Wheeler v. Community Federal Savings & Loan Assoc.

702 S.W.2d 83, 1985 Mo. App. LEXIS 3895
CourtMissouri Court of Appeals
DecidedJune 11, 1985
DocketNo. 48332
StatusPublished
Cited by10 cases

This text of 702 S.W.2d 83 (Wheeler v. Community Federal Savings & Loan Assoc.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wheeler v. Community Federal Savings & Loan Assoc., 702 S.W.2d 83, 1985 Mo. App. LEXIS 3895 (Mo. Ct. App. 1985).

Opinion

DOWD, Presiding Judge.

Trespass Action. Defendants-appellants Community Federal Savings and Loan Association, Charles W. Noel and David T. Mayhew appeal from an adverse judgment entered on a jury verdict awarding plaintiffs-respondents, Billy J. Wheeler, his wife Mary Wheeler and her daughter, Mary Jo Ridings, $500 actual and a total of $100,000 punitive damages for an intentional unlawful entry into the plaintiffs’ home. We affirm.

At the time of the incident, Community Federal held a note secured by a deed of trust on the plaintiffs’ residential property. Also at that time, Community Federal employed Charles Noel as a loan officer. The jury assessed $40,000 and $60,000 punitive damages against Community Federal and Noel, respectively. Daniel Mayhew, a carpenter, actually entered the plaintiffs’ home at the direction of Noel.

Mayhew intentionally entered the plaintiffs’ home on January 11, 1982. On the previous day, the Wheelers and Mary Jo Ridings left their home in Macon County, [85]*85Missouri for Kansas City so Mr. Wheeler could pursue an employment prospect. Mr. Wheeler had been a bulldozer operator with a local coal mining company prior to being laid off in July 1979. During the next two and half years he and his wife worked numerous odd jobs to pay their mortgage and care for Mary Jo who had been confined to a wheelchair with totally debilitating injuries after being injured in a auto accident in 1969. As of January 11, 1982, there were only two mortgage payments in arrears, totaling approximately $727.00.

On the day of the intentional entry, May-hew changed the locks on the Wheeler home as he was directed to do by Noel. Defendants maintain that such actions were necessary to “secure the property” from the severe sub-zero winter weather. Furthermore, they claim their actions stemmed from a belief that the Wheelers had abandoned their home. This belief purportedly resulted from assertions made by Wheelers’ neighbors to Noel. At trial, however, these neighbors, Jim Foley and Roger Koll, denied making such assertions to Noel. We note that defendant, Community Federal, had not foreclosed their deed of trust as of January 11, 1982.

Prior to departing for Kansas City, the Wheelers arranged to have their home watched by their nearest neighbors, the Stroppels. They left keys to the house with both the Stroppels and Elmer Kruel, their brother-in-law.

Kruel was supposed to water the plants and fuel the furnace. On January 13, he unsuccessfully attempted to enter the Wheeler home. He subsequently called the Wheelers in Kansas City to inform them that he believed their locks had been changed. Upon hearing this, Mrs. Wheeler became very upset and nervous. Mrs. Wheeler suffered from attacks of bell’s palsy, a paralysis of the facial nerve that produces distortion of one side of the face. As a result of the emotional distress, of learning of the defendant’s act, her condition activated resulting in a drawing down of the affected eye and a drawing upon the mouth.

After speaking to Kruel, Mr. Wheeler contacted Jim Foley, the prosecuting attorney for Macon County, to notify him of a possible break-in. An investigation revealed that Mayhew had entered the Wheeler home at the direction of Noel on behalf of Community Federal.

On appeal, defendants raise numerous points. They contend that the trial court erred by (1) denying their motion for a directed verdict, (2) admitting evidence as to the emotional distress of Mrs. Wheeler, (3) admitting evidence of the criminal complaint against Mayhew, (4) refusing to strike the punitive damages portion of the verdict, and (5) refusing to grant a new trial for grossly excessive punitive damages, and (6) submitting instructions number 3, 4, 8, 9, 10 to the jury.

Defendants first contend that the court erred in denying their motion for a directed verdict because plaintiffs’ petition fails to state a claim upon which relief can be granted, Rule 55.27(a)(6), in that: (a) the plaintiffs' mortgage was in default giving defendants a right of entry onto the plaintiffs’ property, and (b) the provision of the mortgage granted defendants a right to enter plaintiffs' residence under the particular facts.

In support of point 1(a) defendants cite Pine Lawn Bank and Trust Co. v. M.H. & H. & Inc., 607 S.W.2d 696, 700 (Mo.App.1980) which states as a general rule “a mortgagee after default by a mortgagor has the right to possession of the mortgaged premises for the purposes of applying the rent and profits to discharge of the mortgage debts.” We agree with defendants that Pine Lawn accurately reflects the rights of a mortgagee of a loan in default. However, defendants adduced no evidence indicating their intent to collect any rents and profits from the Wheeler home to discharge the mortgage debt. Moreover, defendants assert as a defense that they acted merely to prevent an impairment of their security by securing the [86]*86Wheeler home from the severe winter weather.

As to point 1(b), defendants’ deed of trust contains certain clauses granting defendants a right of entry (after notice to plaintiffs) for “reasonable entries upon and inspection of the property” or “entry upon the property to make repairs.” Defendants concede that no actual notice was given to plaintiffs prior to defendants’ entry of the premises.

A reasonable entry upon and inspection of the plaintiffs’ property would have revealed steam heat vapors coming from the Wheelers’ furnace, negativing abandonment of the home. Also, no evidence adduced at trial indicates that the Wheeler home was in a state of disrepair. Defendants’ provisions in the deed of trust do not provide them with the right to “secure the property” against inclement weather. Any impairment of their security caused by the harsh winter weather could only have been remedied by an action for waste. Randolph v. Simpson, 500 S.W.2d 289, 292 (Mo.App.1973). See also, 59 C.J.S. Mortgages § 334. Point denied.

For their second point on appeal, defendants contend that mental suffering is not a proper element of damages recoverable in a trespass action. They argue that evidence of the emotional distress of Mrs. Wheeler and resulting physical deformity unfairly prejudiced the jury. We disagree.

The extent of trespasser’s liability for harm can be found in the RESTATEMENT (SECOND) OF TORTS § 162 which reads as follows:

A trespass on land subjects the trespasser to liability for physical harm to the possessor of the land at the time of the trespass or to the land or to his things or to members of his household or to their things, caused by any act done, activity carried on, or condition created by the trespasser, irrespective of whether his conduct is such as would subject him to liability were he not a trespasser.

The law of this state has long been that “a trespasser is liable for such injuries as result naturally, necessarily, directly, and proximately from his wrongful act.” Bouillon v. Laclede Gaslight Co., 148 Mo.App. 462, 129 S.W. 401, 402 (1910); Mollman v. Union Electric Light & Power Co., 206 Mo.App. 253, 227 S.W. 264, 265 (1921). In both Bouillon and Mollman this court permitted recovery for fright and mental anguish caused by a trespasser.

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Bluebook (online)
702 S.W.2d 83, 1985 Mo. App. LEXIS 3895, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wheeler-v-community-federal-savings-loan-assoc-moctapp-1985.