*1 BROWN, Arlene F.
Plaintiff-Respondent-Cross
Appellant, Fritz,
George Phyllis T. FRITZ M. wife, Defendants-Appel-
husband and Respondents,
lants-Cross V, Manning, Through Does In-
Daniel I
clusive, and All Other Un- Persons Title, Claiming Any Right,
known
Estate, Lien or In the Real Interest
Property Complaint Described In the Ownership,
Adverse to Plaintiff’s Any
Which Constitute Cloud Plain- Thereto,
tiffs Title Defendants.
No. 15311.
Supreme Court of Idaho.
2,May *2 buying in
Brown was interested
a resi-
property
vicinity
Hailey,
dence
in the
of
realtor,
company
Idaho.
In the-
of a
she
property
viewed
in the Fritzes’
the Fritz
Brown and the realtor returned
absence.
following day
the
while the Fritzes were at
the residence. Defendant Fritz then dis-
played
property
made
the
to Brown and
representations relating to the insu-
several
tanks,
lation,
septic
the number of
and the
boundary
property.
lines of the
Brown
representations
upon
relied
these
agreement,
listing
those made in the
includ-
ing that the lot size was 7.3 acres. Brown
subsequently purchased the house for
$105,000.
Doerr,
A.
F. Trainor and John
Kevin
Following
taking possession
Brown’s
of
Falls, defendants, appellants-cross re-
Twin
residence,
large
of defects
the
number
spondents.
apparent, indicating to Brown that
became
Peebles, Ketchum,
L.
Rand L.
Charles
of
misrepresented
Fritz had
the condition
Cascade,
Hay,
plaintiff-respondent-
for
Among
more serious
property.
the
the
appellant.
cross
faulty design and the
the
defects were
system,
sewage
the
which
malfunction of
SHEPARD, Justice.
sewage
accumulate beneath
caused raw
to
which,
of the winter
house and
because
judgment
appeal
This is an
from a
which
weather,
immediately
not be
remed-
could
inflic-
negligent
for the
allowed
Also,
occupied
shortly after Brown
ied.
distress. Plaintiff-re-
tion of emotional
Manning ap-
property,
brought
against
the action
spondent Brown
that, prior
informed her
proached her and
Fritzes,
purchased real
from whom she
Fritz had sold
purchase,
to the Brown
title,
of
property,
misrepresentation
for
Manning.
roughly two of the 7.3 acres
misrepresentation of the condition of
of emo-
property,
negligent
infliction
Brown felt
question
There is no
but
also
Manning
Daniel
tional distress.
$10,000to
spend approximately
required to
defendant,
title
in order to clear
joined as a
property.
repair
the deficiencies
Following tri-
property
question.
to the
that Brown
question
no
There is also
plaintiff
by jury,
quieted
title was
al
property.
dispose of the
compelled to
felt
damages, both for
she was awarded
she could
portion to which
She sold that
of the condition
$150,000,
misrepresentation
approximately
give clear title for
negligent
prior
the sale and for
with the new
signed
she
a contract
re-We
of emotional distress.
infliction
dispute
acres
purchaser to sell
two
appeal, that
issue on
verse as
cleared.
$25,000,
could be
once title
for
damages for
being the award of
(cid:127)
against
brought an
Brown
distress.
infliction of emotional
damages for
Manning for
Fritzes
for breach
misrepresentation,
fraudulent
of the facts were
Although many
of emo-
negligent infliction
contested,
prevailed at
plaintiff
hotly
since
distress,
damages, and
punitive
tional
light
trial,
view the case
we
most
two
disputed
in herself to
quiet title
Higginson
her.
Wester
favorable to
acres.
(1979);
687,
In
Summers Western Idaho Potato
distress,
generally
emotional
this tort “is
Processing,
presence
held to lie
of out-
Summers,
defendant,
employee
an
part
rageous intentional conduct on the
injured
clothing
when
of her
became
...,”
the defendant
and there was no indi-
entangled
machinery.
in some
re
She
cation in
of such “level of out-
compensation
ceived workmen’s
for that
Hatfield
849-850,
rageousness.” 100 Idaho at
brought
injury and then
an action
effect
negli-
As to
tort of
arising
P.2d at 953-954.
for emotional distress
from her
distress,
clothing’s having
gent
been
and her
infliction of emotional
torn off
universally
having
left nude
her fellow
noted that courts “almost
been
before
require that the actions of the defendant
“Evidence of the commercial nature of the
cause some physical injury
plain-
question,
contract may bear
which accompanies the emotional dis-
it does not
it. The an-
absolutely decide
tiff
tress,”
100 Idaho at
always
955 swer will
turn
the facts of the
(emphasis added).
