154 Misc. 497 | N.Y. Sup. Ct. | 1935
The plaintiff herein is engaged in the business of an undertaker. He seeks to assert and foreclose an alleged hen upon a policy of life insurance in his possession which insured the Ufe of Christ Pappas, the deceased husband of the defendant Louise Pappas, who was the beneficiary named in this policy. At the time of the death of Christ Pappas his widow was in Greece. She did not return to this country until several weeks thereafter. In this interval the defendants Thomas Pappas and Louis Pappas, brothers of the deceased, having failed to hear or to receive instructions from the defendant Louise' Pappas regarding the burial of her late husband, requested the plaintiff herein to arrange for and carry out the burial of the decedent and delivered to the plaintiff the policy of insurance on which the lien is asserted. The plaintiff, pursuant to these instructions, performed the services for the burial and furnished, among other things, a casket valued at $500, twenty-two limousines and two flower cars. The defendant Louise Pappas, on her return to the United States, disclaimed responsibility for any indebtedness to the plaintiff for the services rendered in the burying of her deceased husband. The plaintiff claims that the value of the fmieral services and expenses was $1,540. The jury rendered a special verdict, which in effect determined that the plaintiff’s charges were reasonable and consistent with the decedent’s station in fife. There was reserved the question whether the defendant Louise Pappas personally was under any legal obligation to pay the plaintiff for the funeral expenses incurred in the burial of the decedent. This is the question now to be determined.
An examination of the law of this State has failed to disclose a precedent in point. The law is well settled that in the absence of a testamentary direction on the part of a deceased, the right to the possession of the dead body for the purpose of preservation and burial belongs to the surviving husband or wife or next of kin. The rule is subject to modification, depending upon the peculiar circumstances in each case. (Birch v. Birch, 123 Misc. 229, arid cases there cited; Matter of Billman, 143 id. 765; Gostkowski v. Roman Catholic Church, etc., 262 N. Y. 320.)
Is the separate estate of a surviving spouse subjected to liability to pay for the funeral expenses incurred in the burial of the deceased spouse? There is no question that a husband at common law was under a legal obligation to bury his deceased wife and was hable for the funeral expenses incurred. (Jenkins v. Tucker, 1 H. Bl. 90.) Furthermore, if the husband failed to perform his duty, he was hable in an action to recover the reasonable value of its performance by any person who, on account of his absence or neglect properly incurred the expense of the necessary burial. (Watkins v. Brown, 89 App. Div. 193, 194; McCue v. Garvey, 14 Hun, 562; Patterson v. Patterson, 59 N. Y. 574, 583.) This liability of the husband “ is sometimes placed in whole or part on the ground of common decency; but it is generally deemed to be included in, or to be incident to, or to grow out of, the duty toi support and maintain the wife while hying and to furnish her with necessaries.” (30 C. J. 606.) (Gustin v. Bryden, 205 Ill. App. 204; Beverly v. Nance, 145 Ark. 589; 224 S. W. 956; Matter of Weringer, 100 Cal. 345; 34 P. 825; Kenyon v. Brightwell, 120 Ga. 606; 48 S. E. 124; Cunningham v. Reardon, 98 Mass. 538; Smyley v. Reese, 53 Ala. 89; 13 R. C. L. 1213.)
No obligation by the wife to furnish necessaries to her husband existed at common law. Thus, it has been held that a married woman is not hable for medical services rendered to her husband and/or the family unless she has bound her separate estate by express agreement for the payment of such services. (Hazard v. Potts, 40 Misc. 365; Richards v. Young, 84 N. Y. Supp. 265.)
No obligation to pay for the funeral expenses of her husband can be fixed upon the widow if the authority of the law, as it has been expressed in decisions heretofore rendered, is to be accepted. The courts of other jurisdictions have refused to impose this liability upon the widow. (O’Hagan v. Fraternal Aid Union, 144 S. C. 84; Compton v. Lancaster, [Ky.] 114 S. W. 260; Hayden v. Maher, 67 Mo. App. 434; 13 R. C. L. 224, p. 1193; 30 C. J. 609; note, 18 Ann. Gas. 856; Schouler, Marriage, Divorce, Separation and Domestic Relations [6th ed.], vol. 1, § 114, p. 139.) And this has been held, despite the fact that the widow requested the services of the undertaker, in the absence of a direct promise on her part to pay for the services, (Hayden v„ Maher, supra.)
