*1 No. 12,703. Olinger Mortuary
Fitzsimmons Association. (17 535) [2d] P. Decided November Joseph Mr. error. P. Constantine, *2 Henry Mr. E. in error. May, for defendant En Banc.
Mr. Justice Burke delivered the of the court. These parties appear here in the order same as in trial court and for them convenience we designate plaintiff and defendant respectively. suffering, alleged
This is a suit for for mental improper performed to have been inflicted acts in connection with the conduct of a funeral. Portions were on stricken and a demurrer to the remainder, for want of facts, was sustained. judg- Plaintiff then elected to stand, and to review thereupon prejudice, ment of with dismissal, entered against prosecutes her she this writ. complaint alleges gen- that defendant conducts a mortuary plaintiff
eral business; that with it contracted bring body of her deceased husband from Walden prepare heavy to Denver and it for burial; that due necessary airplane it snows was charter an that purpose; plane plaintiff that when the was chartered told “any publicity defendant she did not desire undue notoriety” transportation; on account of this method of body picture that as soon as the reached Denver of it showing being without her moved taken, consent, airplane thereupon from hearse; in- defendant newspapers serted in two of wide circulation an adver- picture, tisement of business, its said including plaintiff the name of lauda- deceased, tory accomplishment, comments on the and the satisfac- tory character of the defendant; service furnished that said advertisements were so circulated “in a reck- disregard rights
less, willful and wanton and feel- ings plaintiff’ ’; of the that it was the common talk community per- plaintiff belief of had, hire, picture mitted said be taken and said advertisement foregoing circulated; that reason of the and “due to agreement the by entered into violation the terms * plaintiff plaintiff and the defendant said has to her humiliation and suffered mental damage $25,000. in the sum of portion complaint charging All that that defend- disregard ant acted willful and wanton in a reckless and plaintiff’s rights feelings (save charge as that appears paragraph 8), agree- and in violation of its charged ment, and that which belief the com- munity price, party had, for a been a acts were of, stricken. sustaining assigned generally
Error to the order *3 especially striking motion to and to strike, allegation community plaintiff’s the complicity of belief the
in the and to the order of, acts sustaining demurrer. the sustaining objected
The order the motion not exception necessity to and no The was saved. therefor by is obviated statute. p.
Section 66 Code of Civil Procedure, 1921, C. L. 114, provides: any writing, any affecting “When motion pleadings judgment pleadings, or on the shall be filed, riding and or decision had the said thereon, motion, and part the or shall be taken decision, as rec- the making by excep- ord, without the same such a bill of tions.” p. provides: exceptions
Section Id. 179 “No 422, need opinions, be taken or orders, decisions of courts of sustaining overruling record demurrers or written * affecting upon pleadings motions or based but * * * part all such shall taken the record exceptions. being without made such a bill assignment The of error reads: The court erred first
547 granting error strike the defendant in motion of complaint, particularly portions and more of the paragraphs 3 4 of motion strike. said assignment, order based court’s argued portions complaint, striking was not in the Perhaps even after the order briefs. part, good. reason, For some strike was sustained appearing, it the motion so far as court overruled following phrase paragraph “in 8, was directed to the plaintiff’s disregard of the willful and reckless wanton, striking* phrase although rights feelings,” the same paragraph paragraphs 8, as 6; 5 and so that from “That reads: sustained, the demurrer was stood when photograph of the said unauthorized reason public said defend unauthorized advertisements disregard of the ant in a wilful and reckless wanton, feelings plaintiff’s rights has suffered said to her dam and mental humiliation ($25,000) Twenty-five age Dol Thousand in the sum of lars.” But in the instant think mere failure case we argue Many should not foreclose review consideration. ing right, their courts, one, which this is reserve the on apparent own to correct errors on the face assign proper, exception objection, record without Sny ment. Rule 35 of the Burton v. court; rules 23 Robinson, Hume der, 451; 21 Colo. Pac. v. 292, 271; 47 Pac. Elliott Elliott, Colo. v. Colo.
Pac. Barr Pac. 1101. 630; Foster, foregoing men- While each cases our only exception judgment, tions absence of an *4 objec- there a total absence of each, fact, was also tion thereto. jury
In case on merits a we a tried its to reversed although: instructions, erroneous there was neither ob judgment. jection exception the Bar nor' Mastin v. 92 337, Pac. 682. tholomew, Colo.
Again, jurisdiction of writ we entertained a of error to protest Appeals of over the the there Court objection exception judgment, neither nor and Campbell, speaking while Mr. Justice for the court, based primarily upon the decision the fact that no statute required objection exception rule court in case Appeals, of writ of error to Court of he further the pointed out that conclusion would be the same had such statute or rule existed. Bank Dole, Akron v. 94, Pac. goes objection
If the court so far the absence both exception judgment, and would seem that no clear stringent apply more rule should and alleged we should not refuse to consider an erroneous ruling duly presented by exceptions, bill of thereon, merely argued. Especially not because is this true where, right here, such refusal would result in the denial fully preserved insisted in the trial court and presented by the record.
