Gadbury v. Bleitz

• Citation: 133 Wash. 134,233 P. 299
• Decision Date: 24 February 1925
• Docket Number: 18968.
• Parties: GADBURY v. BLEITZ.
• Court: United States State Supreme Court of Washington

233 P. 299

133 Wash. 134

GADBURY v. BLEITZ.

No. 18968.

Supreme Court of Washington

February 24, 1925

Department 1.

Appeal from Superior Court, King County; Chapman, Judge pro tem.

Action by Mary Gadbury against J. J. Bleitz, doing business as the Bleitz Undertaking & Cremation Company. From judgment for defendant, plaintiff appeals. Reversed, with directions.

Wright Froude, Allen & Hilen and Egan & Moriarty, all of Seattle for appellant.

Byers &amp Byers, of Seattle, for respondent.

ASKREN J.

This is an action for personal injuries alleged to have been sustained by plaintiff in January, 1922. The cause was tried to a jury, and at the close of plaintiff's case an order of dismissal was entered by the trial court. The facts, as shown by the plaintiff's witnesses are substantially as follows:

The plaintiff is the mother of one Theodore Gadbury, who died on December 20, 1922. The plaintiff engaged the defendant, who is in the undertaking business, to conduct the funeral and cremate the body. The funeral was held on December 24, at the funeral parlors of the defendant, and the charge therefor, to wit, $170, was afterwards paid. Approximately 15 months prior to this time the plaintiff's son-in-law, one Ed Shifty died while on a visit to the plaintiff's home, and the defendant had charge of the funeral, the agreement with respect to the funeral and the charge therefor being made by the plaintiff's daughter, the wife of the deceased Shifty. Approximately two weeks after the funeral of Theodore Gadbury, and after the fee therefor had been paid in full by plaintiff, James Bleitz, son of the defendant, came to plaintiff's home and told her that his father had sent him to collect for the Shifty account, and upon being told that the plaintiff did not consider she was responsible for the account, he notified her that they were holding the body of her son, and that they would continue to hold it until the bill was paid. The plaintiff at that time thought her son had already been cremated, and had just begun to recover from the grief occasioned by the loss. Upon receiving this information, her condition became so aggravated that she became sick and lost some 10 or 15 pounds in weight, and the shock materially affected her health. Word was sent to another son who, in company with other relatives, went to the parlors of the defendant and there questioned defendant about the matter, and he then stated that he was holding the body for the payment of the Shifty account, and that it was his intention to hold it until the account was paid. After some conversation, the defendant finally agreed to cremate the body, which was thereafter done.

Upon this state of facts, the court held that there was not sufficient evidence to take the case to the jury. The decision was based upon the ground that damages are not recoverable for mental suffering unaccompanied by physical violence, occasioned by the negligence of another. That this is the rule in this state cannot be doubted. We have so held in Corcoran v. Postal Telegraph-Cable Co., 80 Wash. 570, 142 P. 29, L. R. A. 1915B, 552, and Kneass v. Cremation Society of Washington, 103 Wash. 521, 175 P. 172, 10 A. L. R. 442. However, we have adopted the rule that if such suffering is the direct result of a willful wrong as distinguished from one that is merely negligent, then there may be a recovery. Wright v. Beardsley, 46 Wash. 16, 89 P. 172. This is a well-established exception recognized by modern text-writers. 17 Corpus Juris, 831, lays down the rule as follows: 'The general rule, supported by the weight of authority, is that mental pain and suffering will not alone constitute a sufficient basis for the recovery of substantial damages. Certain exceptions to this rule are recognized in actions for breach of contract of marriage, and certain cases of willful wrong, especially those affecting the liberty of person, security, character or reputation, or domestic relations as the ordinary, natural and proximate consequence of the wrong complained of.'

8 Ruling Case Law, 531, states it in this manner:

'In case of willful or wanton wrongs and those committed with malice and an intention to cause mental distress damages are, as a general rule, recoverable for mental suffering, even without bodily injury, and though no pecuniary damage is alleged or proved. And in general, damages for mental anguish or suffering are recoverable where the act complained of was done with such gross carelessness or recklessness as to show an utter indifference to the consequence when they must have been in the actor's mind.'

It is unnecessary to state all the reasons for the rule, or to attempt to draw a distinction between the many cases cited in the briefs, for an examination of them will show...