83 S.E. 12 | N.C. | 1914
Lead Opinion
This action was brought by the feme plaintiff to recover damages for the negligent mutilation of the dead body of her son, Grady O’Berry Floyd, who, it is alleged, bad theretofore been killed by one 'of the defendant’s trains. The plaintiff’s counsel state very frankly in their brief that the action is one solely in behalf of the feme plaintiff, her coplaintifif and husband being joined with her as a nominal party under the statute, and disavowing any right to recover in his behalf. It is, therefore, to be regarded as her suit, and not as his.
In the start it may be taken as settled by us in Kyles v. R. R., 147 N. C., 394, that the cause of action set out in the complaint is recognized as a legal one, and plaintiff is entitled to recover damages, provided she is the party entitled to sue for them, and establishes her case before the court and jury. These authorities may be added to those cited in the Kyles case: “At common law there can be no property in a dead human body, and after burial of such dead body it becomes part and parcel of the ground to which it was committed. Nevertheless, the right to bury a corpse and preserve its remains is a legal right which the.courts will recognize and protect. "While the body is not property in the usually recognized sense of the word, yet it may be considered as a sort of quasi property, to which certain persons may have rights, as they have duties to perform towards it, and the right to dispose of a corpse by decent sepulture includes the right to the possession of the body in the same condition in which death leaves it.” 13 Cyc., 267-268. “In more recent times the obdurate common-law rule has been very much relaxed, and changed conditions of society and the necessity for enforcing that protection which is due to the dead have induced courts to reexamine the grounds upon which the common-law rule reposed, and have led to modifications of its stringency. The old cases in England were decided when matters of burial and the care of the dead were within the jurisdiction of the ecclesiastical courts, and they are not longer absolutely controlling.” Foley v. Phelps, N. Y. App. Div., 551, 555 (37 N. Y. Supp., 471). And again, in the same case: “The right
The judge below ruled that plaintiff was not the proper party to sue, but that the father- of the deceased is the proper party, and the cause of action, if it exists, belongs to him. He therefore gave judgment of nonsuit, and plaintiff appealed.
The recovery is claimed for mental anguish, caused by the mutilation of the body. It is said in the Kyles case, at pp. 398 and 399: “The right to the possession of a dead body for the purpose of preservation and burial belongs, in the absence of any testamentary disposition,-to the surviving husband or wife or next of kin, and when the widow was living with her husband at the time of his death, her right to the possession of the husband’s body for such purpose is paramount to the next of kin. Larson v. Chase, 47 Minn., 307. A widow has a right of action for the unlawful mutilation of the remains of her deceased husband. Larson v. Chase, supra; 28 Am. St., 370; Foley v. Phelps, 37 N. Y. Supp., 471. While a dead body is not property in the strict sense of the common law, yet the right to bury a corpse and preserve its remains is a legal right which the courts will recognize and protect, and any violation of it will give rise to an action for damages. 8 A. and E. (2 Ed.), 834, and cases cited; 13 Cyc., 280, and cases cited. While the common law does not recognize dead bodies as property, the courts
In that case the widow sued’ for the mutilation and disfigurement of her husband’s body. Here the mother sues for the wrong done her in the mutilation of her son’s body, the father being still alive. Can she do so? is the question for us to decide.
