Pat H. Foley & Co. v. Wyatt, 230

• Decision Date: 11 June 1969
• Docket Number: No. 230,230
• Citation: 442 S.W.2d 904
• Parties: PAT H. FOLEY & COMPANY, Appellant, v. Zelda WYATT, Appellee. . Houston (14th Dist.)
• Court: Texas Court of Appeals

Page 904

442 S.W.2d 904

PAT H. FOLEY & COMPANY, Appellant, v. Zelda WYATT, Appellee.

No. 230.

Court of Civil Appeals of Texas Houston (14th Dist.).

June 11, 1969.

Rehearing Denied July 2, 1969.

Alice Giessel, Talbert, Giessel, Barnett & Stone, Houston, for appellant.

Kenneth L. Box, Landis, Gregory & Mullins, Houston, for appellee.

SAM D. JOHNSON, Justice.

This is a suit against a funeral home, Pat H. Foley and Company, for damages sustained by the plaintiff, Zelda Wyatt, incident to the funeral of her one. The plaintiff claimed damages based on the failure of the defendant to properly perform its contract for embalming, burial and funeral services, and the negligence of the defendant in preparing, embalming, preserving and protecting the dead body for burial. The plaintiff made no claim for actual physical harm to herself but did claim damages for mental anguish.

The jury made certain findings in behalf of the plaintiff and also found her damages to be in the amount of $15,000. The court overruled defendant's motion for judgment non obstante veredicto and judgment was entered for plaintiff upon the jury's verdict. Pursuant to the trial court's order overruling defendant's motion for new trial conditional upon remittitur, plaintiff remitted $10,000 of the judgment, thereby reducing the amount to $5,000. The defendant funeral home perfects its appeal to this Court.

It appears that the plaintiff's 23-year old son died on May 23, 1962. The defendant funeral home was contacted by a member of the family to take the body, which had been autopsied, and to be in charge of those matters which attend funeral preparations and burial . The body was taken by the funeral home and embalmed by its employee on May 24th. The body remained in the funeral home until May 26th, the day of the funeral. During this period the family was with the body from time to time. On the date of the funeral the body was transported by the defendant to Oakhurst, a rural community near Huntsville, where there was to be a church service prior to interment. Just before the casket was taken inside the church the casket was opened by an employee of the defendant in the presence of the plaintiff's brother, whereupon the offensive odor emanating from the body necessitated the immediate closing of the casket. It is not altogether clear whether or not the plaintiff was informed of this odorous condition. It appears that whatever information she received, however, did not come to her from an employee or representative of the defendant funeral home. The best that can be determined is that either the minister or a relative told her that something was wrong and that she could not see the body.

Near the conclusion of the service the plaintiff indicated her insistence that the casket be opened. All others were then excused except for members of the immediate family. Upon the opening of the casket there emanated from the body of her son a grossly offensive odor. It was this occurrence which gave rise to the damages claimed by the plaintiff. The plaintiff immediately became ill, fainted and received medication. It may fairly be said that the impact of the occurrence occasioned a significant effect upon the sensibilities of the plaintiff.

Affirmatively, the jury found that the plaintiff's son's body was emitting offensive odors from embalming, that the defendant knew, or should have known, of such offensive odors, that the defendant failed to advise the plaintiff against opening the casket at the funeral service, and that this failure was negligence proximately causing plaintiff's mental anguish. These findings were the basis of the judgment for the plaintiff. The jury also found, however, that the defendant was not negligent in the manner of embalming. The jury found that though the plaintiff knew of the odorous condition of the body before the funeral services her insistence upon an open casket at the church was not negligence.

Appellant funeral home's first three points allege error in the trial court's granting judgment solely for mental anguish. Appellant points to the general rule that if no physical harm to the person of the plaintiff is disclosed, no right of recovery exists by virtue on mental suffering alone, and cites 17 Tex.Jur.2d 194, Damages, Sec. 129; Renfro Drug Co. v. Lawson, 138 Tex. 434, 160 S.W.2d 246, 146 A.L.R. 732; Harned v. E-Z Finance Co., 151 Tex. 641, 254 S.W.2d 81, (Tex.Sup.) See comment to 2 Restatement of Torts 2d, Sec. 436A. While the appellant is correct insofar as the general rule is concerned, such position ignores the exception to such rule applicable to the instant case and followed in this jurisdiction.

The parties in the instant case were not strangers to each other; their relationship was contractual. While the plaintiff's pleadings additionally allege negligence, an initial basic allegation is that the defendant failed to perform according to its contractual responsibility. This is not a claim for mental anguish founded solely in negligence.

In Lamm v. Shingleton, 231 N.C. 10, 55 S.E.2d 810 (1949), the plaintiff brought an action against a funeral home for failure to properly conduct the funeral of her husband in that the vault, during a rainy spell of whether, rose to the surface revealing that it had not been properly locked and that water and mud had entered it. The Court there posed a 'primary question' to itself, 'Is mental anguish an element of damages to be considered by the jury in an action for the breach of the contract alleged and, if so, must plaintiff show that the breach amounted to a willful tort?'

Citing extensive authority the Court responded in part, 'Where the contract is personal in nature and the contractual duty or obligation is so coupled with matters of mental concern or solicitude, or with...