*1 ' THE IN COURT. SUPREME Kyles Raileoad. must neces- is not car dark when the burning at all in the light circumstances. upon sarily depend a pas- car in which If conductor Alston with knowledge Avenue left switch senger pass his current the steadiness of weather conditions under his car on, relied could not be consequence that under should find and if the jury frequently nnlighted, and due care conditions reasonable prudence such existing him remain at of his passengers required safety duty and such omission of so, it was his do switch, duty to if it a collision. would constitute actionable caused negligence New Trial. RAILWAY COMPANY.
HATTIE G. KYLES v. SOUTHERN 1908). (Filed April, Questions Judgment Nonsuit—Evidence,' How 1. Considered — — Jury. question upon as of nonsuit the evidence In consideration light accept in the favorable the courts will the evidence most any evidence, plaintiff; minds if or if different there is conclusions, duty Judge different it is the the trial can draw jury. the case to submit 2. Dead Bodies—Unlawful Mutilation — Widow—Right of Action. living a widow is her at the time of When with husband right superior has, nothing appearing, a of action death she else that of the next of kin for unlawful mutilation remains of deceased husband. Property Wrongful Quasi 3. Mutilation —Actionable. Dead Bodies — — recognized prop- bodies are not common law as While dead quasi wrongful erty, they property, and thereof is aré mutilation actionable. Damages, When
4. Recoverable —Wan- Same —Evidence—Punitive Malice. tonness and punitive In a suit widow are recoverable for duty knowingly permitting breach the mutilated defendant’s of deceased to remain its and dismembered condition, unprotected repeatedly in an to be run over track willful, trains, when it was from a wanton or malicious motive. TEEM, SPEING C.] v. Railkoad. Same —Evidence Insufficient. *2 willful, 'JTkereis evidence malicious no of wanton or motive employees appears on the of defendant its when deceased, by engines, the was killed defendant’s who one of permitted repeatedly to remain defendant’s track and was mutilated, night run over and it was done at or under and when employees such conditions as cause the not be aware to to thereof. Same. impatience Evidence that the section master manifested some guarding incompetent. prospect at the the remains held of Justice, J., tried before and a November jury, Actios Term, 1907, of Ibekell.
Plaintiff The facts are stated the opinion. appealed. P. & Turner and II. Grier for plaintiff. Armfield L. C. Caldwell for defendant. the O. J. The careless complaint alleges (1)
ClaRK, husband mutilation of dead of the negligent plaintiff’s train and forth over it back by continuously running all this hours after the killing, nearly twenty-four the track rails; time on between exposed (2) lying dead of wanton and reckless mutilation willful, conduct; negli husband above-recited plaintiff’s by (3) his remains in that a burial, to por failure gent up gather home, his remains not sent but lay alongside tion of relatives, till who car track for four days, gathered by these ried them buried home, reopened grave defendant had sent company. with those which death or killing, There is no allegation wrongful the statute and created in which case the cause .action 59; sec. Eevisal, representative. is vested in personal Railroad, C., 128 N. Killian v. if evi- nonsuit,
As the court below granted willful and matters whether of either alleged, dence the nonsuit must be misconduct, wanton or merely negligent and it is action, not causes of aside, separate set are IN TI-IE SUPREME COURT. Kyi.bs v. Railroad. to ascer- further than to discuss testimony necessary action submit tain if there is evidence of the cause of or in have Matters defense exculpation casé the jury. trial no heard the new here, but should below. place of the dead Was there evidence mutilation so, If deceased that incident to killing? except to the In con Honor case jury. erred not submitting the courts will accept the sidering question most favorable and if there is any light plaintiff, conclusions, minds draw different evidence or if different can it is the submit the case to the jury. of the trial Judge duty Railroad, Railroad, White C., House v. 131 N. v. 103; Wasson, 71 N. Moore v. C., C., 454; 484; Wittkowsky *3 Railroad, was found the de 128 N. 455. The on C., body near head, blood, hair, fendant’s eyeballs, etc., pool track — from arms and 75 yards four-mile post Salisbury; legs farther in direction of and the 250 275 Salisbury, body same and direction; hair, from head in the blood parts yards the rails, and outside of for some track, inside body along that was and knocked body and evidence distance; dragged side, hair from one of the track to the on bars other; angle or nuts the rails The stripped where are joined. all found 'of its and arms and overcoat head, legs clothing; a torn it was found mile cut; near the and one place, piece a west of 27 miles Statesville, east of the and body, pocket a drawers therefrom, in different direction. The were picked a west from Be on track one-fourth of body. mile up 6 on on the of the 19th and o’clock tween o’clock evening 20th the and its lay the afternoon fragments ran and down track the rails and' were strewn between up train. this time fifteen or over every by passing During over defendant’s track-six or more more trains passed more and six or tire day night during during —after and one train was body, discovered the defendant’s agents the track. The watch seen as lay upon to strike the body TEEM, O.] Kyles v. Railboad.
