Allen

Plaintiff sued defendants, individually and as a partnership doing business under the name of Miller Jones Valley Mortuary, to recover damages for mental distress suffered upon learning that the cremated remains of plaintiff’s brother, which defendants had undertaken to ship to Illinois, were lost in transit. Plaintiff appeals from a judgment of dismissal following the sustaining of defendants’ demurrer to plaintiff’s second amended complaint.

The factual allegations of the second amended complaint, which are deemed true for purposes of this review (Guess v. State of California (1979) 96 Cal.App.3d 111, 114 [ 157 Cal.Rptr. 618 ]), are as follows: Plaintiff is the brother and nearest living relative of Ralph Allen, who died on December 2, 1976. On or about December 4, 1976, plaintiff entered into an oral agreement with defendants under which defendants agreed to cremate the body of Ralph Allen and to ship the cremated remains to Rantoul, Illinois. Plaintiff agreed to pay, and did pay, $516 for defendants’ services. As a result of defendants’ negligence in packaging the remains, the package arrived empty and the remains were lost, causing plaintiff to suffer great nervous…

I concur.

While I am not terribly enthusiastic about the distinction made in this case between dead bodies and live ones, I join in this opinion because it is a step, albeit a short step, in the direction of breaking down the artificial distinction between emotional distress accompanied by physical manifestation and such discomfort without that handy little gadget.

In no other area are the vagaries of our law more apparent than in the distinction between mental and emotional distress accompanied by physical manifestation and such discomfort unaccompanied by physical manifestation. Generally speaking, a plaintiff in a negligent action may not recover for mental distress without accompanying physical injury or illness. However, given the foundational physical injury or illness, one may then recover not only for physical pain and suffering but for “fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror or ordeal.” (Capelouto v. Kaiser Foundation Hospitals (1972) 7 Cal.3d 889, 892-893 [ 103 Cal.Rptr. 856 , 500 P.2d 880 ].) On the other hand, except for intentional or outrageous conduct (or special exceptions such…

Plaintiff sued defendants, individually and as a partnership doing business under the name of Miller Jones Valley Mortuary, to recover damages for mental distress suffered upon learning that the cremated remains of plaintiff's brother, which defendants had undertaken to ship to Illinois, were lost in transit. Plaintiff appeals from a judgment of dismissal following the sustaining of defendants' demurrer to plaintiff's second amended complaint.

The factual allegations of the second amended complaint, which are deemed true for purposes of this review ( Guess v. State of California (1979) 96 Cal. App.3d 111, 114 [ 157 Cal. Rptr. 618 ]), are as follows: Plaintiff is the brother and nearest living relative of Ralph Allen, who died on December 2, 1976. On or about December 4, 1976, plaintiff entered into an oral agreement with defendants under which defendants agreed to cremate the body of Ralph Allen and to ship the cremated remains to Rantoul, Illinois. Plaintiff agreed to pay, and did pay, $516 for defendants' services. As a result of defendants' negligence in packaging the remains, the package arrived empty and the remains were lost, causing plaintiff to suffer…