Westesen v. Olathe State Bank
| Citation | 240 P. 689,78 Colo. 217 |
| Decision Date | 02 November 1925 |
| Docket Number | 11167. |
| Parties | WESTESEN v. OLATHE STATE BANK. |
| Court | Supreme Court of Colorado |
Department 2.
Error to district Court, Montrose County; Straud M. Logan, Judge.
Action by Carl Westesen against the Olathe State Bank. A verdict for plaintiff was set aside on defendant's motion for a new trial, and the trial court entered judgment for plaintiff for a less amount. Deeming the relief granted insufficient, the plaintiff brings error.
Judgment reversed, and cause remanded, with directions to enter judgment on verdict.
Catlin & Catlin, of Montrose, for plaintiff in error.
Sherman & Waldo, of Montrose, for defendant in error.
This is an action for damages for the breach of a contract whereby the defendant, a banking corporation, agreed to loan plaintiff money for a trip to California by crediting his account with such sums as he might need after reaching his destination. The allegations of the complaint are more fully discussed in Westesen v. Olathe State Bank, 71 Colo. 102, 204 P. 329, where we held that it was error to sustain a demurrer to the complaint in this case. The case came here a second time, and in 75 Colo. 340, 225 P. 837, the judgment was reversed for various reasons, and the cause remanded. At the last trial the court permitted the jury to assess damages resulting from humiliation and mental suffering alleged to have been caused by defendant's breach of the contract in addition to other damages caused by the breach. The jury returned a verdict for plaintiff, assessing damages as follows: '* * * For loss of expenses, $700; * * * for humiliation and mental suffering $1,000.'
The defendant filed a motion for a new trial, alleging principally that it was error to allow damages for humiliation and mental suffering. The trial court set aside the verdict as to the item of $1,000 for humiliation and mental suffering, and entered judgment upon the $700 item of the verdict. The plaintiff, for the third time, brings the cause here for review.
The principal question presented by the record, upon this review is: Can damages for humiliation and mental suffering be allowed in this case?
The defendant in error, defendant below, contends that this question must be answered in the negative, under the decison in Hall v. Jackson, 24 Colo.App. 225, 134 P. 151. In that case the defendant was guilty of a mere passive breach of the contract, and the decision is in line with those cases which apply the rule stated in 17 C.J. 837, as follows:
'In an action for breach of contract, damages cannot be recovered for mental suffering alone; there being no allegation of any other damage.'
See annotation in 23 A.L.R. 361 et seq.
In the Hall Case, the plaintiff alleged no other damage. In the instant case, the plaintiff does allege and prove other damage, namely, the expense of travel in the course of an interruped and ruined vacation, which expense the jury found to amount to $700. Under the authorities hereinafter cited and the views hereinafter expressed, this difference between the facts of the two cases renders the Hall Case not decisive of the instant case.
In 17 C.J. 828, it is said in the text:
'Mental pain and suffering in connection with a wrong which apart from such pain and suffering constitutes a cause of action is a proper element of damages where it is the natural and proximate consequence of the wrong.'
While this rule has frequently been applied to cases sounding in tort (8 R.C.L. 512, § 71), it is applicable in actions ex contractu (Larson v. Chase, 47 Minn. 310, 50 N.W. 239, 14 L.R.A. 85, 28 Am.St.Rep. 370). Where a recovery of such damages has been denied, in actions ex contractu, it was usually denied upon the ground that the breach of the contract was not such as would naturally cause mental anguish. A case illustrating that situation is Adams v. Brosius, 69 Or. 513, 139 P. 729, 51 L.R.A. (N. S.) 36.
Was the breach of the contract involved in this case one which would naturally cause mental anguish? The defendant bank was informed of the purpose of the loan, and knew that plaintiff...
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