that tlie deceased wore was and the hands mashed, pointed to 9 four-mile minutes o’clock. Train No. passed 7% the scene towards post killing going Salisbury about this a time, with full track was straight headlight. mile one each and no was discovered way object as the swore. Train No. from
track, 35, engineer Salisbury, No. 12 near that a passed the four-mile city, passed post few minutes thereafter. struck the This last train evidently deceased first. That the is shown further mutilated or more fact the headless was 250 by east yards four-mile the drawers found miles west; post; l1/^ miles the overcoat mile of overcoat 27 east; pocket arms 75 east and north still west; track; on side of yards legs further east and on south side of head near the track; four-mile all track hair down the post, angle all bars; trunk rolled dirt, cinders mangled and mutilated A trains dozen more beyond recognition. stated, over the and one was seen
passed body, already strike it. This evidence all these can things hardly with reconciled struck the de one tram theory only ceased. indicates rather that was struck west,
after death different and that trains east going it and and thither, thereof were thrown hither back- parts wards and forwards, trains passing going opposite *4 directions. This was an the infringement upon legal right in of to have the in the the burial condition body it was when life extinct. To hold otherwise became a would be violation of and duties the “rights recognized by laws and as the natural rela- out of usages society growing tions human to other and the each divine and human beings J., in laws which bind Fox v. society together.” Thayer, Gordon, 16 Phila. (Pa.),
All the defendant who the employees participated retained in the defendant’s mutilation em- IN THE SUPREME COURT".
398
Ivyles v. Railroad. it cannot heard to ratification, This Avas a ployment. Ed.), that the 12 A. and E. act Avas unauthorized. (2d say 36 et seq. it not on however, seems, Avas nonsuit, granted, of fact in to the allegations of lad! of evidence support
ground did not constitute but on the complaint, ground they cause of As is first that such a cause of action. time is Court, has in the of this action history presented Avhich authorities elsewhere to review somewhat the proper of a dead en- sustain that mutilation the proposition if the next of none, titles the husband wiffe surviving (and mental anguish to recover kin) compensatory damages if such addition, damages, caused thereby, and, punitory willful and wanton or recklessness conduct Avas of others. rights of a dead purpose to right possession tes absence of any burial preservation belongs, husband or Avife
tamentary disposition, surviving next and when AvidowAvas Avithher husband kin, living of the hus the time his death her to the right possession kin. band’s for such is next of purpose paramount Chase, Larson 307. A widow has a Minn., v. 47 right of her mutilation of remains action for the unlawful Chase, State, Am. Larson deceased husband. v. supra; N. Y. 370; Supp., Foley Phelps, in the a not strict sense While dead property corpse common law, yet right bury preserve will which the courts recognize legal right rise an action for violation of it will protect, give 834, 8 A. and E. and cases cited; (2d Ed.), damages. law While the common does 280, cases cited. Cyc., of America and dead courts bodies recognize property, are and civilized countries have held other Christian mutilation thereof and that is actionable. quasi property Chase, Larson v. supra. *5 TERM, 1908. 399 0.] Railboap. v.
Tbis is not an action for tire of tbe de negligent killing an ceased, but action tbe widow and E. Ed.), A. by (2d 838, and cases for wanton willful, tbe unlawful, cited] mutilation of bis dead Sbe was entitled to body. bis remains in tbe extinct; condition found life when became and for mutilation any incident to tbe tbe defendant killing would not be it is liable, but furtber liable law mutilation after thereof if done death, reck willfully, .either Chase, lessly, wantonly, Larson v. unlawfully negligently. Wilson, v. Railroad
supra; Foley v. 123 Phelps, supra; Ga., Lindh 62; v. Railroad L. R. A. 7 (Minn.), S.), (N.
Where tbe of one entitled rights legally custody dead are violated mutilation of by otherwise, tbe tbe an action party injured may recover for damages tbe mental caused tbe suffering Perley Mortuary injury.