It is said in 13 Cyc., at p. 281, that “An unauthorized and unlawful mutilation of a corpse before burial gives rise to an action for damages in favor of the surviving husband or wife or next of kin. So the next of kin of a dead person has a cause of action against a carrier for an injury to the body of such deceased person caused by the negligent act of the carrier while transporting it for hire.” And in Burney v. Children’s Hospital, 169 Mass., 57, it appeared that a child died in a Boston hospital and an autopsy was performed upon the body without any authority from the parents. It was held that the father of the child, being its natural guardian, and after its death having a right to the possession of the body for burial, could maintain an action for damages against the hospital authorities for such unauthorized autopsy, and the Court held that “As in the case at bar there was no executor, and there could be none, as the deceased was a minor, the father, as the natural guardian of the child, was entitled to the possession of its body for burial. Being entitled to the possession of the body for the purposes of burial, is not his right against one who unlawfully interferes with it and mutilates it as great as it would be if the body was buried in his lot, and was.thence unlawfully removed? That an action may be maintained in the latter case we have already seen; and we are of opinion that it may be in the former.” Speaking to the same question in Bogert v. Indianapolis, 13 Ind., at p. 138, the Court said: “We lay
Whatever was formerly the law under Eev. Code, ch. 64, sec. 1, and subsecs; 5 and 6; Revisal, ch. 1, sec. 132, subsecs. 5 and 6 (Gillespie v. Foy, 40 N. C., at marg. p. 282 of Anno. Ed.); Public Laws 1911, ch. 172; Pell’s Eevisal (Supplement), see. 132, p. 4, the law has now been made clear, as that act provides that “If in the lifetime of the father any of his children shall die intestate without wife or children, then the father shall be entitled to all of the personal property of such deceased child.” This was an amendment to Eevisal, sec. 132, subsec. 6. When the father is' dead the former law is in force, and if there is no widow or children of the deceased child, the mother and brothers and sisters take equally as distributees; and if there is a widow, she and the mother take equally. Wells v. Wells, 156 N. C., 246 (on rehearing, 158 N. C., 330). But the latter question, where there is no father, does not arise in this ease, and we only mention it incidentally and in passing. We are concerned, though, with the recent clear and explicit statement of the law in Laws 1911, ch. 172, by which the father is made next of kin or nearest relative of his child, to the exclusion of the mother. He is thq natural guardian of his child, as we have seen, and while there may have been formerly some doubt as to his status in the succession to his deceased child’s personal estate, there can be none since the passage of that act, which applies to this case, as the death occurred in April, 1912, after the act took effect. There is, therefore, every reason why he should be preferred to the mother. When a contest arises between them as to the child’s custody, and there is no personal disqualification of thé father, he is given the preference. Harris v. Harris, 115 N. C., 587; Newsome v. Bunch, 144 N. C., 15; In re Turner, 151 N. C., 474. He is primarily liable for the support, maintenance, and education of his child, as between himself and its mother. 29 Cyc., 1606. He is entitled to its services and earnings. Ibid., 1623; Williams v. R. R., 121 N. C., 512, where Justice Clark (now Chief Justice) says: “For the services the son had rendered, compensation belonged to the father.” And in 29 Cyc., at p. 1637 ei seq., it is said: “A parent has, as a general rule, a right of action against a person whose wrongful act or omission has caused an injury to the child. As between the parents, this right belongs, primarily, to the father;.but, as a general rule, is given to the mother where, by reason of the father’s death or otherwise, the right to the custody and services of the child has devolved upon her. The parent’s right to recover for an injury to the child rests upon the doctrine of compensation. It is generally
There are many other primary rights and responsibilities of the father with respect to his child which could be enumerated, but those already mentioned will suffice to show the general trend of the law with regard to his priority of claim and interest as against the other. If he is entitled to the preferential right to sue in the cases we have recited, why not where the body of the child, with whose decent burial he is charged, has been mutilated or disfigured after death? “At common law it was the duty of the father to decently inter his child and defray necessary expenses thereof, if he possessed the means.” Would it not seem to follow logically and naturally, as the night the day, that if he must attend to its decent burial, he is entitled to recover for any indignity to or defacement of the body by which its decent interment is prevented or rendered more difficult? We are unable to perceive why this is not so.
