Wiehe v. Kukal, 49207
| Decision Date | 31 March 1979 |
| Docket Number | No. 49207,49207 |
| Citation | 592 P.2d 860,225 Kan. 478 |
| Parties | Sherman L. WIEHE and Mary Ann Wiehe, Appellants, v. Roy E. KUKAL and Joann Kukal, and Chester L. Hattley, Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court
Upon review of the record in an action for damages for emotional distress, sustained by a wife who witnessed a heated fence line dispute wherein a neighbor assaulted but did not touch her husband, it is Held : that the neighbor's conduct was not "extreme and outrageous"; that the neighbor did not "intentionally or recklessly" cause the wife's severe emotional distress; and that the facts do not establish liability under the rule set forth in the Restatement (Second) of Torts § 46(2) (1965).
Charles D. Kugler, of DeCoursey & Kugler, Kansas City, argued the cause and was on the brief for appellants.
James D. Howell, Jr., Overland Park, argued the cause and was on the brief for appellees.
The issue presented in this appeal is whether a wife can recover damages for severe emotional distress which she sustained as a result of hearing and seeing a third person verbally abuse and physically assault her husband. Joann Kukal received judgment for $10,000 against Sherman L. Wiehe in Wyandotte District Court, based upon her claim that she suffered emotional distress following a fence line dispute between her husband and Mr. Wiehe. This appeal is from that judgment.
Concisely stated, the facts as disclosed in the trial of this action, when viewed in the light most favorable to appellees, are these: The plaintiffs-appellants, Mr. and Mrs. Sherman Wiehe, own a tract of land in Wyandotte County which abuts an abandoned railroad right-of-way. Across the right-of-way and also abutting on it are properties owned by the defendants-appellees, Mr. and Mrs. Roy Kukal and Chester Hattley. In September, 1973, Mr. Wiehe agreed in writing to level the right-of-way and to remove and replace the existing fence, all at no cost to the other landowners. The fence was removed and the leveling was completed in the fall of 1973. Mr. Wiehe did not replace the fence promptly, so on December 1, 1973, Mr. Kukal and Mr. Hattley started to do so.
Wiehe came out to where Kukal and Hattley were installing the fence. Wiehe became incensed; he claimed that Kukal and Hattley were erecting the fence 10 to 15 feet over on his land. Wiehe swore and shouted obscenities; he directed this language at Kukal. Wiehe left and went inside his home to check his abstract and to call his lawyer. He returned in 10 to 15 minutes, carrying a pitchfork and yelling loudly.
During this second confrontation, Mrs. Joann Kukal heard the ruckus from her kitchen. She came out of the house and walked to a point some 30 to 35 feet from her husband. Wiehe waived the pitchfork over his head towards Kukal in a threatening manner. He raved and shouted at Kukal, calling him names and claiming that Kukal was stealing Wiehe's land. Wiehe threatened to pull the fence out with his Jeep, and to sue Kukal for everything he could get. Though Wiehe made no oral threats of violence to Kukal's person, he backed Kukal up without touching him, waving the pitchfork towards him, while he (Wiehe) was ranting and raving about the location of the fence. Wiehe said nothing to Mrs. Kukal, and made no threats or movements toward her. Mrs. Kukal, fearing that Wiehe would harm her husband, screamed, "Get away from that man, Roy." Hattley then asked Mrs. Kukal to go in and call the police. She stood there as if she were in a trance, until her daughter pulled her toward the house; then she went in and called the police. Mrs. Kukal was nervous, frightened and upset, and she didn't go outside of the house anymore that day. Since then her health has been poor; she cries a lot, has no appetite, has lost weight, and is depressed. Previously, she had no health problems.
This action was commenced by the Wiehes on December 4, 1973. Mrs. Kukal consulted her family physician on December 7, 1973; he found no physical ailments and referred her to a psychiatrist, Dr. Kenneth L. Grady. Mrs. Kukal has been under his care continuously since that time for depression and anxiety. She was admitted to the hospital for one day and later for about ten days for evaluation and treatment; otherwise, she has been treated on an outpatient basis. Dr. Grady testified that Mrs. Kukal was very depressive, and that this was progressing to psychotic depression. He gave his opinion, based upon reasonable medical certainty, that her emotional disease was directly related to the acts of Mr. Wiehe on December 1, described above.
Mr. and Mrs. Wiehe filed their petition on December 4, 1973, to recover damages and the land which they claimed defendants had appropriated by setting the fence over on the Wiehe land. The Wiehes claimed that the true boundary line was the center of the abandoned railroad line, and that the fence erected by Kukal and Hattley was 10 to 15 feet beyond that line and over on Wiehe's land. Defendants filed answer and counterclaim on December 12, 1973, seeking damages. Included was a counterclaim for emotional distress against Wiehe, asserted on behalf of Joann Kukal. At the close of trial, the jury returned a verdict denying all of the damage claims and counterclaims except that of Mrs. Kukal; it awarded her damages of $10,000 against Mr. Wiehe. In addition, it answered a special question submitted, and determined that the boundary line was the center of the abandoned railroad line, where Wiehe claimed it was, and not where Kukal and Hattley had placed the fence. Motions for judgment notwithstanding the verdict, for a new trial, and to alter or amend the judgment by striking the damage award, were all overruled. This appeal followed.
Appellees move to dismiss the appeal for several technical reasons: for failure of appellants to timely file their statement of points with their designation of the record, as required by Rule 6(D ), 214 Kan. xxiii; because of an error (since corrected) in the printed record on appeal; and for failure of the appellants to prepare their brief strictly in compliance with Rule 8; 214 Kan. xxvi. We have carefully considered each point, the record, and the arguments and briefs of counsel. Appellees have not been misled or prejudiced in any way. The motion to dismiss is overruled.
The claim for emotional distress, arising out of "outrageous conduct" where that conduct is directed at a third person, is within the sphere of tort law encompassed within Restatement (Second) of Torts § 46 (1965). In Dawson v. Associates Financial Services Co., 215 Kan. 814, 529 P.2d 104 (1974), a claim was asserted for damages because of intentional harassment by a finance company of a debtor at a time when the finance company knew that the debtor had contracted multiple sclerosis. We there discussed the rule contained in Restatement (Second) of Torts § 46(1), which provides:
"One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm." (p. 71.)
We said:
(215 Kan. at 822, 529 P.2d at 111.)
Subparagraph (1) of § 46 was also discussed and applied in Bradshaw v. Swagerty, 1 Kan.App.2d 213, 563 P.2d 511 (1977).
However, we have never considered or had before us a cause of action based upon subparagraph 2 of § 46. This reads:
Mrs. Kukal, as the spouse of the third person at whom the conduct (the assault) was directed, fits into the § 46(2)(a) category.
One claiming injuries for emotional distress caused by outrageous conduct under § 46(2)(a) must show:
(1) that the conduct was "extreme and outrageous";
(2) that such conduct was directed at a third person;
(3) that the claimant is a member of the immediate family of that third person;
(4) that the claimant was personally present when the extreme and outrageous conduct took place;
(5) that the claimant sustained severe emotional distress as a direct result of that conduct (whether or not the claimant sustained bodily harm); and
(6) that the person whose conduct is complained of "intentionally" or "recklessly" caused severe emotional distress to the claimant.
We consider first whether the conduct of Wiehe was "extreme and outrageous." In Dawson we said:
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