#### Haas, Appellant, *v.*Pacific Mutual Life Ins. Co. of California et al., Appellees.

(No. 3370

Decided November 22, 1941.)

*Messrs. Power & Barton,*for appellant.

*Mr. Lawrence D. Stanley*and *Mr. Ashley M. Van-. Duser,*for appellees.

G-eiger, P. J.

This matter is before this court upon appeal from a final order of the Court of Common Pleas under, date of January 30, 1941, wherein the demurrer to the second amended petition, filed by the plaintiff, was sustained as to the second and third causes of action.

It was there further ordered:

“It appearing to the court that the plaintiff does, not desire to plead further and setting up only a claim for interest in the amount of $101.25, it is ordered that the second amended petition be and the-same hereby is dismissed. Judgment is accordingly rendered to the defendant for its costs.”

Notice of appeal was filed on February 18, 1941.

The second amended petition is of considerable-length and we shall endeavor to make as short a state-*333ment as will show the issues presented. The amended petition recites thirty paragraphs of claimed facts in addition to formal allegations.

It is alleged that the defendant’s predecessor (called the old company) was an insurance company under the California laws; that the new company is a corporation under California laws which has assumed the liabilities of the old company; that on April 16, 1929, the old company issued a policy to the plaintiff insuring him against disabilities and providing for the payment of benefits in the event he became disabled through sickness or otherwise; that on April 15, 1933, the plaintiff became and has since been totally disabled; that the old company paid plaintiff $300 monthly to February 15, 1934, and $150 monthly for March and April of that year but paid him nothing further until March 16, 1935, when it acknowledged its liability to plaintiff and paid the total amount of arrearages to which plaintiff was entitled.

It is alleged that when the policy was issued the old company knew that the reason for which the plaintiff entered into the contract was to enable him, in the event of disability, to have an income with which to maintain his life insurance policy in another company and that the contract was entered into and known to accomplish this particular purpose. It is recited that the plaintiff had a life insurance policy in the face amount of $25,000 upon which $111.75 premium became due on October 15, 1934, which the plaintiff could not pay for lack of funds and that the plaintiff was required to allow the policy to lapse to his damage in the sum of $25,000.

It is alleged that the old company knew of the financial condition 'of the plaintiff and that he could not pay his life insurance premium except through monthly payments to him of $300; that the plaintiff was com-' *334pelled to submit to medical examinations by duress and, for lack of his insurance payments, was required to make various trips in order that he and his family could live with friends and relatives, to his damage in the sum of $1,868.60.

The foregoing is the summary of the first cause of action which the court disposes of as in the entry above alluded to, stating that the substance of the petition was a claim for $101.25.

In the second cause of action it is alleged that his wife sustained serious impairments of her health in a nervous breakdown by reason of which plaintiff lost her services and was compelled to employ household help to his damage in the sum of $10,000.

The third cause of action is to the effect that plaintiff’s wife suffered impairment of her health in the sum of $5,000 and has assigned her claim to plaintiff.

The plaintiff admits that the full amount due and payable to him under the policy has been paid and that he is still receiving $300 a month. ITis complaint is that the old company, for a period of approximately a year, did not pay him $300 a month but instead made him a lump sum payment of approximately $3,600 at the end of the year and the plaintiff claims damages because of the delay in the following sums and for the following reasons:

$25,000 — plaintiff unable to pay premium of $111.75 on life insurance policies in the face amount of $25,000.

$1,868.60 — damages incident to examinations required by old company and incident to taking his family to friends and relatives who would keep them.

$25,000 — mental pain and anguish affecting his physical condition.

$10,000 — loss of services of his wife.-

$5,000 — his wife’s health was impaired which claim she assigned to plaintiff.

$66,868.60 — total damages.

*335As stated by counsel for plaintiff the sole question presented is whether an insurance company can be held liable as upon a breach of contract for damages in amounts in excess of the insured benefits contracted for because the company, through its agent, knew of the special purpose to which the insured contemplated applying any disability payments to which he might be entitled and thus contracted with reference thereto, or because of fraud, malice, bad faith and the like.

Defendant’s contention is as follows: The only damage for the breach of a contract is the amount contracted to be paid with interest from the date of breach; no further or other damages are recoverable even though there be averments that the parties contracted with reference to special damages or averments of fraud and malice.

The original petition was demurred to and the demurrer sustained, whereupon the first and second amended petitions were filed and demurrers thereto sustained. Each of the three decisions sustaining the demurrers was arrived at by a different judge of the Court of Common Pleas.

The nub of the matter is that the plaintiff appellant asserts a claim against the defendants to the effect that the defendants’ strenuous opposition to paying the claim under a contract of insurance resulted in incidental damages to him in the sum of $66,868.60 in addition to which he asserts his right to be paid, under the terms of the contract, $300 a month during his lifetime, for continual total disability.

Counsel have cited a number of cases in which courts have held that the failure to pay money under certain conditions gave rise to a cause of action in addition to the recovery of the money. We have examined *336these cases and can not bring ourselves to the view that the plaintiff is in the position of any of the litigants in the cited cases.

As to his claim for $25,000 for mental pain and anguish affecting his physical condition, mental pain and anguish is incident to any controversy by which the plaintiff is denied as prompt a payment of his claim as he might regard as justly due. He asserts a claim of $10,000 for the loss of services of his wife, but counsel have cited us no case in which such claim could arise out of the conditions plead. Plaintiff also asserts a claim of $5,000 for impairment to his wife’s health, which claim she assigned to the plaintiff. Counsel do not submit any authority justifying the allowance of this claim.

Three Common Pleas Court judges, for whose learning we have profound respect, have passed upon the questions hero presented to us and each has rendered judgment sustaining the defendant’s demurrer to the plaintiff’s petitions, the original and the two amendments being substantially identical.

We are not inclined in any way to depart from the judgment of the court below. We believe that the judgment there rendered was correct.

The judgment of the court below is sustained.

*Judgment affirmed.*

Barnes and Hornbeck, JJ., concur.