|||MISSOURI COURT OF APPEALS ST. LOUIS DISTRICT
518 S.W.2d 94
|||November 12, 1974
|||IRENE KUEHNER, PLAINTIFF-APPELLANT,
DENNY LOAN CORPORATION, A CORPORATION, DEFENDANT-RESPONDENT.
|||From the Circuit Court of the City of St. Louis, Missouri; Civil Appeal
from Action for Damages (Monetary Recovery); Judge William A Geary, Jr.
|||November 27, 1974 Transfer Denied; February 10, 1975 Application to Supreme
Court for Transfer Denied
|||Roger M. Hibbitts, Florissant, Missouri, Attorney for Appellant; Gerald
R. Ortbals, Harold A. Thomas, Jr., Randolph E. Schum, St. Louis, Missouri,
Attorneys for Respondent.
|||Before Simeone, P.j., Gunn, McMillian, JJ.
|||The opinion of the court was delivered by: Gunn
|||Plaintiff-appellant appeals from a jury verdict and judgment adverse to
her action for actual and punitive damages arising out of defendant-respondent's
efforts to collect payment of loan made to plaintiff and her husband. On
appeal, plaintiff raises a prolix maze of primary and secondary points--20
in number--which sift down to two basic points warranting Discussion and
which are dispositive of the appeal. The two points are: 1) that the trial
court erred in failing to declare a mistrial after a question allegedly
calculated to prejudice the jury against plaintiff was posed by defendant's
counsel to plaintiff during corss-examination; 2) that the critical instruction
on liability given by the court was not in accordance with the law and the
evidence. We affirm the judgment.
|||On October 23, 1967 plaintiff and her husband signed a note in favor of
defendant Denny Loan Company for a loan of $1,008. After plaintiff and her
husband fell behind in payments, defendant made effort to collect. According
to plaintiff, defendant abandoned its motto of "Where Friendship and
Finance Meet" and became definitely unfriendly. Plaintiff's testimony
was that defendant made innumerable telephone calls to her at home and at
work--as many as 60--and was truculent and even mordant; that as a result
of the fulsome telephone calls plaintiff lost her job and suffered great
mental anguish. Defendant related that the calls were few in number and
were only subtle and delicate urgings for remittance of money owed. Plaintiff's
former employer also testified that plaintiff had not lost her job for reason
of any actions by defendant but only because plaintiff's employment was
seasonal, and the season had ended. No matter; we let the jury decide conflicts
in testimony, Hollocher v. Taylor, 506 S.W.2d 105 (Mo. App. 1974), which
in this case were resolved in defendant's favor, and we forbear further
Discussion of the evidence.
|||Thus, we reach plaintiff's first point. On corss-examination, plaintiff
was asked the following question by defendant's counsel:
|||"Q. Mrs. Kuehner, at the time this was going on, were
you receiving any calls from your home, in connection with your involvement
in a movement to halt integration in the Nativity School, so that black
children wouldn't come into the Nativity Grade School?" Objection by
plaintiff's counsel was sustained by the court, and defendant's counsel
was cautioned against any further questioning on that particular subject.
Plaintiff moved for a mistrial charging that she was prejudiced by the question.
The motion for mistrial was denied, and we find no error in the court's
ruling. Mistrial is an extreme action to be exercised in the trial court's
discretion and only where a prejudicial error can be cured in no other manner.
The trial court is the best Judge of whether the error in this instance
could be cured by steps short of mistrial. Furlow v. Laclede Cab Co., 502
S.W.2d 373 (Mo. Spp. 1973). We find no abuse of discretion here, particularly
since plaintiff complained of receiving numerous calls at home, and there
was evidence to the effect that she had received calls relating to problems
at her childrens' school. Cases cited by plaintiff concern derogatory comments
made of the ethnic backgrounds of parties and are inapposite here.
|||Plaintiff also complains that the trial court erred in giving the following
|||"Your verdict must be for the defendant on Count II of plaintiff's
Petition unless you find and believe from the evidence that the conduct
of defendant, Denny Loan Corporation, was so outrageous in character, and
so extreme in degree, as to go beyond all possible bounds of decency, and
to be regarded as atrocious and utterly intolerable in a civilized community,
and that the aforesaid conduct was undertaken intentionally and recklessly
and with malice by the agents and servants of the Denny Loan Corporation."
The major thrust of plaintiff's claim of error is that under Pretsky v.
Southwestern Bell Telephone Co., 396 S.W.2d 566 (Mo. 1965), in order for
plaintiff to recover, the jury need only find that defendant's conduct was
extreme and outrageous, not--as the instruction here called for--extreme
and outrageous, plus the elements of being atrocious, utterly intolerable
and undertaken intentionally, recklessly and with malice. Consequently,
plaintiff alleges that the instruction is a misstatement of the law. We
disagree. In Pretsky v. Southwestern Bell Telephone Co., supra, Restatement
(Second) of Torts, § 46 (1965), was quoted with approval as follows, l.c.
|||"§ 46. Outrageous Conduct Causing Severe Emotional Distress
|||(1) 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.
|||"d. Extreme and outrageous conduct. The cases thus far decided have
found liability only where the defendant's conduct has been extreme and
outrageous. It has not been enough that the defendant has acted with an
intent which is tortious or even criminal, or that he has intended to inflict
emotional distress, or even that his conduct has been characterized by 'malice,'
or a degree of aggravation which would entitle the plaintiff to punitive
damages for another tort. Liability has been found only where the conduct
has been so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as atrocious,
and utterly intolerable in a civilized community. Generally, the case is
one in which the recitation of the facts to an average member of the community
would arouse his resentment against the actor, and lead him to exclaim,
'Outrageous!" (emphasis added)
|||Warrem v. Parrish, 436 S.W.2d 670 (Mo. 1969), and Nelson v. Grice, 411
S.W.2d 117 (Mo. 1967), also follow Pretsky and § 46 of the Restatement (Second)
of Torts. The instruction submitted by the court is consonant with Pretsky,
supra, Warrem v. Parrish, supra, and Nelson v. Grice, supra, and is a proper
statement of the law of this case.
|||The remaining points raised by plaintiff contain only legal Conclusions,
are vague and abstract, are unpersuasive and do not warrant Discussion.
See Cady v. Kansas City Southern Ry. Co., 512 S.W.2d 882 (Mo. App. 1974);
Butterbaugh v. Public Water Supply Dist. No. 12, 512 S.W.2d 445 (Mo. App.
1974); Rule 84.04. Their review would have no precedential value.
|||The judgment is affirmed.
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