Brown v. Fritz

BAKES, Justice,

concurring in part and dissenting.

The central question presented by this appeal is whether the trial court erred by instructing the jury on the issue of negligent infliction of emotional distress. Insofar as the majority holds that this instruction was error since a cause of action for *366 negligent infliction of emotional distress is not recognized in Idaho, I concur. Regarding the question of whether damages for emotional distress may be awarded in an action for breach of contract, Idaho has adopted the Restatement of Contracts view. See Hatfield v. Max Rouse & Sons Northwest, 100 Idaho 840, 847 , 606 P.2d 944, 951 (1980). Specifically,

"In actions for breach of contract, damages will not be given as compensation for mental suffering, except where the breach was wanton or reckless and caused bodily harm and where it was the wanton or reckless breach of a contract to render a performance of such a character that the defendant had reason to know when the contract was made that the breach would cause mental suffering for losses other than mere pecuniary loss.” Restatement of Contracts § 341 (1932).

Under what circumstances Idaho courts recognize intentional infliction of emotional distress, a more difficult question, is an issue which need not be addressed here, since the issue has not been raised in this appeal.

However, I cannot agree with the majority’s conclusion that the trial judge’s decision to instruct the jury on negligent infliction of emotional distress indicates that the trial judge believed the defendant’s conduct to be outrageous. The record reflects otherwise. During the conference on the proposed negligent infliction of emotional distress instruction, the judge stated:

“[I]t appears to me that there is sufficient evidence at least for a jury question at this point to submit the matter to the jury, and I am not unmindful of the fact that the court has the power through judgment notwithstanding the verdict and so forth to correct errors if any should be committed. I don’t mean by that I am expressing an opinion it should or shouldn’t be granted, but I realize it’s a tough field of the law, but we do have all this evidence in and I think the jury might be able to conclude that there is some area where they could grant it.

“It seems to me it’s a real close question but we had some evidence in there about sewer gas and some of those things that may possibly have created this situation. I’m going to go ahead and instruct on it.”

The trial judge’s comments indicate that he had serious reservations about whether there was even sufficient evidence of negligence to instruct on negligent infliction of emotional distress. Accordingly, I cannot agree with the majority’s conclusion that the defendant’s behavior was necessarily outrageous enough to justify remand on the issue of punitive damages — particularly since this conclusion is counter to the trial judge's stated view:

“I do not believe that the evidence in this case is sufficient for the jury to believe that the Fritzes acted with an extremely harmful state of mind, and I believe to grant punitive damages in this case would ignore the Supreme Court’s mandate that punitive damages are to be awarded rarely and would ignore the mandate that they are not favored in the law.”

Finally, I am perplexed, as I am sure the parties will be, that the majority has chosen to address the punitive damages issue at all. It was not asserted to be an issue on appeal by either party and was neither briefed nor raised at oral argument, and is thus not before this Court. Our rule against deciding issues on appeal not raised by the parties was described by Justice Bistline in State v. Nield, 106 Idaho 665, 669 , 682 P.2d 618 (1984), as:

“A principle so well-established as to be unneedful of citation is that an appellate court, including (one would like to think) *367 a state’s supreme court, will not consider issues in the abstract, and certainly not issues which are attempted to be raised for the very first time.” 106 Idaho at 669 , 682 P.2d at 622 .

In civil actions 1 the Court has regularly held that, both under earlier statutes and more recently under the rules of appellate procedure, a party who does not raise an issue before the trial court, or who on appeal does not assert an issue as error on appeal, has waived that issue, and the issue will not be considered by this Court. 2 Cox v. Stolworthy, 102 Idaho 714 , 639 P.2d 12 (1981); Mollendorf v. Derry, 95 Idaho 1 , 501 P.2d 199 (1972); Baldwin v. Ewing, 69 Idaho 176 , 204 P.2d 430 (1949).

. While the same rule generally applies in criminal proceedings, under certain limited situations in criminal proceedings an issue not raised before the trial court, nor raised as an issue on appeal, will be considered. Thus, in State v. Lopez, 98 Idaho 581 , 570 P.2d 259 (1977), the Court, in interpreting the then Idaho Criminal Rule 12 which required all defenses and objections which can be determined without a trial to be raised prior to trial, except those defenses which assert that the indictment or information “fails to show jurisdiction of the court or to charge an offense.which objection shall be noticed by the court ... [at] any time during the pendency of the proceedings," held that “the defense, of failure to charge an offense may also be raised at any stage of the proceedings, whether the proceedings are before the trial court or before an appellate court, and may be raised either by the parties or the Court upon its own initiative.” State v. Lopez, 98 Idaho at 585 , 570 P.2d at 262 . Again in State v. Mowrey, 91 Idaho 693 , 429 P.2d 425 (1967), Justice Spear, speaking for a unanimous Court and quoting from the case of Hopkins v. Barnhardt, 223 N.C. 617 , 27 S.E.2d 644 (1943), stated:

“When there is a defect of jurisdiction, or the complaint fails to state a cause of action, that is a defect upon the face of the record proper, take notice, and when such defects appear the take notice and when such defects appear the Court will ex mero motu dismiss the action.” 91 Idaho at 695 , 429 P.2d at 427 .

In State v. Lopez, supra, the plurality opinion, following this Court’s opinion in State v. McMahan, 57 Idaho 240 , 65 P.2d 156 (1937), held that failure to set out the victim of the crime in the information denied the defendant of due process because of the failure to allege the “particulars of time, place, person and property as to enable the defendant to understand distinctly the character of the offense complained of ....” Lopez, 98 Idaho at 584 , 570 P.2d at 262 .

. Justice Bistline, in his special concurring opinion, returns to a recurring theme that Cox v. Stolworthy, 94 Idaho 683 , 496 P.2d 682 (1972), and Jolley v. Puregro, 94 Idaho 702 , 496 P.2d 939 (1972), were "companion cases” in which the Court voluntarily, and without the issue being raised by the parties, established new punitive damages standards. See Cheney v. Palos Verdes Inv. Corp., 104 Idaho 897 , 665 P.2d 661 (1983) (Bistline, J., specially concurring). Justice Bistline writes, “[W]hen Justice McFadden authored Cox v. Stolworthy, Justice Bakes was also authoring Jolley v. Puregro,.... The opinions in the two cases were released within seven days of each other." Ante at 1379.

However, Cox v. Stolworthy and Jolley v. Puregro were not companion cases, nor were they cases which were jointly considered. Cox v. Stolworthy was argued and submitted for decision on September 10, 1971. At that time the members of this Court included Chief Justice McQuade, Justices McFadden, Donaldson, Shepard and Spear. (Justice Spear did not sit on the Cox case, District Judge John Maynard sitting in his place. Shortly thereafter, Justice Spear retired and was later succeeded on the Court by Justice Bakes, who was appointed on December 30, 1971, nearly four months after Cox was argued and submitted.)

Jolley v. Puregro, supra, on the other hand, was argued on January 4, 1972, four months after the Cox v. Stolworthy case was argued and taken under consideration by the Court on September 10, 1971. The Jolley v. Puregro Court, which consisted of two different judges than the Cox panel, did not independently re-evaluate the standards set down in Cox v. Stolworthy, but merely applied the Cox standards to the facts of the Jolley case based upon appellant Puregro’s allegation that no punitive damages should have been awarded under the circumstances of that case. The Jolley v. Puregro Court upheld the trial court’s award of punitive damages, based upon the law which this Court had previously enunciated in Cox v. Stolworthy.