Deeg v. City of Detroit

• Citation: 345 Mich. 371,76 N.W.2d 16
• Decision Date: 02 April 1956
• Docket Number: No. 7,7
• Parties: Alma DEEG, Plaintiff and Appellee, v. CITY OF DETROIT, a municipal corporation, Department of Street Railways, Defendant and Appellant.
• Court: Supreme Court of Michigan

Page 16

76 N.W.2d 16

345 Mich. 371

Alma DEEG, Plaintiff and Appellee, v. CITY OF DETROIT, a municipal corporation, Department of Street Railways, Defendant and Appellant.

No. 7.

Supreme Court of Michigan.

April 2, 1956.

James S. Shields, A. Albert Bonczak, David Grainer, Detroit, for defendant and appellant.

Markle, Markle & Eubank, Detroit, for plaintiff and appellee.

Before the Entire Bench.

CARR, Justice.

The plaintiff Alma Deeg, now deceased, was the widow of John Deeg whose death occurred on March 6, 1949, as a result of a traffic accident on a public street in the City of Detroit. It is claimed that a motor bus owned and operated by the defendant, Department of Street Railways, ran over Deeg's body, inflicting injuries of such character as to cause death within a few minutes. Following the accident he was removed to Receiving Hospital, which was maintained by the city. Subsequently an autopsy, or post-mortem examination, was conducted, in the course of which certain organs were removed and sent to a laboratory for examination, apparently for the purpose of determining the presence, or absence, of alcohol. The laboratory examination resulted in the destruction of the organs so removed.

On January 9, 1951, suit was instituted by the widow to recover damages from the defendant on the ground that the alleged mutilation of the body of John Deeg was done without her consent and in violation of her legal rights with reference to the possession and burial of the body. The declaration alleged that the autopsy was conducted without lawful authority, that there was no reason or necessity therefor, and that the medical examiner of Wayne County who performed the autopsy acted pursuant to the request and direction of a physician and surgeon who was in the service of the defendant City of Detroit, Department of Street Railways. Defendant by answer denied that it, or anyone representing it, had procured or participated in the autopsy.

On the trial of the cause evidence was introduced establishing that defendant's physician and surgeon was present at the autopsy, and that a material part of the work performed by the medical examiner of Wayne County was done at his request. At the conclusion of plaintiff's proofs counsel for defendant moved for a directed verdict, claiming that the evidence was insufficient to establish a prima facie case, and that the cause of action, if there was such, did not survive the death of Mrs. Deeg, who had passed away on the 20th of December, 1952, prior to the trial. The motion was denied and the case submitted to the jury which returned a verdict in plaintiff's favor. A motion for a new trial, made by defendant, was denied. The instant appeal has resulted, defendant claiming that its motion for a directed verdict should have been granted and that the denial of the motion for a new trial was erroneous.

The pre-trial hearing in the cause was held on November 5, 1953. At that time it was called to the attention of the court that Alma Deeg was deceased and that an administrator of her estate had been appointed by the probate court of Macomb County. It was agreed by counsel that the action might be continued by the administrator, and under date of November 12, 1953, a suggestion of the death of Mrs. Deeg was filed by counsel appearing for the plaintiff. The trial of the case was begun on February 1, 1954. Prior to the motion for a directed verdict at the conclusion of plaintiff's proofs on the trial, defendant did not, by motion to dismiss or otherwise raise the question that the cause of action ceased to exist on the death of Mrs. Deeg.

It seems to be settled by the great weight of authority that the unlawful and intentional mutilation of a dead body gives rise to a cause of action on behalf of the person or persons entitled to the possession, control, and burial of such body. In Keyes v. Konkel, 119 Mich. 550, 78 N.W. 649, 44 L.R.A. 242, it was held that an action of replevin would not lie for the recovery of a dead body, the common law principle that there is no property right therein being applied. In discussing the situation presented in said case, it was said:

'Recovery for the refusal of the right to bury or for mutilation of the body is rather based upon an infringement of a right than upon the notion that the property of plaintiff has been interfered with. The recovery in such cases is not for the damage to the corpse as property, but damage to the next of kin by infringement of his right to have the body delivered to him for burial without mutilation.'