It seems to be settled that the right to sue in a case of this kind must go to the next of kin in the order of their seniority of rank as fixed by the law, the father, in respect to a deceased child, being placed at the head of the class which may take in succession from the child, and there is no double headship, in which he shares this right with the mother. When he dies, the mother goes to the front; and if she be.dead, then the next of kin who are in equal degree of kinship are advanced to this position. It is said in Iredell on Executors, pp. 559 and' 560 : “The next of kin referred to by the statute are to be ascertained by the same rules of consanguinity as those which determine who are entitled to letters of administration. These rules have been already considered, but it may be convenient to repeat in this place some of their results. When a child dies intestate, without wife or child, leaving a father, the
"We have been referred by learned counsel of the plaintiff to Davis v. R. R., 136 N. C., 115, as establishing the principle in this State that the father and mother are jointly the beneficiaries, under the statute of distributions already cited, of any recovery for the death of the child caused by negligence or a wrongful act; but this is not so, as an examination of that case will show. The Chief Justice there expressly says: “We refrain from passing upon the point, because it is not raised in this record, but it may become pertinent in another trial.” Even that- question is specially left open for future decision, when presented. But that is not the point here, and even if that question had been decided, as counsel supposed it had been, it would not necessarily alter our conclusion, and certainly not since the law has been changed by Laws 1911, ch. 172. Nor does Laws 1913, ch. 13, giving to a married woman her earnings, under a contract for her personal services, and any damages for personal injury to her or other tort sustained by her, have any bearing upon the case. The law of 1911 is explicit beyond the possibility of cavil, that the father shall be considered as next of kin to his child. As the male plaintiff has expressly entered a dis.claimer in this case of any damages for the mutilation, and the case therefore rests solely upon the right of the feme plaintiff, the judge’s ruling was obviously correct.
A cursory reading of Price v. Electric Co., 160 N. C., 450, will show that it has no application to this case. There the husband and wife were conceded to have separate and distinct causes of action, and the husband having consented .that his damages, for loss of her services, might be included in the judgment in favor of his wife, was estopped thereby to set up thereafter any claim to his said. damages. There could not be two recoveries for the loss of his wife’s services — one by her, with his consent, and then one by him. Having given up his cause
Affirmed.
Dissenting Opinion
dissenting: There is, strictly speaking, no property in a dead body, though' its possession can be recovered. This is not an action to recover the possession of the body, but an action of tort for the mental anguish caused the mother by the wrongful mutilation of the body of her son.
The statute of distributions has no application. In Kyles v. R. R., 147 N. C., 394, it was held that the widow could recover punitive damages for mutilation of the dead body of her husband. This proves that an action for. the tort is not required to be brought by the next of kin, for the widow is not the next of kin of her husband. This action is a tort to be sued for by the person who most naturally would have suffered mental anguish by reason of the wrongful mutilation and indignity inflicted oh the body of the dead son. He was 18 years old and the support of his mother. Her husband is an invalid, but was joined as a plaintiff as in Price v. Electric Co., 160 N. C., 450.
In that case, where the husband was joined in an action with his wife to recover damages for a personal injury to them both arising from the same negligent act, and' his counsel withdrew all claim for damages for him, and the action was successfully prosecuted to recover damages for the injuries inflicted on the wife, including personal and physical anguish and loss of time, the Court held that she could recover. This case is exactly like that, and the judgment in her favor could be recovered, even as the law formerly stood.
But in fact the position of the wife is rendered much stronger by the act which was immediately passed as soon as the next General-Assembly met, chapter 13, Laws 1913, which provides, among other things: “Any damages for personal injuries or other tort can be recovered by her suing alone.”
This is a tort pure and simple, and the wife is entitled to recover for it just as she has recovered in actions for failure to deliver a telegram whereby she as-well as her husband has suffered mental anguish. Gerock v. Tel. Co., 147 N. C., 7. This action is for mental anguish and damages suffered by her and not by the estate of her son, who was 18 years of age. If an action had been brought for his wrongful death, it should have been brought by the administrator.
The court granted a nonsuit upon the ground that the wife was not the “next of kin,!’ but that the husband was. If so, he was also a party. The statement is incorrect as a matter of fact. It is true that chapter 172, Laws 1911, does amend the statute of distributions, by pro
The plaintiff is entitled to recover as a matter of justice and of right under the legislation enacted for the benefit of married women in such cases under chapter 13, Laws 1913.
Lead Opinion
CLARK, C. J., dissenting. This action was brought by the feme plaintiff to recover damages for the negligent mutilation of the dead body of her son, Grady O'Berry Floyd, who, it is alleged, had theretofore been killed by one of the defendant's trains. The plaintiff's counsel state very frankly in their brief that the action is one solely in behalf of the feme plaintiff, her coplaintiff and husband being joined with her as a nominal party under the statute, and disavowing any right to recover in his behalf. It is, therefore, to be regarded as her suit, and not as his.
