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District Court of Appeal, First District, Division 2, California.


Civ. 13420.

Decided: January 14, 1948

J. W. Coleberd, of South San Francisco, and R. A. Rapsey, of San Bruno, for appellant. Melvin M. Belli, Jonathan H. Rowell and Laurenz Krueger, all of San Francisco, for respondent.

This is an appeal from a judgment after jury verdict in favor of plaintiff awarding $10,000 general damages and $900 exemplary damages for breach of defendant's contract to embalm the body of plaintiff's mother.

The complaint alleged that defendant Nieri was a licensed funeral director and undertaker in San Mateo County, engaged in practicing his profession in South Francisco; that defendant Johnson was similarly qualified and was an employee of defendant Nieri; that Caroline Chelini, mother of plaintiff, died in San Francisco December 11, 1943; that on or about December 15, 1943, plaintiff made an oral agreement with defendant Nieri whereby defendant agreed to prepare and embalm the remains of Caroline Chelini in a good and workmanlike manner, and to do all things necessary for properly embalming said remains, including the supplying of a metal casket and to perform all services and do everything essential for properly depositing said remains in a crypt in Cypress Lawn Memorial Park; that plaintiff agreed to pay Nieri therefor the sum of $900, which was paid on or about December 15, 1943 as provided; that defendant Nieri without the knowledge or consent of plaintiff engaged defendant Johnson to embalm the remains of Caroline Chelini, and the defendant Johnson did embalm said remains; that defendants performed the services and supplied the materials so negligently, unskillfully and carelessly, and wilfully that the remains of Caroline Chelini developed into a ‘rotted, decomposed and insect and worm infested mass'; that such acts were in breach and violation of the oral contract; that plaintiff was thereby specially damaged in the sum of $900, the amount paid to defendant Nieri; that plaintiff discovered the condition of the remains of his mother July 13, 1945, and as a direct and proximate result of such discover, plaintiff became ‘immediately inflicted with a serious impairment of his heart and circulatory system’, which he alleges is incurable and permanent; that immediately upon the discovery of the facts herein alleged and as a proximate result thereof, plaintiff became ill, suffered nervous fatigue, lost weight and became subject to fainting spells; that prior to said discovery plaintiff was a healthy and normal person not subject ‘to heart afflictions or any of the symptoms or results thereof, or to fainting spells, or and of said other conditions.’

At the opening of the trial defendants' motion to have plaintiff elect against which defendant he would proceed was granted and plaintiff elected to proceed against defendant Nieri.

Plaintiff testified that his mother died Saturday December 11, 1943 at his home in San Francisco at the age of 99 years, 7 months. He called defendant Nieri, a South Francisco undertaker and a personal friend of plaintiff, who came to the home accompanied by his embalmer, Mr. Johnson. Plaintiff informed defendant that his mother wished to be buried where no ants or other bugs could get at her. He told Nieri that he had $1,500 of his mother's money which he intended to put into her funeral, that he wanted the best embalming and a hermetically sealed casket, that he intended to place his mother's remains in a sealed lead box which he himself would make after the war, and pending such time her remains were to be placed in a crypt. They talked about the embalming and to plaintiff's inquiry as to how long the body could be preserved, defendant replied ‘Practically forever. We got a new method of embalming that we will put on her, and it will keep almost forever.’ Plaintiff asked if that wasn't a long time, to which defendant replied, ‘They embalmed Caruso, and they embalmed Lincoln that way, * * * and we have a new method of embalming * * * We can do a first class job, and she will keep almost forever.’ The following day plaintiff and his wife called at the Nieri's undertaking establishment to select a casket. Having agreed with his wife that a certain metal casket was the most attractive, plaintiff asked defendant if it was a hermetically sealed casket. Defendant, he asserted, replied, ‘Oh, yes, that is the finest thing there is, that is a bronze casket’. Defendant told him that the casket with the cost of the entire funeral expenses included would be $875. Plaintiff who was a skilled mechanic, admitted that at the date when he picked out the casket he knew what ‘hermetically sealed’ meant, but maintained that he was so grief stricken that he believed defendant's statement and did not examine the casket's construction.

