73 P. 1055 | Cal. | 1903
This case presents the sole question as to whether or not the court properly sustained defendant's demurrer to the third amended complaint. The complaint *341 alleges in substance that about January, 1890, Eunice Westwater, who will hereafter be called the plaintiff, was engaged by defendant corporation as contralto vocalist of defendant's choir, and continued to be so engaged until January, 1895. That about the month of August, 1893, defendant entered into a contract with plaintiff, wherein it was agreed that either party desiring to terminate the engagement referred to should give six months' notice to the other party. That the agreement as to notice was made for the purpose of preventing injury to the musical vocation and reputation of plaintiff by any dismissal upon less notice than six months. That in January, 1895, without any previous notice, contrary to said agreement, and for the purpose of injuring the reputation of said plaintiff as a vocalist, the defendant dismissed her. That said dismissal was malicious and oppressive, and in consequence thereof the plaintiff has been humiliated, suffered great mental agony, and been sick in mind and body, to her damage in the sum of ten thousand dollars, for which sum judgment is prayed. The demurrer was properly sustained.
The gist of the action is the dismissal of the plaintiff with intent to injure her, and without due notice as agreed between the parties. The contract was that defendant should not dismiss plaintiff without notice. She was dismissed without notice in violation of the contract. For this breach of contract, damages are sought. There is no allegation in the complaint as to the wages, if any, plaintiff was receiving from defendant. There is no allegation that anything was due her when she was dismissed. There is no allegation that plaintiff could not get employment in some other choir at better wages. The complaint may be true, and yet the plaintiff have been much benefited by the dismissal. She may have been getting five dollars per month. After she was dismissed she may have secured similar employment at two hundred and fifty dollars per month. The action is not for a tort, nor is it for slander or libel. Therefore the question is one arising by reason of a breach of the contract. In such case the defendant cannot be held liable for damages to plaintiff's health, nor for injury to her feelings or reputation, by reason of her wrongful discharge. *342
Her right to be employed arose by reason of contract. Her dismissal without notice was a breach of contract. It is provided in the Civil Code (secs. 3300, 3301): "For the breach of an obligation arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which in the ordinary course of things would be likely to result therefrom. No damages can be recovered for a breach of contract which are not clearly ascertainable in both their nature and origin." Injury to the plaintiff's health, feelings, or reputation would not be proximately caused by her wrongful discharge, nor would it be likely to result in the ordinary course of things. "Proximately caused thereby" — that is, such damages as must immediately follow and are produced by the act complained of are the damages for which the statute provides the measure, or such damages as in the ordinary course of things would be likely to result from the act. (Friend Terry etc. Co. v. Miller,
We advise that the judgment be affirmed.
Haynes, C., and Gray, C., concurred.
For the reasons given in the foregoing opinion the judgment is affirmed. McFarland, J., Lorigan, J., Henshaw, J. *344