Rubin v. Matthews Intern. Corp.

Decision Date09 January 1986
Citation503 A.2d 694
PartiesDonna L. RUBIN v. MATTHEWS INTERNATIONAL CORP.
CourtMaine Supreme Court

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

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 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 of the corpse, incidents occurring prior to or at burial, or wrongful disinterments. See Whitehair v. Highland Memory Gardens, Inc., 327 S.E.2d 438 (W.Va.1985); see, e.g., Sackett v. St. Mary's Church Soc., 18 Mass.App.Ct. 186, 464 N.E.2d 956 (1984); Lamm v. Shingleton, 231 N.C. 10, 55 S.E.2d 810; cf. Plummer v. Hollis, 213 Ind. 43, 11 N.E.2d 140 (1937) (no recovery for mental distress from breach of contract to have photo made of deceased daughter before burial). Because the unveiling ceremony was removed in time from the plaintiff's mother's death, and did not involve the disposition or mishandling of the body, this case is not encompassed by one of the limited categories where damages for mental or emotional distress have traditionally been awarded.

Rubin alternatively proposes that we not limit ourselves to the narrow exceptions discussed above but that we adopt a broad exception to the general rule precluding such damages in contract actions. She suggests an exception similar to that enunciated in 38 Am.Jur.2d Fright, Shock and Mental Disturbance § 35 (1968) 4:

Damages for mental distress resulting from a breach of contract may be recovered where the contractual duty or obligation is so coupled with matters of mental concern or solicitude or with the feelings 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.

We find the authority cited in favor of such a broadly formulated exception unpersuasive.

For example, the North Carolina Supreme Court, in Lamm v. Shingleton, 231 N.C. at 14, 55 S.E.2d at 812, developed such a rule in an attempt to encompass the various exceptions to the general rule. Despite the broad formulation of the rule therein, the facts of the case--water and mud had entered a casket because the vault had not been locked--limit the rule announced and distinguish it from case before us. The court focused primarily on the mental anguish that one recently bereaved would suffer from the improper handling of a family member's body. Id. at 15, 55 S.E.2d at 813-14. Lamm therefore falls within the established exception for the disposition of bodies and does not persuade us that the exception should be broadened.

In Stewart v. Rudner, 349 Mich. 459, 84 N.W.2d 816 (1957), the Michigan Supreme Court created an exception similar to that adopted in Lamm. Stewart involved the alleged breach of an agreement to perform a Cesarean section delivery, which resulted in the stillbirth of the plaintiff's child. Finding that the plaintiff's complaint stated a cause of action for mental distress damages, the court observed:

When we have a contract concerned not with trade and commerce, but with life and death, not with profit but with elements of personality, not with pecuniary aggrandizement but with matters of mental concern and solicitude, then a breach of duty with respect to such contracts will inevitably and necessarily result in mental anguish, pain and suffering.

Id. at 465-71, 84 N.W.2d at 821-24. Even if we were to adopt such a broad test, we cannot say that the untimely delivery of a memorial stone would "inevitably and necessarily" result in mental anguish. Furthermore, it is clear that the breaching party, Matthews, was in fact concerned with trade and commerce and was acting for the purpose of pecuninary gain.

Rubin also cites the exception developed in Alabama for breach of contract in connection with the construction of a home. See B. & M. Homes v. Hogan, 376 So.2d 667 (Ala.1979). In Hogan, the court, relying on the American Jurisprudence statement of the exception, held that a builder was liable in damages for mental distress experienced by the homeowners. However, the facts, which reveal that a crack in the concrete slab widened and extended throughout the house, causing severe actual damage, again limit the broad formulation of the rule in the construction cases. Furthermore, this exception seems to have been applied by a limited number of states. See B. & M. Homes Annotation, 7 A.L.R.4th 1178 (1981) (only Alabama and Louisiana courts cited as awarding mental distress damages, absent accompanying physical injury, resulting from breach of home construction contract).

California early allowed recovery for mental distress damages in contract actions. See, e.g., Westervelt v. McCullough, 68 Cal.App. 198, 228 P. 734 (1924) (plaintiff allowed mental distress damages suffered as a result of defendant's breach of promise to provide plaintiff a home for duration of plaintiff's life). Although Westervelt involved physical suffering resulting from mental distress, the California court, relying on contract cases...

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