After his mother was placed in the crypt in Cypress Lawn Memorial Park, plaintiff made numerous visits to the cemetery. Five months after the funeral he noticed ants around the crypt. The cemetery attendants assured him that the insects came from the flowers and had them sprayed, but on later visits he again noticed the ants. He talked to Nieri about it, and he assured him, plaintiff testified, that his mother was in a hermetically sealed casket, that she would last practically forever. Plaintiff finally had the casket opened in the presence of his wife, family doctor, defendant's embalmer Johnson, and a cemetery official. The remains were badly decomposed. That night plaintiff felt ill, got up with a sensation of terrific pressure, lost his balance and fell, cutting his face. The next day he went to his doctor, who found plaintiff's blood pressure to be 230, advised him not to work, and prescribed medicine and diet.

Defendant Nieri testified that nothing was said about placing the body in a temporary resting place and moving it later. The arrangements in the beginning had been for burial in Holy Cross Cemetery, and on Monday the undertaker was informed by plaintiff that he had changed the burial arrangements from Holy Cross to Cypress Lawn Cemetery. The death notices, defendant testified, had already appeared designating Holy Cross Cemetery as the place of burial and scheduling the funeral from Epiphany Catholic Church. Nieri said that plaintiff told him on Monday, December 13, that the church arrangements for the funeral were cancelled, as he had learned that since he was a divorced man he could not be buried in Holy Cross Cemetery with his mother. Defendant testified that plaintiff had not demanded a hermetically sealed casket.

Defendant's embalmer, Johnson, testified in detail as to the procedure followed in embalming the body of plaintiff's mother. The dean of the San Francisco College of Mortuary Science stated that the procedure followed by Johnson was intelligent and skillful. This expert stated that no embalmer could make a prediction as to how long any body would remain in a state of preservation due to the many factors entering into decomposition, and the condition of a body whether a day, a month, or a year after embalming, in no way indicates anything in regard to the propriety of the procedure used, as there are cases where severe decomposition sets in 24 hours after the most thorough type of embalming. Four other embalmers also approved the procedure used by Johnson. O'Neill, the embalmer who testified for plaintiff stated that since he had not seen the body of plaintiff's mother, he could not say whether or not proper procedure was used, nor could he say that any decomposition found in the body of plaintiff's mother after 19 months entombment was due to lack of proper embalming.

Respondent pleaded an oral contract and alleged a breach of this contract in performing the embalming so negligently, carelessly and wilfully that the body deteriorated. None of respondent's witnesses offered any proof that the embalming procedure was not carried out with skill and care. Appellant's expert witnesses testified that the embalmer's procedure conformed to the highest standards as practiced by the profession in the community. As noted above, plaintiff's expert would not venture an opinion whether or not proper procedure was used without having seen the body. Appellant contends, therefore, that respondent has failed to prove the essential allegations of his complaint, in that the evidence will not sustain proof of a breach of contract, no negligence having been shown. However, there is an allegation that the contract was ‘wilfully’ breached. Appellant Nieri testified that he had no intention of attempting to have the body embalmed except in the usual way so that it would be properly preserved during the period required for the funeral, that no special instructions were issued to Johnson advising him that this case was different from any other. He produced experts to prove that it is impossible to guarantee preservation of a body for a long period of time. He denied, of course, that he made a contract to preserve the body for any period longer than that required in the case of an ordinary funeral. But if the jury found the terms of the contract in accordance with plaintiff's evidence, than there was sufficient evidence of breach in Nieri's admissions that he did not intend to embalm this body in a manner different from the usual procedure, and in Johnson's testimony that no special instructions were issued to him in regard to the body.

Appellant complains that although the plaintiff in his amended complaint alleges a breach of contract to properly embalm the body of his mother and to furnish a metal casket, he endeavored in his testimony to make it appear that the contract was to preserve the body for some long period of time and to furnish a hermetically sealed casket. He contends that the ruling of the court was erroneous in admitting evidence to the effect that respondent requested and appellant agreed to furnish a hermetically sealed casket, and although it is not clear from appellant's brief why the ruling is considered prejudicial, we assume that appellant is complaining of a material variance between pleading and proof. It is true such variance can be prejudicial where there is surprise and where the adverse party has been misled or handicapped in preparing his case. As was said in Swanson v. Hempstead, 64 Cal.App.2d 681, at page 683, 149 P.2d 404, at page 405: ‘Where * * * the judgment rests upon the determination of issues which were neither foreshadowed by the pleadings nor understood by the parties to be in dispute at the trial, and which determination is the result of one party's failure to produce evidence of whose need he has had no warning, we have a case where the departure from the pleadings may not be merely technical, but substantial, resulting in a miscarriage of justice.’

