Osteen v. Southern Railway Co.

86 S.E. 30 | S.C. | 1915

August 27, 1915. The opinion of the Court was delivered by This was an action tried before Judge Mauldin, and a jury, at the June term of Court, 1914, for Greenville county, and resulted in a verdict in favor of the plaintiff for $600. After entry of judgment, defendant appealed. The action was for damages for alleged negligent and wilful conduct of the defendant in matters complained of. The plaintiff in substance alleged: That on February 9, 1914, he bought six tickets from Greenville to Gaffney for the transportation of a funeral party consisting of himself and four others and the dead body of his sister-in-law, Mrs. Peace; that the ticket for the corpse was handed to the station baggage agent by the undertaker, who gave him a check for the coffin; that on the train he presented to the collector the five tickets for the living members of the party; that he did not think to present the baggage check "representing the right of transportation for the corps;" that although he protested that he had bought a ticket for the corpse, the collector demanded and collected fare for it, and collected seventy cents in excess of the legal rate; that the conduct complained of was a violation of "the rights and feelings of the plaintiff as a passenger," to his damage $2,000.

The answer of the defendant was a denial of allegations of the complaint.

The first five exceptions allege error on the part of the trial Judge in not granting defendant's motion for a nonsuit.

The first two, on the ground that there was no evidence for actual or punitive damages for which defendant was liable, and that there was no evidence that the plaintiff's right as a passenger had been invaded by the defendant, and that as far as the transportation of the corpse was concerned he had no legal rights that would entitle him to recover.

The evidence shows that the plaintiff was a brother-in-law of the deceased, and at the request of the husband of the deceased he took charge of the necessary arrangements to transport the body from Greenville, where deceased died, to Gaffney, where the burial was to take place. That the husband was dazed and prostrated almost with grief at the death of his wife, and from this alone the inference can be drawn that the plaintiff was the representative of the husband and in charge of the party who accompanied the body for burial.

He purchased the ticket for the corpse, and the undertaker got the check form the station baggage agent, and the corpse was received by the defendant for transportation duly checked, and the only thing the plaintiff was expected to do was to board the train on the ticket that he had purchased which entitled him to ride to Gaffney, S.C. and upon arrival there, present the check and receive the corpse. He was entitled to ride in comfort, free and unmolested. The ticket collector had nothing to do with the body that was in the baggage car properly received, and checked by the proper party entitled to do so. The ticket collector not only demanded fare for the corpse, that he had no right to do, but showed that he was careless and incompetent not only in this, but that he did not know what the fare was from Greenville to Gaffney, and demanded seventy cents, in excess of the legal rate, which he virtually extorted from plaintiff when he was on a sad mission, and made him uncomfortable and no doubt vexed and annoyed him. Plaintiff was not a volunteer in the sense complained of. He was a brother-in-law of the deceased and acting in behalf of the family and at their request in providing for the transportation of the deceased to the place of burial.

While it has been decided in Griffin v. Ry. Co., 23 S.C. 25, that under the common law there can be no property in a corpse, and that decision was correct on the facts presented in that case, it is to be remembered that the common law of England had nothing to do with burial of deceased persons, etc., but that the Ecclesiastical Court had jurisdiction over such matters and not the Courts of common law. This Court will not commit itself to such a barbarous and savage doctrine as to hold that when a person dies no one has such a property interest in the body as to see the body is decently interred, and resting place uninterfered with, and a relative or friend has a right to see that the body is protected, and these feelings in relation thereto protected.

The case at bar shows that Osteen had a peculiar interest as custodian by appointment of the husband, and as a relative, to carry the body to its final resting place, and that the demands of the ticket collector to extort illegal and unreasonable additional fare, even seventy cents in excess of regular fare, was enough to show that an incompetent agent of the defendant was allowed to do this, and was sufficient to sustain the verdict of the jury to actual and punitive damages. It was held in Kelly v. Tiner,91 S.C. 41, 74 S.E. 30, that a relative or friend had the right to prevent the desecration of a graveyard where their relatives or friends were buried, and certainly in the case at bar the plaintiff under the facts of the case had the right to prevent any indignity to the corpse which was being transported for burial under threat of compulsion by the ticket collector, and by means of such compulsion money was wrongfully and unlawfully extorted from plaintiff.

These exceptions are overruled.

The sixth, seventh, eighth, ninth and tenth exceptions allege error on the part of his Honor in his charge to the jury, and complain that, even thought the propositions of law charged were in the abstract correct, they were inapplicable to the case. It is the duty of the Court to declare the law to the jury, and in doing so it is better to fully charge than not to charge enough, provided, what is charged is correct proposition of law, and we fail to see how any statement made by his Honor as complained of worked harm or prejudice to the defendant. The propositions of law charged were sound, and even if not wholly applicable to the issues presented by the pleadings, is not reversible error, unless the Court's attention was directed to it at the time, and unless prejudice results to the complaining party.Nickles v. Ry. Co., 74 S.C. 102, 54 S.E. 255; Plunkett v.Insurance Co., 80 S.C. 410, 61 S.E. 893.

The contract was to transport the remains, and the plaintiff and his party as members of the family, either as mourners or a part of the funeral party as friends of the deceased and her surviving family, and as such the plaintiff, being in charge of the corpse, having a check therefor, had a cause of action against the carrier, who had undertaken to transport the corpse, and threatened to breach the contract by its agent, clothed with a "little brief authority," making an unlawful and unjust demand for a fare that had already been paid, and even more than what would have been the fare if it had not been previously paid. The plaintiff had paid for the transportation of the corpse and had to pay a second time more than the legal fare, and this was exacted virtually under threats and compulsion such as to make it a "holdup." These exceptions are overruled.

Exceptions eleven, twelve, thirteen, fourteen and fifteen are overruled by what had already been said. The ticket collector had nothing to do with the transportation of the body according to the proof, and he unlawfully and wrongfully annoyed a passenger, who was in charge of the same, a brother-in-law and a friend of the deceased wife and surviving husband.

It is the right and duty of the living to bury their dead, and they have such interest in the remains as to enable them to carry the remains to the graveyard, and give the remains Christian and decent interment without interference from any one. This can be done either by the relatives or friends of the deceased. It is their moral and legal duty, and to hold otherwise would be to relapse in the ignorant and savage custom of the dark ages, and be repugnant to every Christian and civilized prompting of one's heart and instincts, and it might as well be understood that no argument or sophistry can convince that in a Christian country the dead body of a person is entitled to no more consideration and protection than any article of merchandise. It shocks and outrages all of our finer instincts and sensibilities, conscience and common sense.

All the exceptions are overruled.

Judgment affirmed.