Lead Opinion
delivered the opinion of the court.
(After stating the facts as above). The errors claimed by counsel for appellant to have been committed in the court below are, in substance, as follows:
*766 (1) Refusing to grant appellant a peremptory instruction.
(2) Permitting the jury to award appellee damages for mental anguish.
(3) Instructing the jury that when appellant found that he would be unable to comply with his promise to attend Mrs. Moffett, in event the jury believed from the evidence he in fact so promised—
“then under the law, he .was bound to do one of two things: Either, first, send another doctor to plaintiff, or, second, notify plaintiff so that the notification would reach her not later than the expiration of the time at which he was to be there under his promise aforesaid.”
(4) Permitting the jury to award appellee punitive damages.
The ground upon which it is claimed a peremptory instruction should have been granted to appellant is that it is not incumbent upon “a doctor to leave a patient who is in a precarious condition to attend one that he had previously contracted to attend.” This proposition, differently expressed, amounts simply to this: If a person assumes obligations to different parties, the performance of which may become incompatible with each other, both parties being entitled in equal right, is it an excuse for a default to one party that both obligations could not be performed, and that the person bound chose to perform his obligation to the other? In
Heirn
v.
McCaughan,
There is no merit in the second assignment of error as hereinbefore set out, for when physical pain is an element of damage, mental anguish accompanying it is also an element thereof, and according to the evidence of Mrs. Moffett, she suffered intense and prolonged *767 physical pain because of appellant’s failure to attend her when requested so to do.
Conceding for the sake of the argument that the court below erred in instructing the jury that when appellant found that he could not attend appellee, it was his duty to have done one of two things, either send another doctor or notify appellee that he could not attend her, the error is not such as can be complained of by appellant, for it was committed in his favor, since neither the sending of another doctor, unless consented to by appellee or her husband, nor notifying appellee that he could not attend her, would have constituted a compliance with appellant’s promise; such acts on the part of appellant could be availed of, if at all, in mitigation of damages only.
If appellant entered into a contract to attend appellee’s accouchement and failed so to do without fault on the part of appellee or her husband, he is liable for the injury, if any, thereby inflicted upon her.
The jury should not have been instructed, however, to award punitive damages. This is a suit for damages alleged to have been sustained because of the breach of a contract, and the rule is, with probably two exceptions, and within neither of which does the case at bar come,, that such damages are not recoverable in such an action unless the act or omission constituting the breach of the contract amounts also to the commission of a tort. 8 R. C. L. 604; 3 Elliott on Contracts, section 2124; 13 Cyc. 113; 12 A. & E. Enc. of- Law (2d Ed.), 20. This error, however, was harmless, for the reason that since the amount of damages awarded is only one hundred and fifty dollars, it cannot be said that the jury responded to the instruction and included in the verdict an award for punitive damages.
'Affirmed.
Dissenting Opinion
(dissenting). I am persuaded this cause should be reversed and remanded for a new trial in accordance with proper instructions. My brethren con *768 cede error on the part of the trial court in authorizing- the jury to allow punitive damages, hut say this is harmless error. I think the verdict was influenced by, and in response to, this erroneous instruction. The circumstances detailed by plaintiff and her witnesses were calculated to arouse the indignation of jurors. The poverty of plaintiff, the ignoration of her rights by the defendant, according to 'the plaintiff’s evidence, and the natural sympathy of all for a woman in impending travail are bound to have aroused a desire to punish the physician in this case.
Admitting the. contract and the breach thereof, the actual damages are nominal. The contract as stated in the majority opinion was to render plaintiff “medical assistance at her approaching accouchement.” "When Hr. Hood was sent for, the full time for plaintiff’s delivery had not come. This event was a week later, and in her labor, plaintiff had the attention of a competent physician. For what then are damages allowed in this case? The rule is elementary that to recover more than nominal damages for breach of contract there must be shown substantial loss or injury. Mrs. Moffett herself says she felt better after the runner for the doctor got back, and during that day, Saturday, objected to her husband sending'for another physician, saying:
“Mr. Moffett asked me if I wanted another doctor, I told him I would let him know when I thought I needed another one.”
And again:
“I would get one [doctor] as quick as I needed one. I knew I would need a doctor; I got better, and knew that I would get worse again before I needed one again.”
I think the main complaint in this case was about the money retained by Hr. Hood. This is, on analysis, a very bad case that might have been! Had plaintiff been delivered of her child before another physician was summoned, then a different case would have confronted the defendant as well as the court.