Ruple v. Brooks

еffect, appellees block from a resolution of parties RUPEE, Appellee,

the differences of these in a court Ann Plaintiff and agreement of law. If this were so con- strued, and I do not believe that it can be BROOKS, Earl Defendant and terms, under its we would have before us Appellant. justice being the administration of con- by trolled contract. “The administration of No. 14121. justicе by is not a to be controlled Supreme of South Dakota. Court contract, agreed and the courts are agreements tendency which have a to ob- Argued Nov. 1983. struct, impede, or interfere the admin- July Decided justice contrary public istration of are Contracts policy.” 17 Am.Jur.2d

Furthermore, this state has enacted a policy public

statement of in furtherance of I addressed fol-

the text of which have

lows:

Every provision in a contract restrict-

ing party enforcing rights by legal proceedings in

under it usual

ordinary limiting tribunals or his time to so, however, providing

do is void

agreements to submit controversies to

arbitration, as authorized the Uniform Act,

Arbitration shall be considered valid

and enforceable.

SDCL 53-9-6. litigants this controver-

These submitted

sy to arbitration and were thus bound Act enactеd Uniform Arbitration majori- I am in accord with the state.

ty opinion panel clearly the arbitration ‍‌‌‌‌​‌​​​​​‌​‌​‌‌‌‌‌‌‌​​​‌‌‌​‌​‌‌​‌​​‌​‌‌‌​​‌‌​​‍authority by deciding matters

exceeded its of the issues

outside of the framework in arbitration. Accord-

submitted to them

ingly, I concur. Offices, Light Light Law Yank-

C.E. ton, plaintiff appellee. Ridgway Brady, Michael E. Kabeise- Johnson, Yankton, man, Reade, & Abbott appellant. for defendant and (on DUNN, reassignment). appeal judgment from a en- This is an plaintiff in an on verdict for tered for intentional infliction action Wе affirm. distress. 1982, plaintiff’s husband February

On telephone five six the home or answered times, speak. On but caller did not 2, 1982, at February plaintiff while was not home, babysitter twelve-year-old re- her During telephone one of two calls. ceived babysitter if calls the caller asked the plaintiff like did. Then “sucked cocks” February answered on asked, whereupon caller telephone, job.” A “Hey, baby, about a blow how plaintiff’s who was friend keep on the line the caller time able police. called the Because while trap placed had been of a able to trace the telephone, police were telephone call to defendant. to a pleaded guilty later crimi- complaint charging him two

nal call using “a anоther counts terrorize, intimidate, person intent to Cox v. Brook inappropriate. ed verdict is harass, Co., threaten, annoy person by such ings Intern. Ins. Life using language obscene or lewd suggesting any lewd or lascivious act con- With this standard of review in At trary to SDCL 49-31-31.” the subse- mind, examine the elements of the tort quent by plaintiff, trial initiated civil of intentional infliction of emotional dis complaint criminal was received into evi- separate tress. On two occasions we have impeachment purposes. for dence Defend- recovery stated that can be had for mental ant also admitted at trial that he had made results, pain, though physical injury phone February calls on 2 two obscene following present: when the elements are February plaintiff’s 3. Much ‍‌‌‌‌​‌​​​​​‌​‌​‌‌‌‌‌‌‌​​​‌‌‌​‌​‌‌​‌​​‌​‌‌‌​​‌‌​​‍of case- causing anguish the act was done inten testimony in-chief consisted of as to the tionally, unreasonable, the act was and the traumatic effect which obscene calls recognized likely actor should have it as to upon emotional distress. Chisum v. result At the close of defendant Behrens, (S.D.1979); First 283 N.W.2d 235 verdict, moved for a directed but the mo- Brag National Bank Jacksonville v. tion was denied. Plaintiff then immediate- don, 167 S.D. ly moved for a directed verdict on the issue States, also Gross United 723 F.2d liability. granted The trial court this (8th Cir.1983); States, Gross v. United jury motion and later instructed the F.Supp. (D.S.D.1981). It has also only to determined issue was the liability been said of this tort that “there is damages, any, plaintiff amount of was exceeding for conduct all usually bounds entitled to recover. The returned a society, tolerated decent of a nature in the amount of cause, especially is which calculated to $5,000.00 $15,000.00 damages actual cause, does mental distress of a seri punitive damages. Prosser, ous kind.” W. Handbook of the appeal Defendant’s first contention on is § (4th 1971).1 Law of Torts ed. granting plain- that the trial court erred in tiff’s motion for a directed verdict on the Defendant claims that the direct liability. issue of Defendant maintains liability ed verdict on the issue of court, jury, that the rather than the close of case foreclosed him from have determined whether all the elements presenting evidence of his motivations for present of the tort were this case. We making telephone the obscene calls. He disagreе. alleges anger that his motives were frustration over the wife difficulties his ruling

