Gautier v. General Tel. Co.

• Decision Date: 11 May 1965
• Citation: 234 Cal.App.2d 302,44 Cal.Rptr. 404
• Court: California Court of Appeals Court of Appeals
• Parties: , 60 P.U.R.3d 34 Howard P. GAUTIER and Esther Gautier, Plaintiffs and Appellants, v. GENERAL TELEPHONE COMPANY, Defendant and Respondent. Civ. 28683.

Page 404

44 Cal.Rptr. 404

234 Cal.App.2d 302, 60 P.U.R.3d 34

Howard P. GAUTIER and Esther Gautier, Plaintiffs and Appellants, v. GENERAL TELEPHONE COMPANY, Defendant and Respondent.

Civ. 28683.

District Court of Appeal, Second District, Division 1, California.

May 11, 1965.

Hearing Denied July 7, 1965.

Fredric Bettin, Pasadena, for appellants.

Crider, Tilson & Ruppe and Abe Mutchnik, Los Angeles, for respondent.

LILLIE, Justice.

This is an appeal from a judgment of dismissal after the court had sustained without leave to amend defendant's demurrer to plaintiffs' fourth amended complaint.

The pleading attempts to state eight causes of action against defendant company. Count I, purportedly for breach of contract, alleges in part that from August 5, 1961 'to date,' certain persons called plaintiffs by telephone and were advised by the defendant that plaintiffs' telephone was disconnected; that plaintiffs were subscribers of defendant telephone company, and that they demanded service and had paid all charges for their services and tolls; that although the urgency of such calls was explained to the operator the same reply was forthcoming, and such calls were not allowed to be transferred to the plaintiffs. It is then alleged that 'said contract was entered into in Los Angeles County, California, but the date and whether the contract is written or oral is unknown to each plaintiff, but known to defendant, but for the purposes of this pleading will be claimed to be oral.' It is further alleged that said acts or omissions proximately caused harm or emotional distress, inconvenience, and humiliation to each plaintiff, and exposed each plaintiff to public contempt and ridicule, to their damage in the sum there and then set forth.

For more than one reason the demurrer was well taken. To state a cause of action for breach of contract, it is required that there be a pleading of the contract, plaintiffs' performance (or excuse for nonperformance), defendant's breach, and damage to plaintiff therefrom. (Banducci v. Sresovich, 52 Cal.App. 637, 199 P. 72.) The allegations contained in Count I do not set out the actual terms of the contract, either in haec verba or in legal effect. If, as plaintiffs allege, they are ignorant as to whether the contract is written or oral, the law nonetheless requires that there be an allegation of such verbal agreement by setting forth the substance of its relative terms. Since plaintiffs have failed to comply with any of these requirements, the pleading understandably neglects also to state facts which assertedly constitute the defendant's breach. Thus, no facts are pleaded which set forth in what respect defendant's asserted statement to certain persons that plaintiffs' telephone was disconnected constituted a breach of the contract in suit. Too, not only must the facts constituting the defendant's breach be stated with certainty, but there must also be an allegation that the damage to plaintiffs resulting therefrom is legally actionable. The present pleading states that defendant's omissions or acts proximately caused emotional distress, inconvenience, and humiliation to the plaintiffs, and exposed them to public contempt and ridicule; but in a breach of contract action the plaintiff is not entitled to damages for injury to his (or her) name, character or personal reputation. (Walpole v. Prefab Mfg. Co., 103 Cal.App.2d 472, 489, 230 P.2d 36.) The case just cited makes reference to Westwater v. Rector, etc., of Grace Church, 140 Cal. 339, 73 P. 1055, where it was held that in an action for breach of contract a plaintiff cannot recover damages for injury to her reputation. The Westwater case, in turn, points out that under sections 3300 and 3301 of the Civil Code the measure of damages for the breach of an obligation arising from contract 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. Since these statutes further provide that no damages not clearly ascertainable both in their nature and origin can be recovered in a breach of contract action, the Supreme Court held that injury to the plaintiff's health, feelings or reputation, could not be proximately caused by wrongful discharge, 'nor would it be likely to result in the ordinary course of things.' (p. 342, 73 P. p. 1056.)

