Meyer v. Nottger

• Citation: 241 N.W.2d 911
• Decision Date: 19 May 1976
• Docket Number: No. 2--57195,2--57195
• Parties: Lloyd W. MEYER, Appellant, v. LeRoy L. NOTTGER, d/b/a Nottger Funeral Home, Appellee.
• Court: Iowa Supreme Court

Page 911

241 N.W.2d 911

Lloyd W. MEYER, Appellant, v. LeRoy L. NOTTGER, d/b/a Nottger Funeral Home, Appellee.

No. 2--57195.

Supreme Court of Iowa.

May 19, 1976.

Johnson, Burnquist, Erb, Latham & Gibb, Fort Dodge, for appellant.

Beecher, Beecher, Holmes & Rathert, and Edward J. Gallagher, Jr., Waterloo, for appellee.

Heard by MOORE, C.J., and MASON, REES, UHLENHOPP and REYNOLDSON, JJ.

REES, Justice.

Plaintiff appeals from trial court's order sustaining defendant's motion for summary judgment, dismissing plaintiff's petition and entering judgment for defendant. We reverse and remand for further proceedings.

At the time of commencement of the instant action plaintiff Lloyd W. Meyer (hereafter Meyer) was a resident of Eagle Grove. Defendant LeRoy Nottger (hereinafter Nottger) operated the Nottger Funeral Home in Cedar Falls. The action arose out of the performance by Nottger of funeral services following the death of Meyer's father.

The original petition was filed May 3, 1972, and was subsequently amended by permission of the court. Nottger filed answer and, in February 1974, moved for summary judgment. Hearing on the motion was had February 26. On March 1, trial court sustained Nottger's motion and dismissed Meyer's petition.

The amended and substituted petition was in two divisions. In the first division, Meyer sought recovery in the amount of $50,000 compensatory damages and $30,000 exemplary damages for claimed tortious conduct on the part of Nottger. In the second division, Meyer sought to recover the same amount upon a theory that Nottger breached a contract for the performance of professional services. In each division Meyer alleged he had suffered severe emotional distress, mental anquish and disturbance of mental and emotional tranquility, along with a resulting heart attack, because of Nottger's conduct.

At the time of the ruling upon Nottger's motion for summary judgment, the record before trial court included depositions taken of Meyer, his wife, Nottger, Waldo Jungkunz (Nottger's employee) and Dr. Herbert Gude, M.D., who rendered medical treatment to Meyer. Various interrogatories were also before the court. Trial court concluded in its order that the materials before it contained substantially all the evidence which would be admissible in a trial of the case.

The posture of this appeal requires that we view the facts in the light most favorable to plaintiff, the motion for summary judgment having been filed by defendant. See Swets v. Pruisner, 236 N.W.2d 299, 304 (Iowa 1975). So viewing the materials before the court, and resolving factual disputes in that manner, we may accept the following facts as established for purposes of this appeal.

Louis Meyer, plaintiff's father, was killed in an automobile accident on Thursday, May 7, 1970. Also killed in the accident was the elder Meyer's second wife (plaintiff's stepmother). That evening Mrs. Jones, the daughter of the deceased Mrs. Meyer, contacted defendant Nottger by telephone and instructed him to bring both bodies to his establishment in Cedar Falls in order to make funeral arrangements. This was done.

Plaintiff Lloyd Meyer received word of his father's death Thursday evening. A call for Meyer's wife to Mrs. Jones confirmed that both bodies were at the Nottger Funeral Home.

Mr. and Mrs. Meyer and their son Donald drove to Cedar Falls Friday morning, at which time they met Nottger. Upon discovering Mrs. Jones had been at the funeral home and had wished to be informed of Meyer's arrival, Meyer took Nottger aside for the purpose of explaining that he wished the arrangements for his father's funeral to be separate from those for his father's second wife. At some point during conversations, Nottger represented that Meyer had no choice in the burial arrangements because his father's wife had survived his father in the accident. In fact, Nottger did not know which of the decedents had died first, and had assumed they were killed simultaneously. Finally the parties agreed to a double funeral with separate burials. The bodys of Meyer's father was to be interred in Iowa Falls.

Meyer was informed that Mrs. Jones had already selected a casket for her mother, and that all he had to do, with respect to a casket for his father's body, was to concur in this choice. Nottger told Meyer that, in any event, eh would have to select a sealer casket because the embalming fluid used on his father's body was a very strong formaldehyde solution which produced a harsh and unpleasant odor. Meyer did choose a sealer casket identical to the one chosen by Mrs. Jones. In his later deposition Meyer stated there was nothing wrong with the casket and it was 'very handsome,' but that he objected to the fact he had no choice but to select that particular model. He agreed to the model because it was 'the hormonious thing to do.'