Law, 20; v. Larson Ind., v. Wright, 536; 125 Reniham Chase, Bonner, Hole supra; Texas, Chase,
In Larson v. it Minn., 311, said, is discussing tbis cause of action: “Where tbe act constitutes an wrongful of a infringement mental be re- legal right, suffering may covered for, if is tbe direct, and natural proximate result of tbe It act. wrongful early settled that substantial be recovered in a torts damages might class of where tbe only suffered is an injury mental, as, assault without example, physical So, contact. too, for false imprisonment, actions where tbe was not touched tbe plaintiff sub- defendant, stantial have recovered, damages though physically did plaintiff not suffer actual In detriment. an action for seduction substantial are allowed for mental suf- damages ferings, there be no of actual although dam- proof pecuniary other than nominal ages which the law presumes. same true in actions for breach of promise marriage.
Wherever the act of constitutes complained a violation of legal right always contempla- tion of law he causes injury, entitled to recover all dam- THE SUENEME COUNT. IN [14T *6 v. Raileoad. of which are and. natural the the
ages proximate consequence act. That mental and to the feel wrongful suffering injury would the and result of ordinary knowledge ings proximate had is a deceased husband mutilated the of This case Meagher too to admit of cites v. argument.” plain Driscoll, 99 for- where a father recovered Mass., 281, damages and the mental removing anguish digging Larson, is followed child. Chase v. supra, by quoted them N. Y. cases, v. 37 Phelps, Supp., many among Foley the was an “Where inflicted injury upon 471. the plaintiffs with unlawful and unwarranted the de interference right or cent was wanton malicious or the- burial, such conduct .and of the disregard rights result of gross negligence reckless awarded.” v. others, Wright bemay exemplary 112 whole re- fully This Hollywood, Ga., subject with the viewed, full citation authorities sustaining right for indifference of action reckless compensatory damages the late ease others, by Judge Dodge (1905) rights Patek, Lombard v. 123 462-467. In v. Wis., Koerber Lennox, “If and natu 155 Mass., 70, said: ordinary ral tort an feel is.to cause consequence injury done or with and if acts are willfully plaintiff, ings carelessness of the rights plaintiff, damages may gross 1 To be-recovered mental same Sedg. sufferings.” purport 95 Dam. 1 secs. ei 43-47; Dam., secs. Suth. (8th Ed.), seq. The defendant owed the also duty gather burial, and its same for fragments prepare so was failure to do an infringement legal actionable. Commonwealth v. Susque therefore rights, Co., 195 case, Riley, Coal 5 Scott Kulp, hanna (Pa. 1889); Int., Parts case). left Leg. (Pa. the track and the father on the Monday up by gathered following.
It is no such answer to- indifference say negligence from track that the defendant did remove TERM, 0.] Kyles v. Raileoad.
because the master was Hu- for the coroner. waiting section and its scattered manity decency required members should laid off track in reverently picked up, and sheltered from sun and spot covering nearby flies and dust and irreverent from the eyes, protected dogs some better to the than, agency testimony, according volunteer aid of small attracted thither boys but by curiosity, who showed more than those who respect humanity repre- sented this defendant. On this of affairs re- condition being *7 to the he should have seen that such ported proper official, were taken as steps promptly required by decency shown in all civilized to the dead. It respect communities could nowise aid the of the coroner to expose investigation on headless the track trains, beneath be- body passing with cinders and dust coming begrimed beyond recognition, nor was there excuse for the other portions leaving uncollected and scattered and down the and for track, days even after was sent home. Besides, was for hours eleven negligence waiting keeping for a when four coroner, was miles distant. Salisbury only The of the defendant president company unfortunately killed on its track since. not Was thus kept long the track to run over trains all day be by passing long, waiting for the coroner?
The above if sustained on will entitle the facts, trial, recover mental for in- for such plaintiff anguish damages to the of her husband, dignities punitive damages if find that such was willful and wan- also, conduct jury ton or in indifference to the of reckless rights feelings their own should, however, and to duties. jury plaintiff cautioned in actions for delay be (as delivery telegrams sickness and dissociate concerning death) carefully at her hus- from the the death of plaintiff’s grief learning this action does not concern of the case. band, that phase entitled to recover Nor is the plaintiff anything grief 147 —26 THE IN SUPREME COURT.
Kyles v. Railroad. in tbe knew, tbe condition coffin. Sbe seeing tbe body her friends should bave tbe her, told condition’ of tbe re- mains, and herself is sbe to look in sbe to blame that chose them. have a natural It but tbe de- may impulse, fendant for tbe mental responsible resulting anguish therefrom. tbe dead is an instinct none violate.
