193 S.E. 102 | Ga. Ct. App. | 1937
1. While it is well settled that for mere negligence one can not recover damages for mental pain and anguish unless there has been damage to person or purse, it is equally well established that for a wanton and wilful tort or for a reckless disregard of the rights of others, equivalent to an intentional tort by the defendant, the injured party may recover for the mental pain and anguish suffered therefrom.
(a) In such a case exemplary damages may be awarded, and it is not necessary that they be pleaded co nomine.
(b) While at common law there can be no property in a dead body, the right to its possession and disposition is a quasi property right which the courts will recognize and enforce, and, in the absence of testamentary disposition, the right of preservation and burial, to receive the body in the same condition in which it was when death supervened, belongs to the husband or wife, or, if none, to the next of kin.
(c) The unauthorized mutilation of the dead body of a husband gives a right of action to the widow. *409
(d) Ordinarily the only duty which a railway company owes to a trespasser upon or about its property is not to injure him wilfully or wantonly after his presence has been discovered; and this principle of law applies to the duty of a railway company towards a dead body which happens to be upon its tracks.
(e) Where it was alleged that the body of the plaintiff's deceased husband remained after death upon the line of railway of the defendant after the homicide had occurred from an unknown cause, that the body was visible for a distance of a mile in either direction, and that the defendant wilfully and wantonly ran over, mutilated, and mangled the body, thereby causing her great mental pain and suffering, a cause of action was set out, and the court did not err in overruling a general demurrer to the petition.
2. The evidence, while showing that as a result of the acts of the defendant in running its train over and mutilating the body of the plaintiff's deceased husband, she suffered mental pain and anguish, was not sufficient to authorize the jury to find that the defendant acted wilfully or wantonly or with a reckless disregard of her rights, equivalent to an intention to commit a tort. The court erred in overruling the general grounds of the motion for new trial. The special grounds are discussed in the opinion.
1. The special grounds of demurrer relate only to allegations of the first count, which was subsequently stricken by amendment, and need not be considered. To the petition as amended, where under the second count the plaintiff sought recovery on the ground that the defendant wantonly and wrongfully ran over and mutilated after death the body of her deceased husband and caused her great mental pain and anguish, the defendant renewed its general demurrer on the ground that no cause of action was set forth. We think the court properly overruled the demurrer. While it is well settled that for mere negligence one can not recover for pain and suffering unless there has been damage to person or purse, it is equally well established that for a wanton and intentional tort recovery may be had for such elements of damage.Dunn v. Western Union Tel. Co.,
As was well said in Kyles v. Southern Ry. Co.,
Under the principles of law as announced in the decisions discussed above, it must be held that where a petition alleges that a railroad company wantonly and wrongfully ran its train over, mangled, and mutilated the dead body of the husband of the plaintiff, such mangling and mutilation not being incident to the homicide of the deceased but occurring thereafter, a cause of action is set out in favor of the plaintiff where she is entitled in law to receive the body after death. It is not shown by the petition whether the deceased, when in life, was a wilful trespasser upon the line of track of the railroad. It was alleged, however, that after death the body of the deceased "remained upon the line of track of said defendant at said point." Not being within fifty feet of a crossing, but at a point one mile from a station, and not where the railroad had authorized the use of its property expressly or impliedly, no duty rested on the railroad servants to anticipate the presence of the body. Ordinarily the only duty *419
which a railway company owes to a trespasser upon or about its property is not to injure him wantonly or wilfully after his presence has been discovered. Hammontree v. Southern RailwayCo.,
Even if the presence of a dead body upon the line of railway be analogous to that of a trespasser, but helpless to extricate himself from his difficulty, a railroad is under a duty not to wantonly and wilfully run over and mangle it after its presence becomes known. The petition alleges that the body could be clearly and easily seen for a distance of a mile or more in either direction; that the defendant wilfully and wantonly ran over and mangled the body on the night following the death of the plaintiff's husband; that members of the crew left the train and viewed the body, but failed to make any report; that on the following morning another train repeated the act of mutilation, the servants of the defendant observed the body, and thereafter on the same morning other servants of the defendant passed over the body in a hand-car, viewed the mangled remains, and made no report; that the body was allowed thus to remain until the vultures began to feed upon it, and further mutilate and disfigure the same, until the authorities of Randolph County caused interment to be made. If the facts alleged do not show an intentional tort, they set out such a reckless disregard of the rights of the plaintiff as to be the equivalent of an intention to run over and mangle the body. As a result of this it is alleged that the plaintiff suffered great mental pain and anguish, which required her to take to her bed, and that her physical condition and health were so impaired thereby that she will never recover. It will be noted that she alleged not only mental pain and anguish but permanent damage to her physical health. "In Goddard v. Watters,