Count II is for the asserted 'breach of implied warranties.' In this connection, it is alleged that each plaintiff purchased and said defendant sold telephone services for the purpose and with the understanding that said services would be satisfactory for the normal and customary use thereof; that said services were not fit and suitable for ordinary use; that said conduct or omissions of said defendant interfered with plaintiffs' use and quiet enjoyment of said property and services; that as a proximate result of said conduct or omissions, plaintiffs have suffered harm or emotional distress, inconvenience and humiliation. The ruling on the demurrer as to this count was likewise correct. It is now settled in California that an action for breach of implied warranty will not lie where there has not been a sale of chattels but only the furnishing of services. In Gagne v. Bertran, 43 Cal.2d 481, 487, 275 P.2d 15, 20, the court stated: '[The defendant] was not a seller of property who obligated himself as part of his bargain to convey property in the condition represented. * * * Thus the general rule is applicable that those who sell their services for the guidance of others in their economic, financial, and personal affairs are not liable in the absence of negligence or intentional misconduct.'

In Count III it is alleged that defendant 'negligently' failed to transmit certain telephone calls to plaintiffs. One related to unexpected surgery on the brother of plaintiff Howard Gautier in Missouri--as a result the latter was unable to be with his brother at the time as planned; a second concerned the same brother's death in Florida, and plaintiffs could not attend the funeral 'had they so desired'; other phone calls mentioned in this count were of a business nature and originated in Massachusetts. Although one of the essentials of actionable negligence is injury resulting from the breach of defendant's duty, and this must be pleaded (Palmer v. Crafts, 16 Cal.App.2d 370, 375, 60 P.2d 533), no compensatory damages (other than emotional distress) are set forth with respect to any of the above assertedly negligent acts. The pleading is fatally defective for that reason. In California there can be no recovery for emotional distress unaccompanied by physical harm arising from acts solely negligent in nature. (Espinosa v. Beverly Hospital, 114 Cal.App.2d 232, 249 P.2d 843.) Nothing is alleged in the complaint as amended about consequent physical suffering, the charging paragraph as to damages reciting in part that 'said conduct or omissions herein mentioned have proximately caused him [sic] harm or great emotional distress, inconvenience and humiliation to each plaintiff, and has exposed each plaintiff to public contempt and ridicule * * *.' Sloane v. Southern Cal. Ry. Co., 111 Cal. 668, 44 P. 320, 32 L.R.A 193, is relied on by plaintiffs, which case is referred to in Amaya v. Home Ice, Fuel & Supply Co., 59 Cal.2d 295, 299, 29 Cal.Rptr. 33, 35, 379 P.2d 513, 515, as dealing 'with the analytically different question of whether 'nervous disturbance' caused by fright or shock 'was a suffering of the body or of the mind' * * *.' There is language, particularly in the dissent (p. 325, fn. 5, 29 Cal.Rptr. 33, 379 P.2d 513), which appears to be at variance with the result reached in Espinosa; but neither Amaya nor Acadia, California, Ltd. v. Herbert, 54 Cal.2d 328, 5 Cal.Rptr. 686, 353 P.2d 294, make mention of Espinosa, nor has it ever been disapproved. A hearing by the Supreme Court in Espinosa having been denied, 'Its judgment stands, therefore, as a decision of a court of last resort in this state, until and unless disapproved by this court * * *.' (Cole v. Rush, 45 Cal.2d 345, 351, 289 P.2d 450, 453, 54 A.L.R.2d 1137.)

Count IV is captioned 'Emotional Distress,' which is not in itself a tort but a form of injury resulting from tortious conduct. The charging paragraphs of Counts I and III are incorporated by reference. Having determined that the allegations in those counts...