Lee v. Weston

• Decision Date: 26 March 1980
• Docket Number: No. 2-778-A-233,2-778-A-233
• Citation: 402 N.E.2d 23
• Parties: Ronald J. LEE and Luella J. Lee, Plaintiffs-Appellants, v. Lonnie G. WESTON, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 23

402 N.E.2d 23

Ronald J. LEE and Luella J. Lee, Plaintiffs-Appellants, v. Lonnie G. WESTON, Defendant-Appellee.

No. 2-778-A-233.

Court of Appeals of Indiana, Fourth District.

March 26, 1980.

John T. Manning, Wausau, Wis., for plaintiffs-appellants.

Fred G. Yelton, Jr., Anderson, for defendant-appellee.

MILLER, Presiding Judge.

Plaintiff-appellants Ronald I. Lee and Luella J. Lee (Lees) husband and wife, brought suit against Lonnie G. Weston (Weston), the Coroner of Madison County, in a two-paragraph complaint. The first paragraph alleged Weston had improperly ordered an autopsy of their 18-year old son, Randall, and then interfered with the autopsy by causing his body to be partially embalmed prior to the autopsy. The second paragraph alleged Weston libeled the Lees by finding in his verdict that the cause of Randall's death was "Aspirations of body content/Due to overdose", a cause they claim was not substantiated by medical evidence. The trial court granted summary judgment against the Lees and they appeal claiming genuine issues of fact remain on both their theories of recovery.

We affirm.

On November 27, 1974, Randall E. Lee was found dead on the floor of a friend's apartment in Alexandria, Indiana. He was lying on his back with his head on a pillow. Vomit covered the pillow, his nose and mouth. A virtually empty fifth of whiskey was found in the apartment. The record does not reflect how (or by whom) the body was discovered. Weston, a funeral home director who was also the Madison County Coroner, was called to the scene and arrived at approximately 11:30 a. m. Weston estimated the time of death at 9:00 a. m., November 27, 1974 based on the absence of rigor mortis and the temperature of the corpse. He ordered the body removed to the Kyle Funeral Home pending an autopsy. Weston requested Michael Owens, the manager of Kyle Funeral Home, to contact the Lee family as to the funeral arrangements. Owens contacted the Lees, who requested Owens to handle the arrangements at the Kyle Funeral Home. Upon returning to the funeral home, Owens directed Albert Kirby, a Kyle employee, to proceed with the preliminary embalming. Kirby fixed the facial features, drained the majority of the blood from the body and replaced it with a preservative (formaldehyde) and cleaned the body and hair. An autopsy was performed later that day by Dr. Jerry Stevenson at St. John's Hospital in Anderson, Indiana. Following the autopsy, Weston formally listed his verdict on the cause of death as "Aspiration of body content/Due to overdose," though Weston admitted in his deposition he had reached this conclusion prior to the autopsy. The Lees filed the suit against Weston on November 29, 1976.

First, we note our appellate responsibility in reviewing the grant of a summary judgment. This Court must determine whether the trial court correctly applied the law and whether there remains a genuine issue of material fact. Ind. Rules of Procedure, Trial Rule 56; Johnson v. Wabash County, (1979) Ind.App., 391 N.E.2d 1139; Tekulve v. Turner, (1979) Ind.App., 391 N.E.2d 673. A fact is material where its resolution is decisive of the action or of a relevant secondary issue. Johnson v. Wabash County, supra. The movant carries the burden of establishing the absence of a factual controversy and the evidentiary matters will be construed in a light most favorable to the nonmoving party. Tekulve v. Turner, supra. Thus, summary judgment "is a procedure for applying the law to the facts when no factual controversy exists." Central Realty, Inc. v. Hillman's Equipment, Inc., (1969) 253 Ind. 48, 246 N.E.2d 383, 389. With these principles in mind we now address the issues presented by this appeal.

THE AUTOPSY

Randall was only 18 years old at the time of his death. He was found in a friend's apartment surrounded and covered by his own vomit. Weston, as County Coroner, was called to investigate the death by the Alexandria Fire Department. Weston's jurisdiction properly arose in this instance because Randall's death occurred when he was "in apparent good health" and in a "suspicious, unusual or unnatural manner." Ind.Code 17-3-17-4(a). Once jurisdiction is assumed, a coroner, in the furtherance of his inquiry, has virtually an unlimited prerogative to order an autopsy under Ind.Code 17-3-17-4(c) Whenever any coroner under this act deems it necessary in the discharge of his duties to have an autopsy performed he shall employ a physician possessing the education and training that meet the standards established by the American Board of Pathology for certification or a physician holding an unlimited license to practice medicine in Indiana acting under the direction of such qualified physician to perform such autopsy, for which such physician shall be paid from the county treasury a fee of not less than fifty dollars ($50.00).