A trial court’s on a motion working plaintiff, encountered in presumed for a directed verdict to be that such motives would show a lack of correct, and this court will not seek reasons intent to cause emotional distress. We find In reviewing ruling, reverse. such a argument unconvincing. this to be No evidence must be viewed most specific matter what defendant’s motiva party against favorable to the whom the been, directed, may tion such motivation does weighing motion was and without evidence, negate not the fact that the act was done this court must decide wheth fact, intentionally. Zie properly supported. er the defendant’s admit verdict is Schneiders, barth (S.D. anger making ted when cаlls 1984). enough greatly strengthens finding If there is evidence to allow of intent to differ, reasonable minds to then the direct emotional harm. cause While defendant’s it, 46(1) bodily 1. The Restatement results from for such § harm.” The following "One sets forth the rule: who Restatement also contains a caveat which im- plies may extreme and conduct intentional- there be other circumstances recklessly subject liability emotional distress under which an actor causes severe to another is for such emo- for intentional or reckless infliction of emotion- distress, bodily tional and if harm to the other al distress. question be relevant on the Defendant’s motivation second contention is that there mitigation damages, produced was insufficient Hannahs v. evidence Noah, (1968); justify trial thе award of (1966), damages. actual In support Damages propo- 25 C.J.S. is not sition, intent; calculates that conclusive as to one only incurred expenses. $133.99 in medical doing particular number motives for basis, On urges intentionally. do us to re- yet act still the act verse and remand for trial. a new Here defendant was allowed to evi- dence of his motives on the This court has stаted that a damages; he thus has no cause com- justified new trial is not on the basis of plain. insufficiency support of evidence to appears verdict unless it that the evidence Along the intent to cause distress conflicting controlling on several readily that defend- plaintiff, apparent points findings and that the of fact were ant’s were unreasonable. Rather аctions unreasonable, arbitrary, and unsupported problems attempting than to settle light proven of other evidentiary facts. accepted and plaintiff through recognized cases, In such the court view the vulgar resorted to procedures, defendant evidence the most favorable to the and obscene calls—acts which party, party successful аnd that unacceptable. society has deemed our every of the benefit reasonable infer above, As de- SDCL 49-31-31. indicated ence can be Klug that drawn therefrom. guilty two criminal pleaded fendant Industries, Inc., v. Keller 328 N.W.2d 847 charges having of violated SDCL 49-31-31. addition, In defendant should have Our review of the evidence in this pressure-filled under cir- known that the case us convinces that thеre was sufficient time, cumstances of the obscene calls such support evidence to the verdict. As the these result in emotional distress as would noted, plaintiff trial judge became terrified plaintiff. knew that plain- calls; distraught after the obscene she epi- tiff had endured traumatic vomiting; spells suffered she could not plaintiff sodes at work and recent- had a proрerly; do her work difficult job. been fired from her Such knowl- chores; doing time she would household type edge makes this of con- night get unable to awaken at back duct even more unreasonable. Restate- Cf. sleep; she was afraid to answer the § 46, f ment comment headaches; telephone; she suffered etc. (the of the con- character sum, significant In there was еvidence of knowledge duct arise from the actor’s part on emotional distress the peculiarly susceptible the other is anguish simply Much of this could not be Therefore, distress.) must conclude we bills; indeed, in terms of medical measured plaintiff that the verdict for directed impos makes the nature this tort it properly supported the evidence. De- merely quantify damages by add sible to the admissions and settled fendant’s own ing up medical bills. provided sufficient for the court facts basis line, Along this of liabili- same to direct a verdict the damage award of the entire ty.2 claims a Although plaintiff’s or both move for directed verdict motion for a directed ver- fendant (at testimony); plaintiff's dict at an unusual time the close C. was made at the conclusion case), timing Miller, that the we conclude Wright & A. Federal Practice and Proce- necessarily improper. SDCL dure, Civil, was not 15-6- (although usually di- § 2535 50(a) by plaintiff a for a does not forbid motion party asserting are verdicts the rected case, his own directed verdict close of claim, directed for suggest proper. that it is other authorities overwhelming plaintiff's evidence Verdict, 50(a) Smyser, Rule Directed The case.) (1974) (either or de- S.D.L.Rev. 39 being should be set aside as at trial to indicate defendant’s prejudice part passion pay punitive result of on the damage award. jury. faced with When this ‍‌‌‌‌​‌​​​​​‌​‌​‌‌‌‌‌‌‌​​​‌‌‌​‌​‌‌​‌​​‌​‌‌‌​​‌‌​​‍issue We have also examined defendant’s final past, consistently held that a we issue and have found it to be without merit. damage award should not be overturned judgment of the triаl court is af- excessive as to strike man- unless is so firmed. blush, kind, being beyond at first as all measure, unreasonable, flagrantly outra- FOSHEIM, C.J., MORGAN, J., con- geous, extravagant, it mani- and such that cur. festly shows the to have been actuated corrup- HENDERSON, J., by passion, partiality, prejudice or specially. concurs Mattern, Klug, supra; tion. Brewer v. 85 WOLLMAN,J., dissents. 356, 182 N.W.2d 327 Under S.D. HENDERSON, (concurring spe-

