*1 1«5 early advantage employer no obtained
presence, and, testified although she clothes employee helped fold a fellow hour, superintendent of
during this she had and stated
employer denied this m. perform 8 o’clock a.
no duties until record, must we
On the basis voluntary so, was a
clude did if judge act, or that
and unrelated testimony, that conflict of
found happen.
did not competent evidence
There is finding support State
tending injury accidental
Industrial Court that course of and in the
did not arise out of
employment. sustained.
Order BLACKBIRD,
WILLIAMS, V. C. J.,C. IRWIN, HALLEY,
J., and JACKSON JJ., concur. BERRY, JJ., dissent.
JOHNSON INC., Error,
SEIDENBACH’S, Plaintiff in WILLIAMS, Defendant in Error.
LaWanda
No. 38960.
Supreme of Oklahoma. Court
April *2 gown combined and veil’s $94.35
original price $163.20; delivered to her.
Thereafter, plaintiff when instituted the present against defendant, action al- leged duty” that defendant “breached its toward “gown her in failing to deliver the and veil until over a week after the * * * ”, occurred sought expense, various wedding’s items of the organist’s fee, as fee, vocalist’s cost of etc., the wedding pictures, invitations and totaling $716.61, damages. Further al- leging wanton, that “as neg- a result ligent defendant, and willful acts” of “formal wedding was shattered and laid to ruin” from gown the absence of the Hudson, Hudson, Hudson, D. Robert veil, causing “to great suffer Tulsa, plaintiff in Kyle, Wheaton & anguish, humiliation and embarrassment error. * * * ”, plaintiff account, sought, on that Tulsa, Burt, Franklin, Seigel for de- & further damages $10,000. in the sum of fendant error. Defendant’s answer was in the form aof BLACKBIRD, Vice Chief Justice. general denial, specific and a denial that controversy aris- action This concerns had plaintiff. breached its contract with It purchase wedding gown ing out of the aof alleged, substance, reason (hereinafter veil. Defendant error gown and veil were not delivered in time them plaintiff) referred to as ordered for the wedding plaintiff was that had plaintiff error, operator owner days a few wedding, before the verified its department (hereinafter Tulsa refer- store date, agreed as she had with defendant’s defendant) red to as in time for sched- Mrs. toWedel do. City. uled in that defendant When answer, In a petition cross following its (where did not deliver them to the church sought recovery against plaintiff plaintiff’s wedding occur) within was to $202.18, the sum of representing the total forty ceremony minutes after the was to original clothing cost of the defendant had start, proceeded, wearing with her allegedly plaintiff, furnished here- less the provided honeymoon trip. suit for her $94.35, inbefore mentioned discount of completed gown, which had been given plaintiff which defendant was ample at the defendant’s store in. time for compromise as consideration for a delivery wedding, before the and various controversy. forming other items clothing apparently trial, beginning At the parts plaintiff’s trousseau, had been prosecute elected to her alleged cause of store, charged to her at said but remained action aon breach of rather than unpaid for, when she returned to Tulsa tort, theory. At the plaintiff’s close of honeymoon trip, from her and indicated evidence, defendant’s demurrer thereto was gown she would like still to- have the overruled, motion for a directed and veil. verdict, after all of the evidence had been After consultation between Mr. Seiden- introduced. bach, executive, defendant’s chief and Mrs. Wedel, clothing Upon the store’s bridal jury, sales- submission cause to the woman, consultant”, separate or “bridal verdicts were it was One two returned. agreed plaintiff recovery $1,500 given granted should be credit Lee, McCullough & re- granted petition; the other petition. held: cross $202.18, on its covery of sub- apparently Thereafter, the trial court jurisdic- “It is the settled law in larger verdict tracted the smaller tion that of itself can- *3 in for one, judgment and rendered independent ground not be as an treated $1,297.81. of the difference amount of damages person to of as to enable a so a new for motion overruling After the injury maintain an for that action ap- present trial, perfected alone.” peal. body page opinion (212 In the P. at 982), it was further said: has reversal, sub sharp “It is is a true there that we propositions, but as mitted three but, authority question, flict of erred court that determined view the careful consideration newa motion for overruling defendant’s jurisdic- already has received in this reason, must trial, that, the case and for this upon tion, to re- we do not feel called necessary remanded, it is be reversed and examine that, the cases.” only its contention to deal Oklahoma, may be recovered not Co., Ry. In Belt v. Louis-San Francisco St. humiliation, and em anguish, mental Cir., 243, 241, said: 10 195F.2d it was resulting from allegedly barrassment to are committed “Oklahoma courts not contract, where same “was breach recovery had the rule that can be ‘No of, physical by, produced or the result some is anguish, which pain for mental * * * This con injury suffering with, produced by, or the not connected covers, tention, proposition, apparently or of, physical in- suffering or result some to, pertains assignment or both defendant’s mental jury, person enduring overruling of its demurrer of error Francisco anguish.’ Louis & San St. for a di plaintiff’s and motion evidence Keiffer, P. Ry. 434, 150 48 Okl. Co. v. verdict, rected and to its contention words, law 1026. In other jury. instructing erred in compensate for mental does not (Since of its defendant introduced evidence part must be a or disturbance alone—it own, after the of its demurrer overruling insepara- physical suffering evidence, not a plaintiff’s ruling said therefrom, an- as where the mental ble ap proper subject of consideration by physical hun- superinduced guish is Mulkey Morris, Okl., P.2d See 313 peal. v. Minnis, Thompson pains. v. ger See 494, 499, citing Chickasha Cotton Oil Co. 154, 981.” 201 202 P.2d Okl. Hancock, Okl., 306 P.2d 145 Damages, sec. See also McCormick On plain of the fact that the
Consideration
The statement
“Mental Distress”.