In the start it may be taken as settled by us in Kyles v. R. R.,
The judge below ruled that plaintiff was not the proper party to sue, but that the father of the deceased is the proper party, and the cause of action, if it exists, belongs to him. He therefore gave judgment of nonsuit, and plaintiff appealed.
The recovery is claimed for mental anguish, caused by the mutilation of the body. It is said in the Kyles case, at pp. 398 and 399: "The right to the possession of a dead body for the purpose of preservation and burial belongs, in the absence of any testamentary disposition, to the surviving husband or wife or next of kin, and when the widow was living with her husband at the time of his death, her right to the possession of the husband's body for such purpose is paramount to the next of kin.Larson v. Chase,
In that case the widow sued for the mutilation and disfigurement of her husband's body. Here the mother sues for the wrong done her in the mutilation of her son's body, the father being still alive. Can she do so? is the question for us to decide.
It is said in 13 Cyc., at p. 281, that "An unauthorized and unlawful mutilation of a corpse before burial gives rise to an action for damages in favor of the surviving husband or wife or next of kin. So the next of kin of a dead person has a cause of action against a carrier for an injury to the body of such deceased person caused by the negligent act of the carrier while transporting it for hire." And in Burney v. Children'sHospital,
Whatever was formerly the law under Rev. Code, ch. 64, sec. 1, and subsecs. 5 and 6; Revisal, ch. 1, sec. 132, subsecs. 5 and 6 (Gillespie v.Foy, 40 N.C. at marg. p. 282 of Anno. Ed.); Public Laws 1911, ch. 172; Pell's Revisal (Supplement), sec. 132, p. 4, the law has now been made clear, as that act provides that "If in the lifetime of the father any of his children shall die intestate without wife or children, then the father shall be entitled to all of the personal property of such deceased *95
child." This was an amendment to Revisal, sec. 132, subsec. 6. When the father is dead the former law is in force, and if there is no widow or children of the deceased child, the mother and brothers and sisters take equally as distributees; and if there is a widow, she and the mother take equally. Wells v. Wells,
There are many other primary rights and responsibilities of the father with respect to his child which could be enumerated, but those already mentioned will suffice to show the general trend of the law with regard to his priority of claim and interest as against the other. If he is entitled to the preferential right to sue in the cases we have recited, why not where the body of the child, with whose decent burial he is charged, has been mutilated or disfigured after death? "At common law it was the duty of the father to decently inter his child and defray necessary expenses thereof, if he possessed the means." Would it not seem to follow logically and naturally, as the night the day, that if he must attend to its decent burial, he is entitled to recover for any indignity to or defacement of the body by which its decent interment is prevented or rendered more difficult? We are unable to perceive why this is not so.
It seems to be settled that the right to sue in a case of this kind must go to the next of kin in the order of their seniority of rank as fixed by the law, the father, in respect to a deceased child, being placed at the head of the class which may take in succession from the child, and there is no double headship, in which he shares this right with the mother. When he dies, the mother goes to the front; and if she be dead, then the next of kin who are in equal degree of kinship are advanced to this position. It is said in Iredell on Executors, pp. 559 and 560: "The next of kin referred to by the statute are to be ascertained by the same rules of consanguinity as those which determine who are entitled to letters of administration. These rules have been already considered, but it may be convenient to repeat in this place some of their results. When a child dies intestate, without wife or child, leaving a father, the latter is (61) entitled, as the next of kin in the first degree, to the whole of the personal estate of the intestate, exclusive of all others. Formerly, if a child had died intestate, without a wife, child, or father, his mother was entitled, as the next of kin in the first degree, to his whole personal estate; but now, by our statute, every brother and sister, and the representatives of them, shall have an equal share with her. The principle of this provision is, that otherwise the mother might marry and transfer all to another husband." It may be well to note that the recent legislation of the Congress, known as the Federal Employers' Liability Act, places the father in the forefront of those allowed to recover for the death of his son caused by negligence of the employer while the son was engaged in interstate commerce, where there is no surviving husband, widow, or children of the deceased child, as in this case. See Thornton's Emp. L. and S. Acts, sec. 79. *97
We have been referred by learned counsel of the plaintiff to Davis v. R.R.,
A cursory reading of Price v. Electric Co.,
Affirmed.