2. On the trial the evidence did not support the allegations of the petition. We do not think that a scintilla of evidence was introduced to show the essential elements of wantonness, wilfulness, or reckless disregard of the rights of others on the part of the defendant. It is true that some witnesses living in the vicinity testified to the presence of mangled portions of the body strewn up and down the track for a distance of an eighth of a mile; but this evidence merely shows how complete was the destruction, and how difficult of identification as a human body was the corpse. It was conclusively shown that practically all of the body was sundered into small bits. The allegations of the petition that some members of the crew viewed the body and saw blood on the engine when the first train passed are entirely lacking in proof. While the engineer did state that two of the crew left the train and examined "it," his whole testimony, properly construed, shows that he had reference, not to the body or any part thereof, but to the rigging under the cars which it was feared had become loose. The testimony of these two men also showed that it was the under parts of the train that they were investigating, and that they were not aware that the train had run over a human being. It is no unusual occurrence for a train to run over a live animal, but no member of any crew saw, or had reason to suspect the presence of, a dead body on the line of railway. The track supervisor, while operating or riding in a hand-car or motor railway-car on an inspection of the tracks, as was his custom, saw what he regarded as a piece of hog flesh about the size of a fist, *422
but denied knowledge of the presence of any part of a human being. Nor were any of those indefinite persons who passed along in vehicles, as alleged by the plaintiff, shown to have knowledge of or reason to suspect the presence of a dead body. We can appreciate the deep and painful emotions of the plaintiff, however faintly she testified on the subject of her suffering. Her only statement was that she had not seen the clothing of the deceased, because "I just didn't feel like I could bear to look at them." We apprehend that a like solicitude on the part of the jury led them unconsciously into the error of treating the case as if wilfulness, wantonness, or a recklessness on the part of the defendant had been shown. To place upon the profession of railway employees, whose deeds of heroism and devotion to duty have been told in song and story, the stigma of such abandon, the evidence should be definite and convincing. The case is similar on its facts to that of Kyle v. Southern Railway Co.,
The first special ground of the motion complains that the court, in a portion of its charge, erred in stating to the jury that the plaintiff alleged that the defendant negligently, wantonly, and maliciously mutilated the body of the plaintiff's deceased husband While the plaintiff did not specifically allege that the act of the defendant was malicious, the defendant can not be said to have been harmed by the inclusion of the word "malicious" in the charge, inasmuch as the alleged wantonness would include malice in its broad sense, as shown in the first division of the opinion. In the same portion of the charge the court stated that the plaintiff was suing for damages done to her for mental pain and *423 anguish; and it is urged that there is no such allegation in the petition and that no such issue was in the case. A careful reading of the allegations of the petition and the evidence will demonstrate that the contentions are without merit and require no further discussion.
The second special ground complains of the charge, "that, as a principle of law in some torts, the entire injury is to the peace and happiness or feelings of the plaintiff; in such cases the measure of damages can not be prescribed except by the enlightened consciences of impartial jurors. The worldly circumstances of the parties, the amount of bad faith in the transaction, and all the attendant facts should be weighed," as harmful, injurious, erroneous, and not authorized by any issue in the pleadings or contentions of the parties. This charge was not error for any reason assigned.
Ground 3 complains that the court erred in charging the jury: "In all cases of tort, such as the present, if you find that the trespass has been wanton and malicious or is the result of gross negligence or a reckless disregard of the rights of the wife entitled to sue, equivalent to an intentional violation of them, exemplary damages may be awarded to the plaintiff." It is insisted that the court erred in stating that the case was one of tort, and thereby expressed an opinion and submitted to the jury the question of deciding whether or not the trespass was wanton and malicious, without any such allegation or issue in the case. The case was so obviously an action of tort, that the court correctly denominated it as such. To do so was not equivalent to an expression of opinion that the defendant had committed a tort, but, properly construed and, as we think, the jury understood, only informed the jury that the plaintiff so contended. The rest of the charge should not have been given, being unauthorized by the evidence.
No merit is shown in the further ground that the court failed to charge the jury that the suit was for the wrongful death of the plaintiff's husband, as well as for mental pain and suffering on account of the mutilation of the body after death. By amendment the plaintiff entirely eliminated from her cause of action any contention that the defendant caused the death of her husband It is true that the petition, as originally drawn in two counts, did *424 state that "In conclusion to both counts of this her petition, plaintiff avers that she is entitled to judgment for damages for the wrongful and negligent homicide," etc.; but after the allegation in that respect had been stricken, notwithstanding the plaintiff failed to also specifically strike her prayer to that extent, if it could be said that such portion remained, it must be treated as mere surplusage. It is further urged that the court should have charged that it must have appeared that the servants of the defendant were acting in the scope of their employment at the time of the alleged mutilation of the body. The failure to do so was not error, no issue being made on the trial that the servants were not so acting, and this was apparently conceded by the defendant. As hereinbefore ruled, the plaintiff would not be entitled to recover without showing injury to person or purse or that the acts of the defendant were wilful and wanton. The evidence showing neither, the verdict was unauthorized; and it is unnecessary to deal with any other assignment of error or in the charge of the court. The court erred in overruling the motion for new trial, for the reasons hereinbefore mentioned.
Judgment reversed. Stephens, P.J., and Felton, J., concur.
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