It appears, therefore, from these authorities that an undertaker must look to the estate of the deceased for the payment of his services and has no relief against the widow of a deceased for the decedent’s funeral expenses in the absence of an express promise or agreement on her part to pay for them. The question now presented is whether this court should accept the law as it has been found in other jurisdictions, which holds that a widow in the absence of an express promise may not in any case be charged with funeral expenses of her deceased husband. I think not. Where the question is one of general jurisprudence, decisions rendered in another State if in point may be entitled to respectful consideration if well reasoned, promotive of justice, and well supported by the general current of authority, but they are not technically of force as precedents. Such decisions may be followed, if the court hearing the cause approves their reasoning and conclusions, but the court is at perfect liberty to disregard them. (Black Law of Judicial Precedents, p. 401; 26 Am. & Eng. Ency. of Law [2d ed.], p. 162; Boyce v. City of St. Louis, 29 Barb. 650, 654.)
Since no precedent in this State has been found in point, this court is not bound to adhere to the decisions rendered in other jurisdictions. The liability of a widow for her husband’s funeral expenses should, therefore, be examined on principle and in the light of the circumstances and conditions of present-day society.
With the present-day tendency to emancipate women completely and confer on them rights which heretofore have been denied, it may well be said that their obligations to some extent have increased and in other respects ought to be increased. It must be recognized that the conditions and times of the twentieth century are different fro'm those which existed in the days of Coke, Blackstone and Littleton. The status of women during the seventeenth, eighteenth and nineteenth centuries and today is as radically different as the
It is a chief concern of the public that the dead have a decent burial, not merely because the statutes provide therefor (Penal Law, § 2211; Public Welfare Law, § 154), but also because some adequate disposal of the body is essential to the preservation of the public health, and a decent burial is dictated by a proper public sentiment and respect for the dead. (Matter of Kulyk, 150 Misc. 307.) As has been stated by our Court of Appeals in the case of Patterson v. Patterson (supra, at p. 585): “ The decent burial of the dead is a matter in which the public have concern. It is against the public health if it do not take place at all (The Queen v. Stewart, 12 Ad. & Ell. 773), and against a proper public sentiment that it should not take place with decency. (Kanasan’s Case, 1 Greenl. 226; see Jones v. Ashburnham, 4 East, 460; Regina v. Fox, 2 Q. B. 246.) ”
The law has created certain rights and privileges in and to the body of a deceased which go with the right to bury a deceased. These rights include, among others, the right to sue for damages if the body is violated before burial (Foley v. Phelps, 1 App. Div. 551), or interfered with after death (Gostkowski v. Roman Catholic Church, etc., supra). These rights carry with them the obligation to bury the dead (Matter of Kulyk, supra), unless special circum
Assuming, therefore, that a woman is under obligation to provide for the disposition of the body of her deceased husband where his estate is inadequate, the question then arises, to what extent is her personal estate financially bound? There is no public concern in the disposal of the body except to see that it is decently done. At common law we have seen it was provided that it was the duty of him under whose roof the body of a deceased poor person lay, to carry it, decently covered, to the place of burial. (The Queen v. Stewart, supra.) Concomitant with the right of burial is the right to determine the manner and place of interment, subject to special circumstances. (Birch v. Birch, supra; Matter of Richardson, 29 Misc. 367; Johnston v. Marinus, 18 Abb. N. C. 72.) There is no obligation upon a widow to pay for the funeral expenses to bury her deceased husband with pomp and ceremony or in the style his position in life might have seemed to indicate to others, where his estate is incapable of paying for it.
In the instant case the defendant Louise Pappas had no knowledge of, and gave no consent to, the elaborate funeral prepara
In the instant case the plaintiff did not receive the pohcy from or pursuant to the directions of the defendant Louise Pappas and the plaintiff never obtained and has no hen on the pohcy which can be foreclosed even if he might have a cause of action against the widow of the deceased for such sum as would be required to give her deceased husband a decent burial. Entertaining these views it follows that there must be judgment for the defendant Louise Pappas.