Lamm v. Shingleton , 231 N.C. 10 ( 1949 )

Barnhill, J.

All the testimony offered by plaintiff tends to show that water and mud entered the vault by reason of the fact the top was not locked to the base at one end at the time of the original interment. She offered no testimony tending to prove that it was not waterproof as represented by defendants.

It is true the evidence offered by defendants is to the effect the vault was securely locked. On this record, however, that testimony is not available to plaintiff on the cause of action for breach of warranty and may not be considered on the question of nonsuit of that cause of action. At the time it was offered; judgment of nonsuit bad been directed, and so that cause was not pending and at issue. As the nonsuit was entered when plaintiff rested, the correctness of the ruling of the court below is to be determined by a consideration of her evidence only. As she offered no proof that the vault was not waterproof when properly locked to the base, the ruling must be sustained.

Indeed, plaintiff’s primary cause of action is grounded on the theory that the vault was not locked at one end. On this record the base of the vault was not dislodged and did not rise. Only one end of the top was forced up by water which entered at the unlocked end. This and the condition thereby produced, as alleged by her, is the basis of her claim to damages for breach of contract of burial.

The first issue submitted required the jury to find that plaintiff’s alleged injuries resulted from the “unlawful, willful negligence and carelessness” of defendants. The charge of the court on this issue was to like effect. In the submission of the issue and in the charge thereon there was error.

On the death of a husband, the primary right to possession of the body and to control of burial is in the widow. 15 A. J. 839, 847; Anno. L.R.A. 1915B 519. She may maintain an action for mutilation of the body. Stephenson v. Duke University, 202 N.C. 624, 163 S.E. 698; Morrow v. Cline, 211 N.C. 254, 189 S.E. 885; Morrow v. R. R., 213 N.C. 127, 195 S.E. 383; Gurganious v. Simpson, 213 N.C. 613, 197 S.E. 163. But here no mutilation is alleged.

This is essentially an action for damages for breach of contract. Plaintiff alleges a contract to furnish a casket and watertight vault and conduct the funeral and inter the body, the breach thereof by failure to lock the vault, and damages resulting from the breach. The further allegation that the defendants’ failure to lock the vault at the time of the burial, as a result of which water and mud entered the vault and forced its top to the surface, was due to their negligence and carelessness does not convert it into an action in tort.

The defendants held themselves out as specially qualified to perform the duties of an undertaker. "When they undertook to conduct the funeral of plaintiff’s deceased husband they impliedly covenanted to perform the services contemplated by the contract in a good and workmanlike manner. Any breach of the duty thus assumed was a breach of the duty imposed by the contract and not by law.

So then, the primary question posed for decision is this: Is. mental anguish an element of damages to be considered by the jury in- air action for the breach of the contract alleged and, if so, must plaintiff show that the' breach amounted to a willful tort ?

“A party to a contract who is injured by another’s breach of the contract is entitled to recover from the latter damages for all injuries and only such injuries as are the direct, natural, and proximate result of the breach or which, in the ordinary course of events, would likely result from a breach and can reasonably be said to have been foreseen, contemplated, or expected by the parties at the time when they made the contract as a probable or natural result of a breach . . .” 15 A.J. 449, sec. 51; 25 C.J.S. 441, sec. 24; Troitino v. Goodman, 225 N.C. 406, 35 S.E. 2d 277; Price v. Goodman, 226 N.C. 223, 37 S.E. 2d 592; Chesson v. Container Co., 216 N.C. 337, 4 S.E. 2d 886; Monger v. Lutterloh, 195 N.C. 274, 142 S.E. 12.

Even so, contracts are usually commercial in nature and relate to property or to services to be rendered in connection with business or professional operations. Pecuniary interest is dominant. Therefore, as a general rule, damages for mental anguish suffered by reason of the breach thereof are not recoverable. Some type of mental anguish, anxiety, or distress is apt to result from the breach of any contract which causes pecuniary loss. Yet damages therefor are deemed to be too remote to. have been in the contemplation of the parties at the time the contract was entered into to be considered as an element of compensatory damages. McCormick on Damages 592, sec. 145; 15 A.J. 599, sec. 182; Anno. 23 A.L.R. 372, 44 A.L.R. 428, 56 A.L.R. 659.