See Stath v. Williams, (1977) Ind.App., 367 N.E.2d 1120, 1124. After examining the numerous depositions and the pleadings, we find no evidence of bad faith, ¹ or maliciousness on Weston's part in ordering the autopsy under these circumstances. Ind.Code § 17-3-17-15 provides immunity to Weston for ordering the autopsy. This statute reads:

All persons who in good faith order or perform medical examinations and autopsies pursuant to the laws of this State shall be granted immunity from civil suits for damages in ordering or performing such medical examinations or autopsies.

Further, the Lees admitted in their brief and on oral argument that Weston was justified in ordering the autopsy initially.

However, the Lees assert Weston was either responsible for or aware of the preliminary embalming, a process which they contend destroyed or at least altered any results which might have been obtained from the autopsy, making the postmortem useless and unnecessary and thus ordered in bad faith. See Snyder, Justice and Sudden Death, 36 J. of Am.Jud. Soc'y., 142, 144-45 (1953); Helpern, The Postmortem Examination In Cases of Suspected Homicide, 36 J.Crim.L. & C. 485, 502-503 (1945-46); Note, Vitalization of the Indiana Coroner System Chaneling Medico Legal Duties to the Technically Trained, 31 Ind.L.J. 296, 301 (1956). Again, the record does not support the Lees' allegation. Regardless of whether or not preliminary embalming impedes autopsy findings, there is no evidence that Weston knew preliminary embalming would or had taken place. Several depositions show Weston ordered the autopsy prior to the removal of Randy's body from the apartment to the funeral home. Weston gave no other instructions concerning preparation of the body other than to request Michael Owens to contact the Lees as to their wishes concerning funeral arrangements. Thereafter, Weston had no contact with the body. There was a total absence of evidence that Weston knew of the preliminary embalming.

The function of the material filed in support of a motion for summary judgment is to enable "the court, by piercing the pleadings, to establish the existence, or conversely, the non-existence of a genuine issue of fact." Pan American World Airways, Inc. v. Local Readers Service, Inc., (1968) 143 Ind.App. 370, 240 N.E.2d 552, 555. Here, Weston sustained his burden of showing he was not responsible for the partial embalmment of Randall's body prior to autopsy, a fact which the Lees would have to prove otherwise in order to sustain their alleged cause of action. The burden then rested on the Lees to demonstrate the existence of a genuine triable issue through affidavits, depositions, answers to interrogatories, admissions and/or testimony. Renn v. Davidson's Southport Lumber Co., Inc., (1973) 157 Ind.App. 446, 300 N.E.2d 682; Doe v. Barnett, (1969) 145 Ind.App. 542, 251 N.E.2d 688. This they failed to do. In effect, they rested on their pleading contrary to Ind. Rules of Procedure, Trial Rule 56(E) which provides:

. . . . When a motion for a summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in The trial court properly granted summary judgment as to the first paragraph of Lees' complaint.

this rule, must set forth specific facts showing that there is a genuine issue for trial. . . .

ISSUE TWO

In their second paragraph of complaint, the Lees allege that by virtue of the coroner's verdict of death by "Aspiration of body content/Due to overdose" both the memory of their son and they were defamed and as a consequence they underwent "extreme outrage and great emotional stress and anguish and . . . suffered physical and psychical illness", all to their damage. They claim in their brief that, since Randall lived with them and was dependent on them for support and care, implying he died of a drug overdose was "a direct smirch on them, as their son had not achieved the emancipation which would have made him a separate and sole entity of his own for society's purposes". Because of the close domestic relationship between them and their dead son they claim the three were necessarily identified in the minds of those who knew them or knew of them and, therefore, their reputations and character in the eyes of others suffered by virtue of the verdict. However, they are unable to cite any authority in support of their position and we must reject it.

The applicable rule concerning whether one can sue for the defamation of a deceased relative is concisely stated in 50 Am.Jur.2d Libel & Slander § 320 (1970):

Although a right of action for damages for defamation of a deceased person existed under the Roman law, and still exists in some jurisdictions which adhere to the civil law, it is established that defamation of a deceased person does not give rise to a right of action at common law in favor of the surviving spouse, family, or relatives who are not defamed. And this is the rule notwithstanding the fact that the commonly accepted definition...