76 N.W.2d 16 (Mich. 1956), 7, Deeg v. City of Detroit

Docket Nº:7.
Citation:76 N.W.2d 16, 345 Mich. 371
Opinion Judge:[345 Mich. 374] CARR, Justice.
Party Name:Alma DEEG, Plaintiff and Appellee, v. CITY OF DETROIT, a municipal corporation, Department of Street Railways, Defendant and Appellant.
Attorney:[345 Mich. 373] James S. Shields, A. Albert Bonczak, David Grainer, Detroit, for defendant and appellant. Markle, Markle & Eubank, Detroit, for plaintiff and appellee.
Judge Panel:Before the Entire Bench.
Case Date:April 02, 1956
Court:Supreme Court of Michigan
 
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76 N.W.2d 16 (Mich. 1956)

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

Page 17

[Copyrighted Material Omitted]

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[345 Mich. 373] 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.

[345 Mich. 374] 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[345 Mich. 375] 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,

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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 [345 Mich. 376] 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...

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