In Doxtator v. Chicago & West Michigan Railway Co., 120 Mich. 596, 79 N.W. 922, 45 L.R.A. 535, it was held that defendant was not liable to plaintiff for damages because portions of the limbs of her husband, who received injuries causing death as a result of being run over by cars of the defendant, were amputated and subsequently burned by employees of the hospital in which the operation was performed. The proofs indicated that defendant's physician and surgeon was not responsible for such disposition of the amputated members. In commenting on the general principles involved in such case, it was said:

'The plaintiff sues to recover damages on account of having been deprived of the right to give the remains of her deceased husband a Christian burial, and alleges that she was deprived of this right by the wrongful act of the defendant. At the common law there was said to be no property in a dead body, and in one sense this may still be deemed an accurate technical statement; but it has been held in a number of well-considered American cases that the one whose duty it is to care for the body of the deceased is entitled to possession of the body, as it is when death comes, and that it is an actionable wrong for another to interfere with that right by withholding the body or mutilating it in any way. Larson v. Chase, 47 Minn. 307, 50 N.W. 238 [14 L.R.A. 85, 28 Am.St.Rep. 370]; Foley v. Phelps 37 N.Y.S. 471; Burney v. [Children's] Hospital, 47 N.E. 401 [38 L.R.A. 413, 61 Am.St.Rep. 273]; 8 Am. & Eng.Enc.Law (2d Ed.) 834. This right is conceded.'

Without discussing the question at length, it is our conclusion that the declaration filed on behalf of Mrs. Deeg stated a cause of action in her favor and that the proofs introduced on the trial tended to support the material averments of the pleading. No inquest was ordered by proper authority, and it appears from undisputed testimony that defendant's medical representative, present at the autopsy, requested the medical examiner to remove certain organs from the body and that the action was taken pursuant to such request, although the examiner did not deem it necessary. Insofar as defendant's motion for a directed verdict was based on claims that the proofs were insufficient to establish a cause of action on behalf of Mrs. Deeg it was not well-founded.

Did Mrs. Deeg's cause of action survive her death? C.L.1948, § 612.32, Stat.Ann. § 27.684, reads as follows:

'In addition to the actions which survive by the common law the following shall also survive, that is to say, actions of replevin, actions for the conversion of property, for deceit, for assault and battery, for false imprisonment, for negligent injuries to persons, for damages done to real and personal estate, and actions to recover real estate, or any interest therein, where persons have been induced to part with the same through fraudulent representations and deceit.'

As pointed out in Keyes v. Konkel, supra, a cause of action of this nature is not based on the theory of an injury to property rights, nor does it involve a negligent injury to the person. The action rests on the theory that a personal right of the plaintiff or plaintiffs has been deliberately and wrongfully invaded. Such a cause of action was not assignable at common law, nor did it survive the death of either the plaintiff or the defendant.

In Stebbins v. Dean, 82 Mich. 385, 46 N.W. 778, an action was brought by heirs at law against the widow of Horace Beers because of the alleged destruction by her of certain deeds which had not been recorded. Prior to the final disposition of the case the defendant died and the trial court dismissed the case. Pointing out that the cause of action set up in the declaration did not survive a common law, or by virtue of statute, it was held that the suit had abated on the death of the original defendant and that dismissal of the case was proper.

In Hetfield v. Mortimer, 236 Mich. 214, 210 N.W. 326, the action for damages was based on a claim of milicious prosecution. Plaintiff had judgment in the trial court. Pending the disposition of the appeal defendant died, and the matter was called to the attention of the court by a suggestion of death duly filed. The court decided that prejudicial error had been committed in the trial and reversed the judgment. Pointing out that the cause of action did not survive either at common law or by statute, it was held that the reversal put an end to the case. In consequence no new trial was ordered. Likewise, in Begole v. Ferguson, 299 Mich. 416, 300 N.W. 146, in which defendant had judgment in an action based on alleged libel, defendant died following the submission of plaintiff's appeal to this Court but before determination thereof. It was held that the cause of action did not survive the death of the defendant. In consequence, the Court declined to consider the appeal on the merits and remanded the cause to the trial court for entry of an order dismissing the action. See, also, Jones v. Matson, 4 Wash.2d 659, 104 P.2d 591, 134 A.L.R. 708, with reference to the survival of actions for libel or slander.

In accordance with the above decisions is Howard v. Lunaburg, 192 Wis. 507, 213 N.W. 301, 57 A.L.R. 346, in which it was held that an action to recover damages for injury to the feelings of a wife as a result of the alienation of affections of her...