The rule is not absolute. Indeed, the trend of modern decisions tends to leave it in a state of flux. Some courts qualify the rule by holding that such damages are recoverable when the breach amounts in substance to a willful or independent tort or is accompanied by physical injury. 15 A.J. 599, 603; Hall v. Jackson, 134 P. 151. Still others treat the breach as an act of negligence and decide the question as though the action were cast in tort, and thus confuse the issue. Thus, to some extent the courts have modified the common law rule.

In this process of modification a definite exception to the doctrine has developed. "Where the contract is personal in nature and the contractual duty or obligation is so coupled with matters of mental concern or solicitude, or with the sensibilities of the party to whom the duty is owed, that a breach of that duty will necessarily or reasonably result in mental anguish or suffering, and it should be known to the parties from the nature of the contract that such suffering will result from its breach, compensatory damages therefor may be recovered. 15 A.J. 600; McCormick on Damages 592; Warner v. Allen, 34 A.L.R. 1348. In such case the party sought to be charged is presumed to have contracted with reference to the payment of damages of that character in the event such damages should accrue on account of his breach of the contract. Renihan v. Wright, 25 N.E. 822 (Ind.); McCormick on Damages 595.

Thus we have held that such damages may be recovered in an action for breach of contract of marriage, Allen v. Baker, 86 N.C. 91, 41 Am. Rep. 444; Anno. 41 L.R.A. ns 842, and for breach of contract to transmit a death message, Russ v. Telegraph Co., 222 N.C. 504, 23 S.E. 2d 681; Johnson v. Telegraph Co., 175 N.C. 588, 96 S.E. 36; Betts v. Telegraph Co., 167 N.C. 75, 83 S.E. 164, when the meaning or import of the message and the interest of the addressee or beneficiary of the contract is made known to the telegraph company at the time the message is accepted for transmittal. Thomason v. Hackney, 159 N.C. 299, 74 S.E. 1022.

The tenderest feelings of the human heart center around the.remains of the dead. When the defendants contracted with plaintiff to- inter the body, of her deceased husband in a workmanlike manner they did so .with the knowledge that .she was the widow and would naturally and probably suffer mental anguish if they failed to fulfill their contractual obligation in the manner here charged. The contract was predominantly personal in nature and no substantial pecuniary loss would follow its breach. Her mental concern, her sensibilities, and her solicitude were the prime considerations for the contract, and the contract itself was such as to put the defendants on notice that a failure on their part to inter the body properly would probably produce mental suffering on her part. It cannot be said, therefore, that such damages were not within the contemplation of the parties at the time the contract was made. Wright v. Beardsley, 89 P. 172; Renihan v. Wright, supra; Burrus v. Ry., 145 P. 926; Fitzsimmons v. Olinger Mortuary Ass’n., 17 P. 2d 535; Hall v. Jackson, supra; Brown Funeral Homes v. Baughn, 148 So. 154; Loy v. Reid, 65 So. 855; Dunn v. Smith, 74 S.W. 576; McCormick on Damages 592, sec. 145; 15 A. J. 601.

On this record the “willful and intentional tort” doctrine, even,if we should be disposed to adopt it in a proper case, does not apply here so as to bar recovery for the reason that, with us, impairment of health, proximately resulting from a state of nervousness, produced by shock and fright, constitutes a physical injury. Kimberly v. Howland, 143 N.C. 398; Kirby v. Stores Corp., 210 N.C. 808, 188 S.E. 625; Sparks v. Products Corp., 212 N.C. 211, 193 S.E. 31.

The defendants offered evidence tending to show that the cemetery in which the interment was made is the property of the City of.Wilson- and that under the rules and regulations of the cemetery authorities'-interments are made exclusively by agents or employees of the city; that 'while undertakers conduct funerals they are not permitted to and do -hot make tbe actual interment; that they lower the casket or vault into the open grave and leave the rest to the municipal authorities as they are required to do. These are matters in defense which, on proper evidence thereof, must be considered by the jury. In the light of plaintiff’s testimony, they do not compel judgment of nonsuit.

The court below erred in submitting the quoted issue and in its charge thereon. It is therefore necessary that the cause be remanded for trial upon the issues raised by the pleadings. It is so ordered.

New trial.