verdict,
plain
judgment,
as well as the
v. Shel
quote
Koons
tiff’s counsel
573,
than
larger
tiff was for an amount
the total
Co.,
Motor
burne
claimed
for items
almost unani
other
“The authorities
that:
humiliation,
anguish,
than mental
and em
to the
mously recognize
rule
barrassment,
ordinarily,
renders it certain that
sub
suffering
an ele
portion
recovery
her
was for
damage arising
stantial
from the
ment of
breach
Moreover,
uphold
she neither
these items.
no basis for
constitutes
contract”
breach
proved
recovery.
that defendant’s
That statement was
nor
claimed
her
ing
reference to decisions in
gown purely
to deliver
academic
in the
and was
nature of
physical
jurisdictions,
any
injury,
veil, caused
quite
made it
clear
This court
vexed,
perturbed
injured,
feel
dictum.
early telegraph
caused,
cases
breach were
or con
its discussion
ings from such
Union Tel.
produced,
Butner v. Western
2
with,
aggravated, or
nected
before
(decided
P. 1087
State-
disability.
37
injury or
In Nail v. Okl.
any such
general,
motion was
and was directed to
case, and Western
hood) cited in the Koons
whatso-
any
all
Choteau, 28 Okl.
Union Tel. Co. v.
Ann.Cas.1912D,
Therefore,
ever.
we
879, L.R.A.,N.S.,
do
hold
P.
jurisdiction
trial court
it.
do we
overruling
erred in
Nor
-basisin
there
no
pass upon plaintiff’s
exception
right
as to
dam-
any
recognizing
of,
ages
any actual, compensable
result
pain
not the
suffering,
Dur
injury.
be able to
she suffered
by, physical
establish
accompanied
nor
direct,
proximate
the lat
of the claim-
result
ing the
our discussion
course of
880)
argu-
page
ed breach.
into
(115
bring
Counsel
their
pointed
ter
we
out
ment,
II,
proposition
of this
under
speaking,
courts
defendant’s
generally
*4
power of ad
statements to the
the
and
effect
evidence
their rules
Nation derive
sources, namely:
shows
suffered no actual
two
judication from but
Law,
expenses,
stat
for the sums
her
in-
and our
English
The
Common
Page
pictures,
upon
cluding
in
the
her
the
authority relied
made of
utes. The
testimony
wedding. They represent
in
her
as
text cited
the Law of
Contracts —the
showing that all of
items “were re-
supra
dam
such
allowing
the Koons
—for
utilized”,
dem-
by breach
ceived
but
ages
do
for mental
caused
distress
instance,
trousseau,
pictures,
Lewis v.
onstrate that
a contract to
a
is
furnish
suit,
showing
wearing
L.R.A.
a
rather than a
61
gQ by BERRY, (dissenting). loss reason its failure to de- Justice liver with, the trunk. The detriment caused majority agree I unable to am by loss of time because opinion. deliver failure to the trunk and in- his in error here seeks Defendant ability samples to exhibit his plaintiff in error’s damages resulting trade, looking his loss of time pro- following breach of a contract. expenses incurred, trunk and his ap- O.S.1951, therefore visions of 23 naturally all such as would flow losses plicable : from or follow its failure deliver suffers Any person who “Sec. 3. It was trunk. such losses as act from the unlawful might anticipate ex- another, may recover omission pect make result of its failure to compensation person fault delivery.” called dam- money, which therefor in paragraph We in the second stated ages. syllabus to Eason Oil Co. et al. v. White loss or harm Detriment is “Sec. 4. side, “Where Okl. property.” person suffered one which have made *5 obli- an breach of breached, the damages “Sec. which them has the of contract, meas- the from gation arising to party may respect the receive other except where other- damages, may of ure such breach of such as contract chap- expressly provided by this considered; wise freely either be compen- ter, which will amount is the according the actual arising naturally, to for all the aggrieved party the sate things, of con of breach course thereby, proximately caused itself, reasonably be may tract or such as ordinary course in the which, contemplation of supposed been in to have likely result there- be to things, would they con at made the both the time damages can be recovered from. No tract, probable of it.” as the result contract, which are not breach of for a 53, “Dam- p. 456, Sec. This was said at their na- clearly both ascertainable in ages”, 15 Am.Jur.: origin.” ture general “In addition to one ap were cited quoted statutes injured by breach of a contract the Ry. v. Francisco Co. Louis-San plied in St. party he a is entitled to to which 298, 300, 25 A. Freeman, special damages which arise recover traveling a salesman case which L.R. peculiar the to circumstances from loss of damages resulting sought case, particular circum- where those a expenses recovering and travel to, time communicated stances were carrier had under trunk the sample by, party at time known transport. speaking In taken to made; is, may he contract was was traveling salesman damages that damages as are rea- recover such was said: recover, to this consequences entitled sonable and natural so under the breach circumstances railway company 3) When the “(2, sup- may reasonably be disclosed and transportation trunk for accepted the contemplation posed have been in the common duty carrier of its under ” * ** parties. of both hire, knowing passengers Holmes, al. v. traveling In Lewis et 109 La. salesman and was Freeman 66, damages sought for breach containing a trunk was 34 So. this timely contract make if it did deliver knew samples, it speaking damages In al- of the trunk trousseau. delivery immediate make contract, City, the breach such a at lowable destination paragraph in the first Freeman, traveling was said as such this S.W. syllabus: other detriment suffer salesman, would groom’s wedding, his to the dep- friends are recoverable
