123 Wis. 453 | Wis. | 1904
This action presents a field for consideration uncharted by any direct decisions in this court. The primary and general question is whether any relative, having the conventionally recognized duty of providing proper obsequies and sepulture for the remains of a deceased relative, has any rights, enforceable by courts, to be protected in the *457
performance of that service. It is said the law protects only the person and the purse (Chapman v. W.U. Tel. Co.
"That there is no right of property in a dead body, using the word in its ordinary sense, may well be admitted. Yet the burial of the dead is a subject which interests the feelings of mankind to a much greater degree than many matters of actual property. There is a duty imposed by the universal feelings of mankind to be discharged by some one towards the dead; a duty, and we may also say a right, to protect from violation; and a duty on the part of others to abstain from violation. It may therefore be considered as a sort of quasi-property, and it would be discreditable to any system of law not to provide a remedy in such a case." "And a sort of right of custody over, or interest in, the dead body, in the relatives of the deceased, is recognized in the statutes of many of our states." "We may consider it [the body] as a sort of quasi-property, to which certain persons may have rights, as they have duties to perform arising out of our common humanity. But the person having charge of it cannot be considered as the owner of it in any sense whatever. He holds it only as a sacred trust for the benefit of all who may, from family or friendship, have an interest in it."
From these views the court deduced the conclusion that a court of equity might control the exercise of those rights by one relative, with due regard to the interests of others or of the public, in suggested analogy to control over the custody *459
of children by their parents. It was accordingly held, without deciding as to the relative rights of control as between the widow and the children over the original interment, that under the circumstances the widow ought not to remove a body already buried. Since these early cases the questions of the existence of such a right, and of the person in whom it is vested, under varying circumstances, have been discussed under many phases in different states. A partial list of such cases is as follows:Foley v. Phelps, 1 Ohio App. Di v. 551,
1. For the purposes of this case we shall not deem it necessary to consider whether a corpse can be, in any respect, property. From the authorities above cited, and from original reason, the conclusion seems to us irresistible that in the nearest relative of one dying, so situated as to be able and willing to perform the duty of ceremonious burial, there vests the right to perform it, and that this is a legal right, which, *460
as said in some of the cases, it is a wrong to violate, and which, therefore, courts can and should protect and vindicate. It is not alone with reference to property that legal rights exist, nor is it only those invasions of legal rights causing tangible pecuniary injury for which courts will entertain civil actions and award damages. It is difficult to discover any money loss necessarily resulting from an assault without physical contact; an obstruction of the right to vote; expulsion from car without physical contact or injury; malicious prosecution; the secreting or even the seduction of a daughter; the mere alienation of a wife's affections, affecting only the sentimental relations. Yet courts find no difficulty in entertaining such actions and awarding compensatory damages. In such cases the clear legal right of exemption from such wrongful acts is itself the property. An injury to such a right need not include either an injury to physical property nor to person or character. Gibbs v. Larrabee,
True, there are instances of invasion of a clear legal right where the common law has denied any action, out of considerations of public policy or impracticability of accomplishing justice; and there are other instances where the common law, when transplanted across the Atlantic, had not been declared. The question presented in Duffies v. Duffies,
Turning for aid to the decisions of the courts of other states, we find that the question now before us has been several times considered, and that those courts have, with striking unanimity, declared in favor of the maintenance of such an action as this. Larson v. Chase,
"But this whole subject is only obscured and confused by discussing the question whether a corpse is property in the ordinary, commercial sense, or whether it has any value as an article of traffic. The important fact is that the custodian of it has a legal right to its possession for the purposes of preservation and burial, and that any interference with that right by mutilating or otherwise disturbing the body is an actionable wrong. And we think it may be safely laid down as a general rule that an injury to any right recognized and protected *463 by the common law will, if the direct and proximate consequences of an actionable wrong, be subject for compensation."
We confess our inability to escape, if we would, this logic. We can imagine no clearer or dearer right in the gamut of civil liberty and security than to bury our dead in peace and unobstructed; none more sacred to the individual, nor more important of preservation and protection from the point of view of public welfare and decency; certainly none where the law need less hesitate to impose upon a wilful violator responsibility for the uttermost consequences of his act. We recognize, of course, that public welfare may and does require governmental control in many respects for protection of life and health of the people, and for discovery of crime connected with the death of a person, and to such interests the private right is subservient so far as necessary. Upon this ground rest cases of autopsies upon dead bodies under public authority, and to satisfy police regulations for ascertainment of cause of death.Young v. College,
2. The question whether anything more than nominal damages can be recovered has been earnestly argued by counsel and is only second in importance to that of the existence of any cause of action at all, for, obviously, in cases of this character, any pecuniary loss to plaintiff must usually be merely trifling. The great injury done consists in the outrage upon the sensibilities. Can such injury be considered as legal damage, otherwise than by way of imposing punitory damages in case of actual malice? It is settled in this as in most jurisdictions that mental suffering may be an actual injury, for which award is to be made strictly as compensation in proper cases. Wilson v. Young,
"The rule for which appellant contends has been applied only to cases of negligence or of alleged personal injury, where the mental suffering can result only from the injury, and not from the tort. It has never been applied to cases of malice, such as false imprisonment and slander."
In Larson v. Chase,
*467"Every injury imports a damage. Hence the complaint stated a cause of action for at least nominal damages. We
think it states more. There has been a great deal of misconception and confusion as to when, if ever, mental suffering, as a distinct element of damage, is a subject for compensation. This has frequently resulted from courts giving a wrong reason for a correct conclusion that in a given case no recovery could be had for mental suffering; placing it on the ground that mental suffering, as a distinct element of damage, is never a proper subject of compensation, when the correct ground was that the act complained of was not an infraction of any legal right, and hence not an actionable wrong at all, or else that the mental suffering was not the direct and proximate effect of the wrongful act. . . . But where the wrongful act constitutes an infringement of a legal right, mental suffering may be recovered for, if it is direct, proximate, and natural result of the wrongful act."