Summers,
Citing
particular
su-
case.” 100 Idaho at
pra, the
Evidently,
Court held that since there
P.2d at 951.
intended
was no
the Court
involved,
injury
to indicate
negli-
the tort of
a distinction between “non-com-
gent
contracts,
perform
infliction of emotional
mercial”
such as to
distress did not
section,
lie,
therefore,
bury
body,
caesarean
or to
the Court reversed the
trousseau;
specific
deliver
a bride’s
and the
award for that tort.
contract in the
in-
case before the
sought
The Court in
also
Hatfield
volving
agreement
goods.
an
to auction
*4
distinguish actions “asserted in connection
The Court stated:
independent
with the
of
torts
anything
“Nor did
about the situation
distress,”
intentional infliction of emotional
surrounding the formation of the con-
and
“claims ... asserted as
of the
party
tract
indicate that either
contem-
recovery
independent
measure of
for some
plated emotional
a result of
distress as
wrong perpetrated
plaintiff by
on the
the
course,
breach.
the breach of
Of
defendant, such as a breach of contract.”
party
impor-
contract which the
considers
846,
950,
100 Idaho at
(empha-
606 P.2d at
predictably
tant
will lead to some emo-
supplied).
sis
As to actions for breach of
competitive
tional distress. Life
the
contract,
held,
the Court
“As a matter of
equal ca-
commercial world has at least
law, then, the award could be based
the
on
benefit,
pacity
and it is
to bestow ruin as
breach of contract
if such harm were
presumed
those who enter
that
contemplation
parties
within the
of the
at
accepting
willingly,
world do so
the risk
contract,
they
the time
formed the
if
and
part of
encountering
of
the former as a
the breach were wanton or reckless.” The
achieving the latter. Absent
the cost of
general
Court
the
rule from
stated
contrary,
clear evidence to the
we will
jurisdictions
other
is that
of
breach
presume
parties
that the
con-
contract, damages for emotional distress
meant to
tract such as the one before us
“only
be awarded
when the breach is
tranquili-
emotional
ensure each other’s
wanton or reckless
where
such
...
848,
at 952.
ty.”
breach of contract and an action
J.
Idaho at
say
tious
it to
contract. Suffice
We
asserted
emo
speaks
BISTLINE, Justice,
concurring.
specially
from
tional distress which arise
or have
Cheney
Just
he did in
v. Palos Verdes
of a
their roots
the breach
contractual
Inv.
104 Idaho
Corp.,
P.2d 661
relationship.
speak
ques
We do
(1983),
Shepard again
Justice
takes the
purely
arising
tion of
tortious conduct
out
right
Court in the
direction.
an-
The rule
apart
side of
from contractual rela
brings
today
nounced
to mind Linscott v.
tionship.
day
We
to another
leave
Co.,
Rainier
Ins.
National
which,
carving
arising
out
conduct
while
Life
854,
The Linscott interfered. cerning her health. away When the smoke cleared all that re- represented $20,000 policy 3. The was to the punitive damages mained of plaintiffs $1,800 $1,800 and to Laurelie the defend- attorney’s fees was the covering pre- agent policy ant’s as a all which the Linscotts were entitled to with or existing months after is- conditions six punitive damages magnifi- without —which suance. cent amount would have as much deterrent effect on such a defendant as would a 4. After the were filed claims single elephant plaintiffs, pay- flea on an hide. While the refused defendant jurisdictions Judge Cogswell purely stated his views on the law emotional trauma. Other pertinent recovery facts: trauma have allowed present where there were manifestations of Plaintiffs were with Laurelie Lin- (See policies purchased injury when the were from Western Idaho scott Summers vs. through Squires. I.) Processing the defendant Donald Nor- Company, Ida Potato pre- helped R„ man Linscott Laurelie Linscott p. 47. pare insurance claims for his the medical daughter helped exactly to forward them to the shown to the Hat- 3. This was what was testimony Sons, defendant. His is uncontradicted v. Max Rouse & field denying that the conduct of court and P.2d 944 district —the policy extremely under the claims judgment received the of which verdicts upsetting plaintiffs. at the hands of the same court. same treatment The evidence is also uncontroverted that tractor for half Max Rouse sold Hatfield’s After policy, plaintiffs, as beneficiaries under proceeds price, it held the *8 of the reserve any personal injury nor have not incurred forego agree to his ransom until Hatfield would they prop- for loss of a suffered damages. failed and suit claim for When that erty right. Hatfield, Rouse, by al- Max was filed David plaintiffs’ important It is to note that though fiduciary, to withhold the continued suffering upon is based claim for mental Hatfield, $12,000 only paid it after from and pay ground of failure of the defendant to judgment. The verdict and Linscott-Hatfield upon policy the inde- claim and is not based by completely era- Court excused such conduct outrageous pendent conduct intention- tort of damages— punitive dicating jury’s award ally causing severe emotional distress. just and had held was which the trial court doctrine that Idaho is committed to the proper. right recovery for no there is common-law
365
disagree
alleging misrepresentation
by
“Specifically,
ment
ment therewith:
I
Laurelie Linscott. The
with its reliance
the defectiveness of
refusal continued
complaint.
This issue was neither con-
even
face of all of the medical advice
by
sidered
the trial court
directly
nor
ad-
in this case that Laurelie Linscott was
argument provided
dressed in the briefs on
suffering
se,
epilepsy per
from
Id,.,
585,
appeal.”
on
at
367
a
court,
state’s supreme
v.
will
Stolworthy,
not
consider
714,
102 Idaho
In civil regularly actions1 the Court has that,
held both under earlier statutes and recently
more appellate under the rules of
procedure, party who does not raise an court,
issue before the trial or who on
appeal does not assert an issue as error on
appeal, issue, has waived that and the issue
will
by
not be considered
Cox
Court.2
683,
(1972),
generally applies
Stolworthy,
1. While the
in
P.2d
same rule
crimi-
94 Idaho
496
682
702,
proceedings,
nal
under certain limited situa-
Jolley Puregro,
and
Idaho
v.
94
2. Justice in his ion, recurring returns to a theme that Cox v.