the facts and of this circumstances cially). damagе regard the total award we do not extravagant. being outrageous Rath- joining decision, the majority I wish to er, damages we deem the amount to be express that I have absolutely quarrel quite proper. As stated in Hulstein damage question with the Industries, Meilman Food 293 N.W.2d 889 proven up by plaintiff against defendant. (S.D.1980),punitive damages must be rela- majority opinion The law set forth in the tively lаrge accomplish objective respect legally palatable to this tort is punishing wrongdoer deterring However, me. “[djirecting a verdict for wrongdoing. others similar proponent of an issue is said to be ” ‘reserved for extreme circumstances.’ Defendant’s next contention is that the Shepard’s Manual Federal Practice $15,000.00 damage punitive award is un- § 7.50, (2nd 1979); at 548 ed. Wilson v. supported by any convincing evidence dem- States, (8th Cir.1976). 530 F.2d 772 United onstrating pay defendant’s such a Especially granting should this be so when sum. This court has stated five factors a motion for a directed in verdict favor of a bearing upon which have a the amount of against and a defendant before the 1) punitive damages: the amount allowed opportunity defendant has an 2) comрensatory damages; in the nature very ruling case. It ais extreme and I 3) enormity wrong; and of the the intent of grant would caution trial courts to such a 4) wrongdoer; wrongdoer’s finan- motion in rare instances. SDCL 15-6- condition; 5) all cial of the circumstanc- 50(a) 50(a) has lifted Federal Rule verba- wrongdoer’s es attendant actions. tim. Hulstein, supra. Defendant contends that sufficiently prov- not power fourth factor was The court has under the rule to

