O'DEA v. Mitchell
213 N.E.2d 870
Mass.
1966
Check Treatment
Kirk, J.

This is an action of tort in eight counts brought by four sons of Patrick J. O’Dea, deceased, for damages in the sum of $100,000 allegedly suffered because of the defendants’ unlawful burial of the decedent. Each of the counts names one of the plaintiffs and one of the defendants. The defendant Mitchell operates a funeral home. The relationship of the defendant Nicholas to the plaintiffs or to the decedent does not appear.

Each count of the declaration alleges that the plaintiff is *164 a son and next of kin to the decedent, that the father died on March 31,1964, that on or about that date the defendant “unlawfully and without right, in wilful disregard and careless ignorance of plaintiff’s rights . . . did take charge of the body, funeral and burial” of the decedent. The plaintiffs allege that the defendants’ actions caused them “great anguish of mind.”

The defendants each filed a demurrer to the declaration, averring in substance that the allegations of the declaration were insufficient to sustain a cause of action in tort. The judge sustained the demurrers and granted leave to the plaintiffs to move to amend the declaration by filing with the motion a substitute declaration within a specified number of days.

The plaintiffs elected not to amend within the time specified, but, rather, to appeal from the orders sustaining the demurrers. The result is that they stake their entire case upon the correctness of the ruling on the demurrers. Elfman v. Glaser, 313 Mass. 370, 373-374, and cases cited. See Spector v. Loreck, 342 Mass. 685, 687. The questions thus raised concern the adequacy of the declaration with respect to the plaintiffs’ standing to sue, to the alleged conduct of the defendants, and to the efficacy of the claim of damages solely from mental anguish.

The plaintiffs ’ standing rests on the statement that they are “next of kin” to the decedent, and therefore have the right to possession of the decedent’s body. That right vests, however, in the next of kin only when there is no surviving spouse or no contrary provision by the decedent concerning the disposition of his remains. Sheehan v. Commercial Travelers Mut. Acc. Assn. of America, 283 Mass. 543, 553. The absence of a surviving spouse and of contrary directions by the decedent must be alleged by the next of kin in order to establish their standing to sue. The mere statement that the plaintiffs are the decedent’s next of kin does not warrant the inference that they are vested with the right to possession of the body. The absence of impediments to the claiming of that right is a primary fact “necessary to make out a case.” Cluff v. Picardi, 331 Mass. 320, 322.

*165 The plaintiffs’ lack of standing is decisive of the case. We need not discuss the issue of damages which, in any event, would he resolved against the plaintiffs. Spade v. Lynn & Boston R.R. 168 Mass. 285, 290. See Sullivan v. H. P. Hood & Sons, Inc. 341 Mass. 216.

Orders sustaining demurrers affirmed.

Judgments for the defendants.