“Damages special could enjoyment groom intellectual rivation of breach anguish for in the nature mental resulting from suffering, of the contract. of a contract.” the breach Express In McConnell United States opinion, body inAnd the cases 146N.W. Mich. said: quoted from cited and last above cited are rule is that “Although general paragraph approval. In the third the loss the the amount damages are syllabus to the McConnell sustained, gain or of the has creditor was said: yet deprived, been he has of which special circumstances “Where in which are cases there party been communicated to a at the alto- calculating without be assessed making the time of so it loss, pecuniary gether on the apparent breach result in that a will gain, pecuniary privation of they special damages, are recoverable has for its party. When although would not result ordi- intel- object gratification of some narily perform.” from failure to religion, enjoyment, whether lectual taste, convenience morality, or some recognized in Koons v. Shelburne We although gratification, legal 573, 574, or other Co., 167 Okl. Motor money by appreciated in unanimously are not these authorities almost “the due for parties, yet damages are the rule that mental recognize re- for a A contract ordinarily, their breach. suffering an element *6 foundation, a ligious or charitable a con damage from breach of arising marriage, engage- an promise of ; is where that one of said tract” fine a work of some of ment wedding furnish a trousseau a contract to examples arts, objects and are is breached. rule. authorities, As I it is law read settled n n n n n
n is entered into under where a contract “ * * * par- special known to both the dam- circumstances computing In ties, damages breach of contract restricted ages the allowance must be only by actual loss but may reasonably are measured to what be held to contemplation by special such as been within the also damages were within parties into the where such entering contract. contemplation at the furnish the dresses was to was entered into. wedding 19th. the contract in time for time held to have D. Holmes must be H. special the instant circum- In were not known if the dresses wedding. were a church formal stances by day, the bride would finished error, wedding defendant At the keenly disappointed. be Also that custom, planned wear an keeping with for the bride would need dresses greet appropriate wedding gown, the wed- wedding incident to festivities wedding ding guests, serving assist immediately following, for which cake, pose photographs, usual etc. for the customary provide them- for brides to bride, brief, she, planned to be In selves with a trousseau.” things appropriately attired and do those usually by done a bride at a appeals which are The court of of Alabama held apparent al., wedding. church It is Browning formal substance in v. Fies et Ala.App. 580, plans were built and centered around per- that when a So. appropriate gown which is the operated livery wedding an son who stable contract- wedding. The to a formal em- groom keystone with team ed to furnish a at a specified and humiliation that she carrying groom time for barrassment use ex-
19J appear perienced compelled upon being readily
at can in street attire appreciated.
be Her embarrassment heightened by her swollen
humiliation was resulted from tears
countenance which copiously shed. times, plaintiff
At all in error knew to wear in error intended supply
gown that it had contracted to knowl- charged and is
formal wed- followed at such
edge of the customs
dings. knowledge, such Having
surely that its breach of realized disrupt error’s
tract would her the plans and cause would un- anguish and distress that Since only breach.
derwent because distress attributable such error’s
anguish were within damages which
contemplation breach, likely defend-
would result from dam-
ant in to recover error is entitled
ages. dis- respectfully given, I reasons
sent. *7 HIGGINBOTHAM, Erwin
John W. Mrs. Felix, LaFevers, Sylvanus Akin, O. J. G. Mary Garrett, Floyd Harrison, F. A. Error, Bass, R. L. Plaintiffs VILLAGE, Oklahoma; Eu
CITY OF THE Bumpass, City gene Manager-City Clerk L. City; Mayor Blagg, Fred W. of said City; City Councilman of said Walter Building Superintendent Wigley, of said Watson, City; Doctor O. Alton De in Error.
fendants
No. 38983.
Supreme Court of Oklahoma.
April 11, 1961.