During their discussions with Nottger that Friday, Mr. and Mrs. Meyer suggested that a Mr. Anderson, an Iowa Falls mortician and long-time friend of the Meyer family, could assist with the burial ceremony. Nottger assured them there would be no problem in this regard and asserted he knew Anderson well, that he had started Anderson in the funeral directing business. In fact, Nottger knew Anderson only 'very casually.' Nonetheless, Nottger called Anderson in the presence of Mr. and Mrs. Meyer and apparently discussed some details of the planned burial. Nottger assured the Meyers he (Nottger) would personally go to Iowa Falls to assist with the burial.

Meyer insisted there be a procession from the burial home to the gravesite, in which procession he would directly follow the hearse in his car. Nottger said there would be no problem in Meyer's following the hearse. Nottger also agreed that Meyer would select the pallbearers for the funeral and burial.

At some time that Friday, Meyer explained to Nottger it was important he be able to see his father's body, if only to confirm his father was actually dead. Nottger advised him, 'in a rather fatherly way,' that he shouldn't view the body because of the offensive odor and because the body would not look like his father due to the injuries the elder Meyer had sustained. Mrs. Meyer then demanded to see the body. She expressed the belief Nottger could not legally prevent her from doing this. Although he acknowledged that might be true, Nottger was firm in his refusal to allow Mrs. Meyer to view the body, telling her that in six months she might be able to stand to hear how bad the body really was. The Meyers left the funeral home Friday without seeing the body.

The next day the Meyers went to the scene of the automobile accident near Nevada, Iowa. While there, they spoke with the highway patrolman who had removed the body of Meyer's father from the wreckage. The patrolman told them the elder Meyer had died of respiratory failure and there were no marks on his face from the accident. After discovering this, Mrs. Meyer called her attorney to explain the family's desire to see the body and Nottger's refusal to allow it.

The Meyers returned to the funeral home Saturday afternoon, confident they would be able to see the body. Nottger apparently continued his resistance to opening the casket, but acquiesced in the matter after receiving a call from the Meyers' attorney. At some point during that day, Nottger informed Mrs. Meyer he would not be responsible for her mental health in six months if she viewed the body. About four o'clock Saturday afternoon Mrs. Meyer and two of her sons finally saw the body, and they reported to Meyer that it was all right. As Meyer prepared to see the body himself, Nottger warned him that whatever he did, he should not touch his father's nose, as it had been reconstructed.

After seeing the body, the Meyers felt a sealer casket would have been unnecessary. The body was in a good enough condition to permit the opening of the casket (though the Meyers decided not to do this at the funeral) and there were no abnormal odors.

The funeral was the following Monday. According to Meyer, the service itself was 'all right.' Immediately after the service, however, one of the pallbearers informed the Meyers that he and the other pallbearers had been dismissed by Nottger, told they would not be needed at the burial site. The dismissal was contrary to the Meyers' wishes and was apparently rectified after the family spoke with Nottger.

The Meyers were taken to their car to await the departure of the funeral hearse. It was discovered that Jerry, one of the Meyers' sons, had left his raincoat at the house of his deceased grandfather. In addition, the Meyers were concerned that a number of persons planning to prepare a luncheon at the house would not be able to get inside. A decision was made to make a quick trip to the house to take care of these matters, and to this end Mrs. Meyer told Nottger not to do anything further until they returned. Nottger replied that was fine and 'there was no hurry to get to Iowa Falls.'

When the Meyers returned to the church 12--15 minutes later, no one was there. While they had been away, Waldo Jungkunz, Nottger's assistant, had started with the hearse toward the gravesite in Iowa Falls. Jungkunz stated in his deposition he did not know he was supposed to wait for the Meyer family to return. Upon finding everyone gone from the church, the Meyers 'panicked.' With their son driving their car they found Highway 20 and headed west toward Iowa Falls in an effort to overtake what they assumed to be the 'procession.' East of Parkersburg the highway patrol stopped their auto for violation of the speed limit. The officer who detained them issued a traffic ticket to the son and refused to escort them to the procession.

While the car was stopped, Meyer became ill. According to his deposition, he was thinking of what he characterized as the 'endless chain of happenings, of mistakes' and 'ugly things' in connection with the funeral when be became nauseous and...