en in grant this case. a directed verdict at the close of case. Nevertheless it has An examination of the record indi been said to “the safer be better and cates that defendant is in the construction * * * practice ruling ‍‌‌‌‌​‌​​​​​‌​‌​‌‌‌‌‌‌‌​​​‌‌‌​‌​‌‌​‌​​‌​‌‌‌​​‌‌​​‍upon to defer a homes, building remodeling new business— motion for a directed verdict until both homеs, doing general building older finally sides have rested.” employs persons work. He two in his busi Miller, Wright & A. 9 C. Federal Practice forklift, truck, ness and owns a a and vari § Procedure, Civil, at 585-86 ous other tools. He also owns four vacant (1971). lots. he obtained Just a bid total- instance, ling on a construction In this I project believe the trial court performance properly granted and filed a bond аp- for that the motion. It was amount. All parent evidence was unrefut- that defendant’s defense was not a Therefore, by Therefore, ed defendant. we conclude meritorious defense in law. fac- produced testimony uplift legal that there was sufficient evidence tual not would it to a Schnieders, (S.D.1984), posture. It makes no sense flail the See 9 C. when, law, Wright therein. they in constitute no eases cited & facts basic Miller, Federal Practice and Proce A. judge A trial has no defense. business § dure, Civil, submitting a defense to a unless the legal theory. is substantiated defense National In First Bank Jacksonville must A have a cause of action Bragdon, v. so, likewise, supported theory; must (1969), recognized this court the tort of defendant. intentional infliction of emotional distrеss. Behrens, Chisum v. In WOLLMAN, (dissenting). Bragdon (S.D.1979), adhered to the States, Plaintiffs motion for directed Gross holding. See also v. United inappropriate gener- an time. (8th Cir.1983); came at Gross Unit- 723 F.2d 609 States, ed F.Supp. (D.S.D.1981). rule is that such a motion made: al Behrens, Bragdon recognized As (1) opening after statement of ad- the tort of intentional infliction of emotion- counsel, by such verse statement intentional, upon al unrea- distress is based clearly of action shown no cause exists sonable conduct that the knows undeniable; that the cause of action or likely to result in emotional dis- would close evidence offered at the essence, the Bragdon-Behrens tress. close opponent; an of all rule is similar to that forth in the set evidence. 46(1): Restatement Lucas, Moore & Moore’s Federal 5A J. J. One extreme who 1981) (footnotes (2d ed. Practice 1150.04 intentionally recklessly conduct causes omitted). Appeals As the for the Court to another is severe distress stated, “[Njeither has in the First Circuit for such emotional dis- there rules nor the ease law is basis tress, bodily the other and if harm to rendering a directed verdict it, bodily harm. for such results before he has had сhance to plaintiff who Under the Restatement rule a Le Con Gonzalez present evidence.” emo- alleged has intentional infliction of D’Assurances, Campagnie F.2d corde prove four elements: tional distress (1st Cir.1979). held as We much defendant; (2) (1) 73, conduct Sampson, v. outrageous 202 Habeck 87 S.D. causing, or reck- (1972). defendant’s intentional 868 N.W.2d causing disregard probability less of of made Even if motion been distress; suffering emotional evidence, close of defendant’s the distress; severe or extreme emotional granted. not have When faced should been proximate of actual and causation verdict, a trial a motion for directed the distress the defendant’s is accept the evidence which court conduct. nonmoving party most favоrable the Co., 334 Khodari-Intergreen Powell v. in legitimate inference favor indulge all (Iowa also Har 1983); therefrom. Bu N.W.2d see 129 fairly be drawn that can Bank, Assocs., Savings v. N.W.2d sha 346 David State 323 dahl v. Gordon and Meyer Nottger, (Iowa 1984); 241 v. 791 If there is suffi 853 N.W.2d 1976); v. Grin (Iowa Amsden to N.W.2d 911 reasonable minds cient evidence allow Co., nell Mutual Reinsurance 203 differ, inappropriate. is a directed verdict Givelber, Co., genеrally (Iowa 1972). See Brookings Int’l Ins. 252 v. Cox Life Decency Minimum Right a verdict Social (S.D.1983). Although Limits Emotional Distress the when there is appropriately directed Conduct, Outrageous fact, 82 Colum.L.Rev. it is seldom for the trier of In (1982); Note, Tort”: Minnesota’s “New party having prov the burden of the Dis Emotional tentional proposi such proposition establishes ing a Of Infliction tress, (1984). of law. Ziebarth v. 10 Minn.L.Rev. as a mattеr tion (Sec- Although pleaded guilty (h) defendant had to The Restatement Comment ond) provides: charges having to two violated SDCL 49-31-31, litigation when civil involves oc- determine, in the the court to It is for instance, gave rise to a criminal currences which ‍‌‌‌‌​‌​​​​​‌​‌​‌‌‌‌‌‌‌​​​‌‌‌​‌​‌‌​‌​​‌​‌‌‌​​‌‌​​‍whether the defendant’s first reasonably regarded charge pleaded may to which the defendant conduct permit outrageous as to guilty guilty plea so extreme and is not conclusive as to the necessarily so. explained. Berlin recovery, or whether civil differ, it is men (1957). Where reasonable Berens, v. 80 N.W.2d of the subject to the control jury, the for any enthusiasm generate Hard as it is to whether, par- in the court, to determine position, for defendant’s I would hold has been suffi- the conduct ticular jury permitted have been outrageous ciently to result extreme whether his was so ex- determine conduct liability. in outrageous as to a re- treme and warrant Gilmartin, 686 F.2d Taylor v. See also Regrettably, covery by plaintiff. stan- Eccles, Cir.1982); Samms (10th speech and social discourse have dards P.2d 344 Utah 2d that which once become so debased contends that his evidence only heard in the loсker room and the existence could have controverted commonplace has become the barracks —if em Plaintiff had been required intent. rigueur indeed not de circles. certain fi city of Vermillion as its ployed by the judges grossly find to be Speech that we 1980 until she was ter officer from nance than offensive seem less position January from this minated daily ex- jury cоmposed to a of individuals thereafter, plaintiff com Shortly suffocating crudities posed to the verbal city and cer menced a lawsuit many society in so epidemic in a which alleged injuries tain of its officials express apparently lost the the termination. See due to suffered graphic most in other than the themselves (S.D. Weinaug, 328 N.W.2d Ruple v. Euphe- of terms. See Epstein, “Sex Ruple City also Vermil 1983). mism,” Commentary, April 1984. Cir.1983). lion, S.D., 714 F.2d 860 (8th De that reasonable minds could I would hold secretary employed as a fendant’s wife was conduct, defendant’s differ whether during time that city manager to the explanation of his when viewed officer. Defend as finance served claims background events that he of testimo at trial consisted ant’s evidence calls, prompted him to make the warranted city employees, ny and other from his wife liability under the tests imposition manager, regarding the including city rule. Accord- set forth in the Restatement city prior offices tension that existed permitted ingly, the trial court should ap being terminated and to decide this issue. plaintiff had manifested parent ill will that wife. Defendant tes defendant’s towards telephone calls had made the

tified that he venting anger and purpose his wife over the difficulties

frustration working

had encountered been

He contends that on the. this evidence

allowed to consider intent.

question of his

Case Details

Case Name: Ruple v. Brooks

Court Name: South Dakota Supreme Court

Date Published: Jul 25, 1984

Citation: 352 N.W.2d 652

Docket Number: 14121

Court Abbreviation: S.D.