Respect may of death edicts of to tbe democracy superior kings. became forever her kind when de- Rizpab famous sbe among fied tbe of Israel, who would treat tbe bodies her King dead with has immortalized contempt. Sophocles Antigone, who vindicated like tbe sentiment of human nature aas higher law than that of her sovereign.
Tbe deceased bave moved walks may life, bumbler but to tbe husband and father chil- dren. It was her old as as- time, broad as right, humanity and as tbe heart that bis mortal remains deep* man, should treated with due So far as tbe respect. defendant, through agents, recklessly, failed negligently willfully to do’ it has this, violated her law. What under tbe rights will her for tbe mental tbe de- compensate anguish *8 fendant’s conduct has caused Avhat her, would .and be proper for tbe punitory recklessness, or indiffer- negligence ence of its is a matter for a agents (if proven), jury to to tbe countrymen determine, subject supervision just sum not excessive assessed. Judge, .an This action is tbe widow of an brought by employee Southern It is Railway Company. cor- brought against and not of its poration against employees. Employees railroads render arduouá and faithful service and are usually to of which cannot subject be avoided many dangers, some that can and should be. That render faithful ser- they vice when is no excuse for to their bodies living indignities when dead. Tbe on these trains engineers could not passing risk their without orders. trains Tbe stopping responsi- this on tbe with bility attendant keeping track, ' TERM, O.] v. Raxleoad. details, rests not with one them, but on some revolting “higher up.”
PIoKE, J., concurring. J., I am that his While concurring:. opinion
BeowN, Honor erred in the motion to nonsuit, the sustaining grounds I upon base conclusion are different from entirely those stated of the Court. opinion claims of the defendant: damage For that the
(1) servants of defendant, its engineers, mutilated the willfully, brutally dead wantonly her husband. For the failure his remains
(2) to gather up prepare same burial.
A most careful examination record convinces me that no the first support either allegation, master against the section other em- engineers, of the defendant. ployee
I should loth man with the wanton charge any willful, and brutal mutilation of the much those who dead, less men their take lives their hands for our and who benefit daily to a whose belong profession unpretending, self-sacrificing heroism has been immortalized in story. song Many them, to save the lives of those committed endeavoring their have care, held an hand the lever when unfaltering knew they onward they were to certain 'death. rushing Many humble heroes of have, the throttle like Jim Bludsoe, ag’in’
“Held lier nozzle hank galoot’s ashore,” ’Til the last and then died at the of duty others, whom did post know, even might live. evidence, sustain such an accusation and against *9 such should men, as to clear, only fact of mutilation, but that defendant did it engineers wan- willfully, and therefore tonly knowingly. IN THE SUPREME COURT. v. Railroad.
Tbe evidence taken on tbe trial was all introduced by and, as I plaintiff, it, read to show willful nothing and wanton mutilation upon any engineer defendant or other tbe defendant. It is ad- employee mitted that tbe deceased was not killed through any negligence of defendant’s servants, and no claim is made for such negli- gent killing.
Tbe that evidence tends to husband, Robert prove plaintiff’s an left defendant, 19 Janu- employee Statesville on Kyles, train ary, 1905, on defendant’s Cabarrus Landis, County, and that be intended to off that route stop somewhere m night to visit his aunt. It seems to conceded that the deceased never reached and it that was killed Salisbury, appears he somewhere near four-mile from At that post Salisbury. point blood, brains and hair first discovered the rail. Farther down the trunk of the was rolled found, over between rails and almost lying unrecognizable that of a human The watch of the was being. deceased found near the four-mile mashed in and the hands post, stopped minutes Keever, 12, train No. engineer, 7% that testifying states his train plaintiff, passed spot at 8:53 P. that his HI.; electric headlight shining, that he neither saw nor struck on the and if he anyone track, a man with he would have pilot engine had.struck it. known There is no that the deceased struck evidence and the condition engine, repels All the tends theory. evidence that the was not prove thrown from the track but pilot, fragments hair body limbs, blood, carried east- clothing — —were ward for mile or more from the on the track point where of his death was first seen. It was on an eastbound train that the deceased left Statesville on the evening 19th, and a most it is reasonable and in fact about the only inference to draw from the facts legitimate and circumstances evidence that deceased fell from the train he was between the traveling, cars, and, entangled becoming *10 TEEM, SPKING 0.]
