Brown v. Matthews Mortuary, Inc. , 118 Idaho 830 ( 1990 )

BAKES, Chief Justice,

concurring in part and dissenting in part:

I concur in the result reached by the majority opinion except that portion of Part IV of the majority opinion which concludes that a breach of contract claim existed between Ella Brown and Aultorest.

First, with regard to Part III of the opinion, the majority opinion correctly states that Ella Brown’s “physical manifestations are sufficient to prove an accompanying physical injury to assert a claim for negligent infliction of emotional distress.” I believe this statement is entirely accurate and adequate to resolve the issue with respect to Ella. However, I would not go as far as the majority does and create an exception to the physical injury requirement in cases involving mishandling of a decedent’s remains. There is simply no need to do so in this case. Under Czaplicki v. Gooding Joint School Dist., 116 Idaho 326, 775 P.2d 640 (1989), this Court’s most recent pronouncement in the area of negligent infliction of emotional distress, we made clear that allegations of physical injury, such as those furnished by Ella in her deposition, are sufficient to preclude a motion for summary judgment. The holding of the trial court with respect to Ella should be reversed based on Czaplicki, not by creating a new rule of law. Where the existing law is sufficient to cover the situation, no good purpose is served by expanding the law; rather, the law only becomes more complex and unsettled.

In Part IV of its opinion, the majority holds that Ella may sue both Matthews Mortuary and Aultorest for breach of contract. I agree that Mrs. Brown has a breach of contract claim against Matthews Mortuary. However, Mrs. Brown had no contact whatsoever with Aultorest.

The majority reasons that Aultorest accepted the body of Charles Brown for cremation and was paid for its services and concludes that the receipt of the body and payment are “prima facie evidence that a contract existed between Mrs. Brown and Aultorest.” Ante at 45. The record reveals that Aultorest received the body from and was paid by Matthews Mortuary, not Mrs. Brown. Aultorest’s contract dealings were with Matthews Mortuary, not Mrs. Brown. A more direct connection between the parties is essential to the existence of a contractual relationship. The cases cited by the Court on page 13 of its opinion are easily distinguished. In each of those cases the spouse or family had a direct personal relationship with the mortuary, similar to that which Mrs. Brown had with the Matthews Mortuary here. In fact, the holding in Lamm v. Shingelton, 231 N.C. 10, 55 S.E.2d 810 (1949), explicitly requires a direct contractual relationship between the plaintiff and the undertaker. As stated in Lamm, “A party to a contract who is injured by another’s breach of the contract is entitled to recover from the latter____” 55 S.E.2d at 812 (emphasis added). However, there was no such contract relationship with Aultorest by Mrs. Brown. They had no contacts and no dealings. Aultorest performed a contract service for Matthews Mortuary, not Mrs. Brown, and in the absence of a claim of third party beneficiary, of which there is none in this case, there is no basis for a contract claim by Mrs. Brown against Aultorest.