In the instant case when appellant's objection to the admission of evidence of a hermetically sealed casket was overruled, he made no further attempt to keep out such testimony. He did not advise the court that he was surprised or prejudiced, that he would be handicapped in his defense, nor did he ask for a continuance in view of this unforeseen development. From his conduct, we can only infer that he was raising a technical objection and was not in fact surprised. The same may be said in regard to his argument against admission of testimony of an agreement for preservation of the body for a long period of time. Such an embalming contract is certainly highly unusual, and an allegation to the effect that defendant had agreed to embalm the remains in a good and workmanlike manner and do all things necessary for properly depositing said remains in a crypt, ordinarily would not advise a defendant that he was being charged with a failure to embalm a body so as to insure permanent preservation. However, at the trial, appellant did not contend that he was prejudiced by the admission of such testimony. Nowhere in his brief does he argue that he was unprepared for such a development or that the court deprived him of an opportunity to secure the necessary evidence to meet the case presented by respondent. Appellant, having denied the making of a contract for permanent preservation, produced several embalmers as expert witnesses to testify that undertakers did not enter into such contracts, and that it was impossible for an embalmer in good faith to guarantee the preservation of a body for any considerable length of time. Appellant does not contend that he would have prepared his defense differently had the complaint been more specific in describing the type of metal casket and the type of embalming contracted for, or had it been so amplified by amendment. ‘It must appear from the record that the error, improper ruling, or defect was prejudicial and caused substantial injury before the judgment rendered may be reversed or be held to be affected by it; and it must further appear that a different result would have been probable if such error, ruling, or defect had not occurred or existed. * * *’ (Murnane v. Le Mesnager, 207 Cal. 485, 279 P. 800, 804; Meier v. Meier, 71 Cal.App.2d 502, 162 P.2d 950; Code Civ.Proc., secs. 475, 469; Calif.Const. sec. 4 1/2 art. VI.)

Appellant asserts that error was committed in the admission in evidence of plaintiff's exhibit No. 2, an except from the rules and regulations of Cypress Lawn Memorial Park: ‘9–D. No remains will be allowed to remain in the Receiving Vault unless they are in a hermetically sealed casket.’ Assuming the admission was error, no prejudice resulted, since appellant produced as a witness an employee of Cypress Lawn who testified that rule 9–D was not in force in December 1943, and that during the war period Cypress Lawn accepted caskets in the receiving vault crypts that were not hermetically sealed.

Respondent alleged in his amended complaint that as the direct and proximate result of the discovery of the condition of his mother's remains, be became immediately afflicted with a serious impairment of his heart and circulatory system, and that such injury is permanent. Appellant states that although respondent testified that he had been a healthy normal person prior to the discovery, and suffered from high blood pressure immediately thereafter, he made no proof of impairment to his heart or circulatory system, nor did he prove that his permanent condition of high blood pressure resulted from his inspection of the remains after their removal from the crypt. It is true that the medical testimony offered by expert witnesses for both appellant and respondent leads to only one conclusion—that the permanent condition of high blood pressure is not known to be caused by sudden shock. Both doctors agreed that respondent was suffering from high blood pressure, and the testimony of respondent's own physician seems to establish that the shock was not the cause of this permanent condition. But granting that the proof fails to establish that respondent's condition of high blood pressure was originally caused by the stock, if there is evidence from which the jury might have found aggravation of a preexisting condition which caused permanent injury, the recovery may be had. Both doctors agreed that shock can cause temporary elevation of the blood pressure. Such temporary elevation would no doubt carry possibility of greater injury to a person with abnormally high blood pressure than to one with normal pressure. Respondent's physician testified that such a shock ‘would exaggerate his condition considerably’, that it ‘would do him no good’ and ‘would accentuate his trouble’. On redirect examination respondent's physician was asked: ‘The high blood pressure that is incident to shock, and also what you call cerebral spasm—that does leave definite impairment on the circulatory system?’ A. ‘It leaves some impairment.’ The medical expert for the defense stated that if respondent were his patient, he would advise him not to work at the present time, and not to have emotional or traumatic shock. There is, therefore, evidence in the record of temporary aggravation of a preexisting condition and evidence from which the jury could have inferred impairment to the circulatory system resulting from such aggravation. The evidence of impairment is, indeed, lacking in detail, and no attempt was made to bring out the extent of the disability attributable to such impairment.

