120 Mich. 596 | Mich. | 1899
This case presents a question which has never had the attention of this court, and one which, in some of its aspects, has not been considered by any other court of last resort, so far as we are advised. The plaintiff sues to recover damages on account of having been deprived of the right to give the remains of her deceased husband a Christian burial, and alleges that she was deprived of this right by the wrongful act of the defendant. At the common law there was said to be no property in a dead bod}’, and in one sense this may still be deemed an accurate technical statement; but it has been held in a number of well-considered American cases that the one whose duty it is to care for the body of the deceased is entitled to possession of the body as it is when death comes, and that it is an actionable wrong for another to interfere with that right by withholding the body or mutilating it in any way. Larson v. Chase, 47 Minn. 307 (28 Am. St. Rep. 370); Foley v. Phelps, (Sup.) 37 N. Y. Supp. 471; Burney v. Children’s Hospital, 169 Mass. 57 (61 Am. St. Rep. 273); 8 Am. & Eng. Enc. Law (2d Ed.), 834. This right is conceded.
Another question, not discussed in the original brief of appellant, although adverted to in its supplemental brief, may be whether, under the facts as claimed by plaintiff, the right of action exists in the widow for the destruction of fragments amputated from the body of her husband during his lifetime, when the evidence discloses the fact that such destruction occurred during the lifetime of the husband. As this question was not at all discussed in the original brief of counsel, we pass it by, and direct our attention to the points raised; and for the understanding of these points a brief statement of the facts is essential.
On the morning of June 2, 1897, Thomas A. Doxtator was working as a switchman with a gang of men in charge of John Dozeman, foreman of the West Side yards of the Chicago & West Michigan Railway Company. At about 6:30 a. m. Doxtator was run over by the cars and fatally injured. His injuries were extensive. His right
They reached the hospital at 5 minutes to 7 in the morning. The hospital force called Dr. Lupinski, who, on the arrival of Dr. Wooster, turned the case over to the latter. Dr. Wooster had exclusive control of the case, and was working under a general employment by the Chicago & West Michigan Railway Company. With the assistance of Dr. Lupinski and of Dr. Smith, the house physician of the hospital, he amputated the legs at about 8 o’clock in the morning. From the nature of the case, the doctors
- The theory of the plaintiff is that, when the railroad company lifted Doxtator from the ground, it took upon its shoulders a duty, and that duty was to care for him while he should live, and at his death deliver his remains, and the whole of 'them, over to his wife for burial'; that the company did not do this, but, instead, negligently allowed the cremation of the dissevered limbs, and is therefore liable to the widow in damages. It becomes important, therefore, to inquire just what duty the railroad company was under, and just how far it assumed control over the injured man. This question must, in the main, be determined as one of first impression, as no case analogous has been cited, and our research has not been more successful than that of the learned counsel on either side of the case, who are to be commended for the exhaustive examination which they have given the subject. When this accident occurred, the common instincts of humanity forbade that
What, then, was the obligation assumed by Dr. Woostér ? He found the patient in an appropriate hospital, with another surgeon in attendance, apd, as he says, assumed charge of the case. Dr. Lupinpki continued to assist. Did Dr. Wooster, by thus assuming charge of the case, take upon himself, as the agent of jthe railroad company, the duty of seeing to it that, when death ensued, the body
Under the testimony, the defendant was entitled to a directed verdict.
Judgment will be reversed, and a new trial ordered.