In Lombard v. Lennox,
"If the ordinary and natural consequence of the tort is to cause an injury to the feelings of the plaintiff, and if the acts are done willfully or with gross carelessness of the right of plaintiff, damages may be recovered for mental suffering."
Similar views are expressed by text-writers. 1 Sedgwick, Dam. (8th ed.) §§ 43 to 47; 1 Sutherland, Dam. § 95 et seq.; 2 Kinkead, Torts, § 463.
These expressions from other courts are perhaps useful as indicating the philosophy involved in distinguishing between those torts which may and those which cannot be deemed to so proximately cause sense of outrage and mental suffering that the law will recognize such effect as an independent element of recoverable damage, whether resulting merely from some other injury, or directly from the tort itself; but they do not, in our judgment, vary or enlarge the field charted and delimited in theSummerfield Case, as above quoted. For the present case we are convinced that sufficient guide can be found in the catalogue there promulgated. Certainly this complaint asserts a "willful wrong," not only in the sense that some injury to plaintiff's legal rights was intended, but also *468
that an affront to his feelings was so certain to be caused by the defendant's act that the latter must be deemed to have intended that particular injury. We also think that, without undue stretch of meaning, the wrong complained of affects the "domestic relations" — otherwise called the relative rights — of plaintiff. The duty of surviving spouse, parent, or child to provide proper burial for the corpse springs from the relationship to the person deceased. The desire to perform such service is founded in that respect and affection entertained for the relative, of whom the body, it is true, is but the symbol, but, for the few hours after life ceases, seems so to still represent him who was, that acts of care and protection to it are still paid to such departed. Mr. Kinkead says, "The family tie takes us to the last resting place of our dead" (2 Torts, § 459), and therefore classes torts of the kind here presented as committed against the relative rights growing out of the domestic relations, like seduction or abduction of wife or child. Mr. Cooley likewise so classifies them. Torts (2d ed.) p. 280. Recognition that duties arising in the domestic relation persist beyond death is not wanting in the law. Upon that idea is predicated the liability of the surviving husband for burial expenses incurred by a stranger for the body of his deceased wife, in strict analogy to necessaries furnished her in life. Bradshaw v. Beard, 12 C.B. (N.S.) 344; Cunningham v. Reardon,
3. The remaining question is whether the right of custody and burial, and resulting right of action for violation thereof, are in the plaintiff. As a result of the decisions and discussions above cited, it cannot be doubted that in the United States, where no ecclesiastical establishment, as a part of the government, equipped with executive and judicial powers as weapons, assumes to itself all authority and right over the dead body before burial, and over both the body and its place of sepulture afterwards, there exists in some individual both the duty and the right to provide to a human body that disposition which general welfare requires, with such ceremonies as convention, respect, and religion dictate. While in the case of one who died remote from those of closer affinity the mere relationship of contact may suffice to arouse such duty in absence of statutes giving charge to some public officer, in normal conditions of human relationship common consent and *470
custom recognize the right and the duty to rest upon those who bore to the deceased in life the closest personal intimacy of acknowledged and lawful relationship. This because, while a duty, the preparation and consignment to final resting place of all that remains of a departed relative is recognized among all civilized peoples as a privilege to continue so far beyond the limit of life that personal service, tenderness, and respect which normally characterized the pre-existing relations. Fiction it may be, but none the less actual, that the attitude of the widower in conferring upon the body of his departed wife — the parent to that of his child — is personal. The body is not the person, but, perhaps unconsciously, is so viewed and treated for the purpose of these last rites of affection. Our statutes give general recognition to this idea by directing bodies of strangers or convicts to be delivered to their "relatives or friends." Secs. 1437, 4926, Stats. 1898. From this point of view, we think, are justified certain conclusions as to which, among the survivors, bear this duty and enjoy the right, which seem to be supported by the general current of authority. First among these is that the right is not vested in executors and administrators, as seemed to be suggested in some English cases quoted somewhat inconsiderately in this country. The right, such as we have suggested it, is not affected by the fact that the funeral expenses may properly be a charge upon the decedent's estate, and thus ultimately be payable by the executor or administrator. Samuel v. Estate of Thomas,
In absence of any surviving spouse, situations become subject to such complications that it probably is not wise, if proper, to attempt to declare general rules beyond the case actually presented. Suffice it to say that the duty and right of the parent toward the body of a minor child dying a member of his household, or of the adult child toward a widowed parent, either a member of the child's family circle, or not a member of any other, seems too clear to warrant discussion. That, however, carries the subject far enough to dispose of the question whether the plaintiff is the person entitled to *472 bring this action, for the complaint alleges that he is the son of the deceased, obviously adult, and that he is the only person having any interest. On demurrer, this is sufficient to exclude existence of any surviving husband or any other child having equal or greater right or duty to supply proper burial to his mother's remains. If others exist whose rights would suffer invasion by such acts as are charged against defendant, so that they would have action therefor, that fact can be set up by defendant, and the necessity or propriety of their joinder be then considered.
The foregoing discussion, protracted perhaps unduly in deference to the novelty of the question in Wisconsin, and to the earnestness of counsels' argument, leads to the final conclusion that the complaint states a good cause of action in favor of the plaintiff, and that the trial court erred in sustaining the demurrer.
By the Court. — Order reversed, and cause remanded with directions to overrule the demurrer.
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