But all these factors are of minor importance in view of the question of the measure of damages which we deem controlling. If respondent had been able to prove the want of professional skill and care in the embalming of the body he would have had an action in tort for negligence. But, as we have said, all the evidence unmistakably proved that the methods used conformed fully with the standards of care in the embalming profession prevalent in the community. Respondent's case is, therefore, not one for negligent misconduct, but one for breach of a special contract to perform a duty outside of and beyond the scope of the prevailing standards of the profession. Thus the instructions complained of relating to the measure of damages go to the very heart of the contest and, since they were prejudicially erroneous they require a reversal of this judgment.

The jury was instructed in the terms of sections 3281, 3282, and 3283 of the Civil Code. Immediately following the reading of these sections, at plaintiff's request an instruction was given as follows:

‘You are further instructed that section 3300 of the Civil Code of California provides as follows:

“Any person injured through the unlawful act or omission of another person is entitled to recover money therefor, which is called damages'.'

Of course section 3300 does not contain any of this language. The court was apparently confused with the provisions of section 32819 Section 3300 is the section applicable here and the measure of damages there outlined should have been given to the jury. It reads: ‘For the breach of an obligation arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom.’

But this section is not complete and it would have been error to have given it without also instructing the jury in the terms of the qualifying section 3358 which reads: ‘Notwithstanding the provisions of this chapter, no person can recover a greater amount in damages for the breach of an obligation than he could have gained by the full performance thereof on both sides, except in the cases specified in the articles on exemplary damages and penal damages, and [* * * exceptions not pertinent here].’ (Emphasis ours.)

Subsequent to the reading of the code sections the court instructed the jury in the following language which appellant attacks as erroneous:

‘You are instructed that in an action such as this the law does not require that there be physical contact with the body of a person to constitute a cause of action for personal injury. When a bodily injury occurs, the law considers the action as one for personal injuries, regardless of the nature of the breach of duty.

‘Therefore, the plaintiff's cause of action here, if any, arises from his relationship to the deceased, and from the effect, if any, of the discovered condition of his mother's body upon the plaintiff personally.

‘You are instructed, if you find that the defendant Nieri, either on the part of himself or through his employee, Johnson, was guilty of an unlawful or negligent act or omission which proximately caused or contributed to the illness or physicial suffering of the plaintiff, Chelini, that such illness or physical suffering amounted and amounts to a personal injury to the plaintiff, even though no physical contact was had between him and the defendant Nieri.’

As we have said the evidence does not sustain the commission of an ‘unlawful’ act. Respondent's whole case rests on the charge that appellant failed to carry out an oral contract to perform a duty in an unusual manner and to guarantee the result. Hence the ‘omission’ referred to in the complaint and in section 3281 of the Civil Code is the foundation of the right of recovery. But such ‘omission’ is the failure to perform the special contract according to its terms. Having elected to instruct the jury on sections 3281 et seq. of the Civil Code, the terms of sections 3300 and 3358 should have been added.

Had the court instructed the jury in the terms of these sections then it would have been proper to interpret them by way of further instructions. In the instant case the court correctly stated the special rule applicable to contracts of the type which plaintiff attempted to prove in an instruction quoting from the case of Westervelt v. McCullough, 68 Cal.App. 198, at page 208, 228 P. 734, at page 738, to the effect that where ‘the terms of a contract relate to matters which concern directly the comfort, happiness, or personal welfare of one of the parties, or the subject-matter of which is such as directly to affect or move the affection, self-esteem, or tender feelings of that party, he may recover damages for physical suffering or illness proximately caused by its breach.’ We see nothing in this rule which conflicts with the above code sections, for if a contract is directly concerned with matters affecting the health, comfort or peace of mind, it is reasonable that the loss of health or continued comfort should be compensable in damages.