Kyles 'v. Raileoad. in tbe machinery cars, under the was up body ground .and crushed and dismembered and rods under running gear and his cars, flesh blood scattered for distance track. It would a or two do second along require only a at the usual train. speed passenger defendant’s Assuming during night engines passed over the remains as scattered track between they lay it was done rails, of the ignorantly engineers. It said cannot be to have been done willfully wantonly unless a done. There not scintilla of evidence knowingly of defendant knew that the scattered debris any engineer of a human on the track until morn- body anywhere were next The rails found ing. only part between was found on the rails was blood and (nothing except hair) the trunk a with an arm body, it, doubled under hand and a foot was rolled over, legs. lying in between in an mass. rails, The wit- unrecognizable nesses testified that “it awas hard matter tell what mighty itself.” difficult legs equally and were 100 west from the trunk. All recognize yards evidence shows if the ran that, over these remains engineers not did it no only but that during night, ignorantly, they human could have discovered from the window eye cab what were. rushing engine
As to the actual mutilation by passing engines during after remains were day, discovered to those of human there is a scintilla evidence, being, hardly absolutely to indicate wanton and willful nothing injury.
After the was discovered next the witnesses day testify that the trains were over stopped passed passing slowly without one One it, instance. except touching states that in over witness the dead trunk between the passing rails an rod on one touched the but engine engine shoulder, not it. did cut or mutilate these remains were allowed Why to remain on the track all is best explained by plaintiff’s day witness, J. who says: M. Nice, IN THE SUPREME COURT. Railkoad.
“Q. it not bis track did take off tbe you Why before that?
“A. We not had any did think we to move it. right People said to move until the there. Some said coroner got move it until the comes. and others said don’t coroner
“Q. And after the coroner came the that had remains time found to that were and taken to Salisbury? picked up' “A. sir.” Yes, who insisted on not remains until persons touching
the coroner came were citizens of the .neighborhood, were what we all know to abe governed by preva- very error as to the of the law. I lent requirements agree fully with the learned counsel for that defendant owed plaintiff to husband and duty gather found on its track and to fragments decently protect A an them for burial. failure to do prepare so and therefore infringement plaintiff’s legal rights actionable. if the Therefore, section master per- negligently mitted to the remains be on the track and failed to exposed for them, care the defendant would be liable to properly plain- tiff in for such actual suf- mental, physical, including thereof, sustained she reason of fering knowledge the fact that the section master acted in notwithstanding good a faith under mistaken sense duty.
If there was evidence that section master refused to remove, the remains from a willful, wanton or malicious mo- I should tive, that, in addition to actual or say compensatory would allowable in the discre- damages, punitive damages tion of the But is no such evidence in record. jury. It is from the evident of Rice and other perfectly testimony witnesses that the section master failed to' remove out of deference the coroner prevalent opinion that first for. .must be sent as testified to A. Accordingly, by L. master left section one of his men in Rice, charge and went once for the coroner and re- Salisbury time turned some before the coroner arrived. The declara- 40Y TERM, 0.] v. Railroad. Wall at tbe master impatience
tions of tbe section manifesting while remains tbe tbe nigbt guarding prospect spending After tbe excluded. tbe coroner properly waiting bis direc- under up, coroner arrived tbe were gathered next on tbe for and carried Salisbury cared tion, properly train. calculated are well occurrence
Tbe details of dreadful im- and to anyone judicial serenity to shock disturb But I considered. all cases should be with which partiality examina- careful sake, am for humanity’s say, glad me that, convince record tion mature consideration an honest in bis through while tbe section master,erred duty intentional willful, wanton, is no mistake, there * of anyone. or reckless brutality upon aside and of nonsuit should set I think the judgment laid down in this opinion, trial lines new ordered along it is so ordered. *12 concur JJ., opinion and OoNNOR, Walker J. BrowN, RAILWAY COMPANY. COMPANY SOUTHERN
WALL-HUSKE 1908). (Filed April, Legislative Penalty Statutes —Carriers—Failure Powers — Transport. power Legislature impose penalties It is within the delay by transporting for unreasonable freight. carriers intrastate Penalty Transport Statutes —Carriers—Failure —Intermediate Distributing Point. Points —Car Lots — shipment necessarily intrastate is transferred When carload system breaking bulk from road of carrier’s without one distributing point general at a the carx'ier’s another thereof system destination, the carrier is allowed to reach thereat order transportation point statutory time for such as an inter- 2632). point. (Revisal, sec. mediate