503 A.2d 694 (Me. 1986), Rubin v. Matthews Intern. Corp.

Citation503 A.2d 694
Opinion JudgeSCOLNIK,
Party NameDonna L. RUBIN v. MATTHEWS INTERNATIONAL CORP.
AttorneyBerman, Simmons & Goldberg, P.A., Jack H. Simmons (orally), Steven D. Silin, Paul D. Macri, Lewiston, for plaintiff. Kelly, Remmel & Zimmerman, Leland N. Chisholm (orally), U. Charles Remmel, Portland, for defendant.
Judge PanelBefore McKUSICK, C.J., and NICHOLS, VIOLETTE, WATHEN, GLASSMAN and SCOLNIK, JJ.
Case DateJanuary 09, 1986
CourtSupreme Judicial Court of Maine

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503 A.2d 694 (Me. 1986)

Donna L. RUBIN

v.

MATTHEWS INTERNATIONAL CORP.

Supreme Judicial Court of Maine.

January 9, 1986

Argued Sept. 18, 1985.

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Berman, Simmons & Goldberg, P.A., Jack H. Simmons (orally), Steven D. Silin, Paul D. Macri, Lewiston, for plaintiff.

Kelly, Remmel & Zimmerman, Leland N. Chisholm (orally), U. Charles Remmel, Portland, for defendant.

Before McKUSICK, C.J., and NICHOLS, VIOLETTE, WATHEN, GLASSMAN and SCOLNIK, JJ.

SCOLNIK, Justice.

The plaintiff, Donna L. Rubin, appeals from an order of the Superior Court (Cumberland County) dismissing her complaint and entering judgment on behalf of the defendant, Matthews International Corporation (Matthews), pursuant to Rule 12(b)(6) of the Maine Rules of Civil Procedure. 1 The plaintiff sought to recover damages for the emotional or mental distress she claims to have suffered as the result of the defendant's failure to make timely delivery of a memorial stone. Her complaint asserts four claims: breach of contract, negligence, negligent infliction of mental distress and intentional infliction of mental distress. On the defendant's motion, the Superior Court dismissed Rubin's complaint for failure to state a claim upon which relief could be granted. We vacate only the court's dismissal of that portion of the complaint that alleges the intentional infliction of mental distress.

In determining whether the lower court erred in granting the defendant's motion to

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dismiss, we consider all well-pleaded material allegations of the complaint as admitted. See Culbert v. Sampson's Supermarkets, Inc., 444 A.2d 433 (Me.1982); Harmon v. Harmon, 404 A.2d 1020 (Me.1979). Those allegations reveal that on February 2, 1984, Donna L. Rubin placed an order with the Memorial Division of Matthews for the design and provision of a memorial stone for her mother's grave. Matthews was notified that the stone was to be provided for an unveiling ceremony scheduled to occur on May 5, 1984. Representatives of Matthews were aware of the religious significance of the event and agreed to have the memorial stone delivered prior to the time for the unveiling. They repeatedly represented in the weeks prior to May 5, 1984, that the memorial stone had been shipped and would be delivered on time to Rubin through Brooklawn Memorial Park in Portland. Matthews was further aware that the delivery of the memorial stone would take at least one week. The stone was in fact not shipped until April 30, 1984, just five days before the scheduled date of the ceremony, and did not arrive on time.

BREACH OF CONTRACT

The first issue presented by this appeal is whether a cause of action exists for the recovery of damages for mental or emotional distress suffered solely as the result of a breach of contract. In a breach of contract action, those damages that were "reasonably within the contemplation of the contracting parties when the agreement was made and which would naturally flow from a breach thereof" may be recovered. Winship v. Brewer School Comm., 390 A.2d 1089, 1095 (Me.1978); Susi v. Simonds, 147 Me. 189, 85 A.2d 178 (1951). As a general rule, courts in other jurisdictions have denied recovery for mental or emotional distress suffered as a result of breach of contract unaccompanied by physical injury. See McClain v. Faraone, 369 A.2d 1090, 1094 (Del.Super.Ct.1977); Stanback v. Stanback, 297 N.C. 181, 187, 254 S.E.2d 611, 617 (1979); Restatement (Second) of Contracts § 353 comment a, at 149 (1981); see generally, 5 Corbin on Contracts § 1076 (1964). On the facts of this case, we decline to adopt a broad exception, as urged by the plaintiff, to the general rule precluding damages for mental and emotional distress in a contract case. We also do not find that the untimely delivery of a memorial stone falls within the existing narrow exceptions to the general rule.

The judicial reluctance to award damages for emotional distress in contract actions is reflected in Restatement (Second) of Contracts § 353:

Recovery for emotional disturbance will be excluded unless the breach also caused bodily harm or the contract or the breach is of such a kind that serious emotional disturbance was a particularly likely result.

Common examples of the second exceptional situation are contracts 1) between carriers and innkeepers and their passengers and guests; 2) for the carriage or proper disposition of dead bodies; and 3) for the delivery of messages concerning death. Id.; see, e.g., Southeastern Greyhound Corp. v. Graham, 69 Ga.App. 621, 26 S.E.2d 371 (1943); Lamm v. Shingleton, 231 N.C. 10, 55 S.E.2d 810 (1949) (breach of contract to conduct funeral and provide suitable casket and vault); SoRelle v. Western Union Tel. Co., 55 Tex. 308 (1881) (failure to deliver message to plaintiff announcing mother's death). 2

Rubin contends that the untimely delivery of a memorial stone falls within the second or third exception concerning death. Assuming without deciding that we recognize these narrow exceptions, the present case does not fall within their parameters. It would strain the exception for disposition

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of bodies and delivery of death messages to include untimely delivery of a memorial stone. Most of the actions in this area of the law, whether sounding in contract or in tort, 3 involve mishandling...

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