The rule of the Westervelt case (a case in which $500 damages were allowed for injuries to health resulting from failure to perform a contract to provide an elderly woman with a home for the remainder of her life) is an application to this type of case of the well recognized rule of Hadley v. Baxendale, 9 Ex. 341, 26 Eng.L. & Eq. 396 [156 Eng.Reprint, 145], that ‘if the special circumstances under which the contract was actually made were communicated by the plaintiff to the defendant, and thus known to both parties, the damages resulting from the breach of such contract, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from the breach of contract under these special circumstances so known and communicated.’ [Emphasis ours.]

However, the court in the present case did not leave it for the jury a determine the question of fact: was this or was this not a contract in which such circumstances were within the contemplation of the parties? Had the jury believed plaintiff's version of the case, such circumstances were within the contemplation of the parties; had they believed defendant's version, then they were not. They were flatly told that it was such a contract, although there was a direct conflict in evidence on this point and following the statement of the rule of the Westervelt case the court went on to instruct ‘that if you find that the defendant Nieri here failed to perform in accordance with the terms of his agreement with the plaintiff, and if you further find that the plaintiff, August Chelini, suffered illness or physical suffering as a proximate result of this defendant's failure to perform his agreement, you may award damages for the plaintiff's illness or physical suffering or both.’ [Emphasis ours]. From this instruction the jury would have to conclude that even if they believed defendant's testimony that the contract was only for the ordinary funeral and no special circumstances had been in the contemplation of the parties, still they must award plaintiff damages to his health proximately resulting from the breach.

The instructions discussed above therefore did not fairly instruct the jury on the subject of damages, and we consider them to have been prejudicially erroneous and misleading to the jury. This in all probability led to a verdict which cannot but appear excessive in view of the very unsatisfactory and insubstantial medical testimony in regard to permanent injury.

Appellant justly complains that it was error to refuse his requested instruction to the effect that exemplary damages could not be awarded in this case. (Mabb v. Stewart, 133 Cal. 556, 65 P. 1085; 8 Cal.Jur. 914, sec. 145.) ‘In general, exemplary damages for breach of contract are not recoverable, and this has been held to be the rule even though the breach complained of be lawful.’ (8 Cal.Jur. 871, 872, sec. 113.) A reading of Section 3294, Civil Code, makes it clear that exemplary damages are not allowed in actions for breach of contract. That section provides that ‘In an action for the breach of an obligation not arising from contract, where the defendant had been guilty of oppression, fraud, or malice, express or implied, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.’ (Emphasis ours). And section 3357, Civil Code, provides: ‘The damages prescribed by this chapter are exclusive of exemplary damages and interest, except where those are expressly mentioned.’ Cases cited from other jurisdictions in support of the award of exemplary damages in breach of contract actions are not authoritative in view of our statute. Nor is the argument based on Overstreet v. Merritt, 186 Cal. 494, 200 P. 11, 16, persuasive. Respondent quotes the following statement: ‘One who in bad faith violates his contract is liable for all damages traceable to the breach, including even those which could not be foreseen at the time of making the contract.’ That case, respondent contends, is comparable to this, and since the tort measure of damages is set forth in the Overstreet case it logically follows that exemplary damages are allowable. Exemplary damages were not involved in the cited case, and although the language quoted by respondent from said case would seem to be a recognition of the tort rule as applicable, the court appears to have applied the well recognized rule of Hadley v. Baxendale, 9 Ex. 341, 26 Eng.L. & Eq. 396, [156 Eng.Reprint 145], which is, incidentally, a contract measure of damages. The recent case of Haigler v. Donnelly, 1941, 18 Cal.2d 674, 117 P.2d 331, very clearly holds that in an action based upon a contractual obligation exemplary damages may not be awarded even though the breach of contract is wilful or malicious. Had the action been based on tort, then of course, such damages might be recovered even though the tort incidentally involved a breach of contract.

It would serve no purpose to discuss the criticisms of other instructions since any error may be avoided on a new trial.

Judgment reversed.

NOURSE, Presiding Justice.

DOOLING and GOODELL, JJ., concur.

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