SMITH, C. J. (after stating the facts as above).

This is a suit in which a judgment for damages was rendered in favor of appellee for an alleged breach of a contract on the part of appellant.

Several weeks prior to the 14th day of September, 1912, appellant entered into a contract with appellee's husband, for her benefit, to attend and render to her medical assistance at her approaching accouchement, for which he was to receive the sum of $20. This money according to appellant, was to be sent him by the messenger who should summon him to appellee's bedside, but according to Moffett nothing was said about the payment being made in advance. About 10 o'clock on the night of Friday, the 14th day of September, appellee was attacked by what she supposed to be labor pains. Whereupon a messenger was sent to appellant, who lived in a village about six miles distant, to come at once, the sum of $12.50 being sent by this messenger to be delivered to the doctor along with the message; that being all the money Moffett then had. This message was delivered to appellant at the home of another female patient, who was then also about to be delivered of a child. At what hour this message was actually delivered to appellant, if the same is of importance, does not appear, but the messenger left Moffett's residence about 10 o'clock p. m. and returned before 2 o'clock a. m. Appellant could not leave the patient he was then attending, so that this messenger sought to obtain the services of two other physicians in the village, but, having failed to do so, returned to appellant and again requested that he attend appellee. Appellant agreed to attend Mrs. Moffett, and told him to tell her husband that he thought he could leave his then patient in about an hour and a half, and that if he could not leave within that time "he would get up there between then and daylight," and also to tell Moffett that in event, he, appellant, should not be needed for Moffett, "to let him know at his expense and save him the trip up there." According to the testimony of appellant, the message he sent Moffett was as follows:

"I told him to tell Mr. Moffett I would be up there to-night, provided I got through with Mrs. Lott. If I didn't come that night to wire me the next morning at my expense, if his wife was still sick I would come in the morning, to save me the drive up there."

The patient appellant was then attending was not delivered of the child, and continued to require his immediate attention until about 6 o'clock p. m. of the next day. When Moffett's message was delivered to appellant the messenger also gave him the money sent by Moffett, which he, appellant, accepted and retained. Mrs. Moffett's child was not born until the night of the following Thursday, she having then obtained the services of another physician. There was some testimony of physicians that Mrs. Moffett must have been mistaken in thinking that she was suffering from labor pains when her husband sent for appellant; that her pains must have been "false" instead of real labor pains, but that if false the pain could have been relieved by a physician. On the contrary, Mrs. Moffett stated that she had given birth to a number of children, that she knew labor pains from past experience, and that had Dr. Hood attended her on the night or morning after he was sent for she would have been delivered of the child within two or three hours. She suffered pains stated by her to be labor pains at intervals from Friday night until Thursday night. Appellee's husband stated that he went to appellant's office Monday afternoon to see him about the matter, but that he was absent at a lumber camp some distance away. Appellant stated that had he been again requested to attend Mrs. Moffett he would have done so, provided the remainder of the fee was paid; that he kept the $12.50, intending to apply it in event he should not be called upon to attend Mrs. Moffett to an indebtedness then due him by Moffett for services rendered to his family in the past.

The errors claimed by counsel for appellant to have been committed in the court below are, in substance, as follows:

(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, 32 Miss. 17, 66 Am. Dec. 588, this question was answered in the negative. Appellant's contract in this respect was without qualification, and the rule is that "as a man consents to bind himself so shall he be bound." 3 Elliott on Contracts, § 1891.

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 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, § 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 $150, it cannot be said that the jury responded to the instruction and included in the verdict an award for punitive damages.

Affirmed.