Since we are of that the motion to question strike should have been overruled, and fairly presented, of that we need not consider vulnerability demurrer after may mangle that motion sustained. One thus his adversary’s pleading then him demur out court because of in which attack left the condition his has it. many implied
In oral contracts more is than is expressed. very profession, If nature of a man’s possession imply or trade, business is such as to cer qualifications guarantee tain conduct, possesses employ the assurance that he and will those qualifications and will follow that line of plied in all contracts made with him for the is im conduct of
service may readily pro fered. Illustrations taken from the fessions of medicine law and the trade skilled p. p. §225; mechanics. 6 J. 48 C. C. J. 1113, §101; p. §522. J. C. If written contracts are sometimes made with they must be rare. These morticians usually contracts ar'e necessarily in them much is im- oral and left *5 plication. neither the time nor the mental tran- There is prepares negotiation. quility who essential to One usually body for burial and conducts a funeral human living in their most difficult and delicate deals with the being, for time obliter- has, Bereavement moments. gross side human nature ated and sordid brought to the all its tenderness and sensitive- surface indifference, ness. The exhibition of callousness or indignity, no in- can, course, offer of inflict insult jury they can visit akin to torture dead, on the but living. of a on the So true is this that the chief asset conspicuous mortician element of his adver- and the most for A tisement is his consideration the afflicted. decent respect every feelings implied in for their contract pre- nothing If his services. this be true there is embalming body parading vent the of it through city exposed gaze of curious streets, throngs, while crier attention to it as an a hired calls example Certainly stipula- of the undertaker’s skill. no employment pro- tion need in the be made contract of outrage. tect relatives of the deceased from such an If precaution, those have relatives taken the as this com- plaint demanding, alleged, stipulating or no for, “un- publicity notoriety,” due or no doubt of the bounden duty comply contractual contract of can remain. If defendant’s
employment as the record before included, us justifies holding, express implied agreement inus an nothing outrage feelings would be done to of an person, ordinary unnecessarily per- inflict agony” son “humiliation and mental plaintiff’s legal right violated, contract was then recovery by unquestioned authority. is established parties rely upon
Both cite and the Hall case. That suits for divides mental an guish (A) pure into three classes: Cases where tort, no contractual relation exists and the acts and wanton are attended with willful ages conduct, such dam (B) recoverable; are “cases where breach of con- attending tract are has occurred and acts such breach insulting willful, or wanton conduct *6 guilty damages may the one recovered mental passive be breach, substantial suffering’ (C) mere alone”; cases of by engaged
breach of one not in a busi contract quasi public ness of a where breach is unin nature, accompanied by tentional and insulting no willful or wanton, in which cases not re are acts, App. Jackson, Hall 225, 228, coverable. 151. Pac. “ express agree opinion. we no to “A” and C” We As “B” with that court and hold that this is such as against case. The Hall case was a suit a widow damages arising negligent un mortician for from a embalming*.Recovery skillful case of denied because charg’e insulting no wanton or con willful, there was approved with the distinction, duct. This was line of contract authorities, between breaches numerous “ordinary negligence” “simple negligence” involving insulting” wanton “willful, and those pp. D. v. Richmond & 831-837; conduct. 17 Wilcox C. J. 804; L. R. A. Weste A. 52 Fed. 3 C. C. Co., R. Pac. Bank, se n v. 78 Colo. says charge “reckless,
Defendant, however, that the originally and wanton” contained willful as conduct, legal that a mere and for conclusion properly in fact was the basis reason was stricken. Such properly specific, more which was of a motion malee agree with court. overruled We are unable clearly suscepti- alleged contention. If the facts are that ble of a favorable interpretation they will course, not, charge. they support But as are not so sus- if, here, charg’e good ceptible and must answered. arguments viola- that this was at most a Defendant’s only obligation; mere moral that was adver- tion of a wrong advertising tising* within the there is no no interest because truth; that has bounds of picture; and that the feat included she was not prop- public hence interest, matter was a advertised applied equally potent to that erly exploited, if would be applied, shocking used, and so hereinbefore illustration they themselves. think answer we picture are at- and advertisement
The complaint. An examination to this an exhibit tached as allegations plead- with the connection of ing them, a sufficient these constitute filed, us convinces damages for charge contract of the violation suffering’ arising* a cause ther'efrom, and mental both the mo- It follows was stated. action therefor over- have been should demurrer tion to strike ruled. judgment remanded and the cause is reversed harmony proceedings herewith.
further *7 dis- Me. Campbell Me. Justice Hilliaed Justice sent.
Me. dissenting. Hilliaed Justice
Considering I think the of the court record, fairly parties question It for the involved. decides object plaintiff did not clear in the district court formally striking parts her definitely point aside. and in casts the this court she ‘‘ presentation says: plaintiff here, counsel On argument general brief to a error will confine her this assigned assignment error’ her discussion ‘ The court erred in sustain- numbered to wit: II, errors ’ ’’ ing in error. Describ- the demurrer of the defendant complaint ing which the trial court sustained general the fol- want of counsel uses facts, demurrer for lowing*lang*uag*e, “The I italicize: which ‘‘ ’’ complaint says error, counsel, after fol- reads as stricken, were *, irrelevant matters complaint, omitting : lows He then out the sets portions. stricken plaintiff’s our counsel invokes
It will noted that consideration of the sufficiency complaint only form to which the demurrer was sustained-below, complains nothing else. I can- In circumstances not find justification for to the contended, mat- restoring ter which defendant successfully below was irrelevant, and to which contention plaintiff, by use the language emphasized, above here subscribes. Ob- of well servance -ordered would affirm- practice require ance of judgment. Campbell
Me. Justice opinion. concurs
No. 12,717.
Thompson et al. v. Sweet. (17 308) [2d] P. Rehearing denied Decided December 1932. November