the meeting and make some kind of an agreement that they would do that, but he says up to then they would let me alone, but if I walked out of that meeting that night they would beat me up for sure.' Defendant attended the meeting and protested that he owed nothing for the Acme account and in any event could not pay the amount demanded. He was again told by the president of the association that 'that table right there (the board of directors) ran all the rubbish collecting in Los Angeles and if there was any routes to be gotten that they would get them and distribute them among their members * * *.' After two hours of further discussion defendant agreed to join the association and pay for the Acme account. He promised to return the next day and sign the necessary papers. He testified that the only reason 'they let me go home, is that I promised that I would sign the notes the very next morning.' The president 'made me promise on my honor and everything else, and I was scared, and I knew I had to come back, so I believed he knew I was scared and that I would come back. That's the only reason they let me go home.' Defendant also testified that because of the fright he suffered during his dispute with the association he became ill and vomited several times and had to remain away from work for a period of several days.

Plaintiff contends that the evidence does not establish an assault against defendant because the threats made all related to action that might take place in the future; that neither Andikian nor members of the board of directors threatened immediate physical harm to defendant. See, Lowry v. Standard Oil Co., 63 Cal.App.2d 1, 6-7, 146 P.2d 57; Restatement, Torts, § 29. We have concluded, however, that a cause of action is established when it is shown that one, in the absence of any privilege, intentionally subjects another to the mental suffering incident to serious threats to his physical well-being, whether or not the threats are made under such circumstances as to constitute a technical assault.

In the past it has frequently been stated that the interest in emotional and mental tranquility is not one that the law will protect from invasion in its own right. Newman v. Smith, 77 Cal. 22, 27, 18 P. 791; Easton v. United Trade School Contracting Co., 173 Cal. 199, 204, 159 P. 597, L.R.A. 1917A, 394; Cook v. Maier, 33 Cal.App.2d 581, 584, 92 P.2d 434; see, 52 .am.Jur., Torts, § 45, p. 388, and cases cited; Bohlen, Right to Recover for Injury Resulting from Negligence Without Impact, 41 Am.L.Reg., N.S., 141, 142-143. As late as 1934 the Restatement of Torts took the position that 'The interest in mental and emotional tranquility and, therefore, in freedom from mental and emotional disturbance is not, as a thing in itself, regarded as of sufficient importance to require others to refrain from conduct intended or recognizably likely to cause such a disturbance.' Restatement, Torts, § 46, comment c. The Restatement explained the rule allowing recovery for the mere apprehension of bodily harm in traditional assault cases as an historical anomaly, § 24, comment c, and the rule allowing recovery for insulting conduct by an employee of a common carrier as justified by the necessity of securing for the public comfortable as well as safe service. § 48, comment c.

The Restatement recognized, however, that in many cases mental distress could be so intense that it could reasonably be foreseen that illness or other bodily harm might result. If the defendant intentionally subjected the plaintiff to such distress and bodily harm resulted, the defendant would be liable for negligently causing the plaintiff bodily harm. Restatement, Torts, §§ 306, 312. Under this theory the cause of action was not founded on a right to be free from intentional interference with mental tranquility, but on the right to be free from negligent interference with physical well-being. A defendant who intentionally subjected another to mental distress without intending to cause bodily harm would nevertheless be liable for resulting bodily harm if he should have foreseen that the mental distress might cause such harm.

The California cases have been in accord with the Restatement in allowing recovery where physical injury resulted from intentionally subjecting the plaintiff to serious mental distress. Emden v. Vitz, 88 Cal.App.2d 313, 319, 198 P.2d 696; Bowden v. Spiegal, Inc., 96 Cal.App.2d 793, 794-795, 216 P.2d 571; Richardson v. Pridmore, 97 Cal.App.2d 124, 129-130, 217 P.2d 113, 17 A.L.R.2d 929.

The view has been forcefully advocated that the law should protect emotional and mental tranquillity as such against serious and intentional invasions, see, Goodrich, Emotional Disturbance as Legal Damages, 20 Mich.L.Rev. 497, 508-513; Magruder, Mental and Emotional Disturbance in the Law of Torts, 49 Harv.L.Rev. 1033, 1064-1067; Wade, Tort Liability for Abusive and Insulting Language, 4 Vanderbilt L.Rev. 63, 81-82, and there is a growing body of case law supporting this position. See, e. g., Barnett v. Collection Service Co., 214 Iowa 1303, 1312, 242 N.W. 25; Richardson v. Pridmore, 97 Cal.App.2d 124, 129-130, 217 P.2d 113, 17 A.L.R.2d 929; Prosser, Torts, § 11, p. 54 et seq., and cases cited; 15 A.L.R.2d 108. In recognition of this development the American Law Institute amended section 46 of the Restatement of Torts in 1947 to provide: 'One who, without a privilege to do so, intentionally causes severe emotional distress to another is liable (a) for such emotional distress, and (b) for bodily harm resulting from it.'

In explanation it stated that '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. The injury suffered by...

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