Alderman v. Ford

• Decision Date: 06 November 1937
• Docket Number: 33594.
• Citation: 146 Kan. 698,72 P.2d 981
• Parties: ALDERMAN v. FORD et al.
• Court: Kansas Supreme Court

72 P.2d 981

146 Kan. 698

ALDERMAN v. FORD et al.

No. 33594.

Supreme Court of Kansas

November 6, 1937

Syllabus by the Court.

A widow has right to possession of dead body of her husband in same condition in which it was when he died.

An autopsy unauthorized by dead man's widow or some other person having authority to so authorize is an invasion of right of widow to possession of body in condition in which it was when her husband died.

A widow may maintain action for mental pain and suffering resulting directly from unauthorized autopsy of body of her husband notwithstanding widow suffered no physical injury.

In action for unlawful autopsy of body of plaintiff's husband, petition which sought certain sum as damages and which alleged that plaintiff was damaged on account of violated rights and damaged by mental anguish and depression of spirits and insult to her feelings caused by tortious acts of defendants, complied with statute providing for contents of petition as against general demurrer (Gen.St.1935 60-704).

An action for mental pain and suffering resulting from unauthorized autopsy of body of plaintiff's husband is one for injuries to rights of widow and hence may be commenced within two years from time when cause of action arose (Gen.St.1935, 60-306, subd. 3).

1. The widow of a deceased man has a right to possession of the dead body of her husband in the same condition in which it was when he died.

2. An autopsy unauthorized by his widow, or some other person having authority to so authorize, on the dead body of a man is an invasion of the right of the widow to possession of the body, as described in the above paragraph of the syllabus.

3. A widow may maintain an action for mental pain and suffering the direct result of the unauthorized autopsy on the body of her husband, even though she suffered no physical injury.

4. An action such as described in the foregoing paragraphs of the syllabus is one for injury to the rights of another and may be commenced within two years from the time when the cause of action arose.

Appeal from District Court, Montgomery County; Joseph W. Holdren Judge.

Action by Bertha Alderman against Sherman Ford and another, wherein defendants filed a demurrer. From a judgment for defendants, plaintiff appeals.

Reversed, with directions.

Walter S. Keith, of Coffeyville, for appellant.

Richard L. Becker, of Coffeyville, and Jay W. Scovel, of Independence, for appellees.

SMITH Justice.

This was an action for money. Judgment was for defendants sustaining a demurrer to the petition on the ground that it did not state facts sufficient to constitute a cause of action. Plaintiff appeals.

The petition alleged that one Alderman had been the husband of plaintiff and that he died December 20, 1935; that one of the defendants, who was a surgeon, and the other defendant, who was not a surgeon, "did cut open and cut into the dead body of Arthur Alderman, and did then and there cut into and probe into, and look into and inspect and study the body and parts of the dead body of Arthur Alderman, all on the 20th day of December, 1935, and at and within Montgomery County, Kansas, and all without the knowledge, presence or consent of plaintiff." The petition then alleged that plaintiff had the right to dispose of the corpse of her dead husband and had the exclusive right of sepulcher and had the exclusive right to the possession of the dead body of Alderman in the same condition it was when the breath of life left it; that plaintiff at the instance of defendants was denied a view of the body of Alderman until it was clothed and in its coffin; that after the body of Alderman had been interred one of the defendants told her that he had the body cut open in order see to whether he would be liable for his death. The petition then stated that plaintiff "suffered great mental suffering, and great injury to her feelings, and was in mental anguish, on account of the wrongful and tortious acts of the defendants herein in mutilating the corpse." The petition then alleged that plaintiff had been damaged on account of these violated rights by defendants.

Defendant Ford demurred to this petition on the grounds: First, that the petition did not state facts sufficient to constitute a cause of action; second, that the petition showed on its face that it was barred by the statute of limitations, the action not having been commenced within one year from the date of the cause of action, if any arose.

Defendant Hudiburg demurred on the first ground stated above.

These demurrers were sustained generally and plaintiff was given 20 days in which to amend. Plaintiff stood upon the allegations in the petition. Hence this appeal.

The question argued in this court by both parties is whether the petition stated facts sufficient to constitute a cause of action. It will be noted that the petition did not allege that plaintiff suffered any physical injury. She alleged mental pain and suffering only.

Defendants argue that on this account she cannot recover in this action. They rely on the rule that in this state one cannot recover for mental anguish and injury to feelings unless in connection therewith there is a physical injury or there is malice or wantonness shown. See City of Salina v. Trosper, 27 Kan. 544.

At the outset it may be stated that this is not a case where recovery depends on negligence. The right of plaintiff, the invasion of which she claims enables her to recover here, is the right to receive the dead body of her late husband in the condition in which it was when he died so that she could give it decent burial. This right has been recognized by statute in this state. It is provided that the unclaimed dead body of any criminal or other person may be delivered to a medical college for purposes of study, but not if the deceased during his last sickness requested to be buried, and not if any relative or friend asked to have the body buried, and the body may never be turned over to a school until the person in charge of deceased at the time of his death shall have made diligent search for relatives and friends of deceased and no response has been received. See G.S.1935, 65-901 to 65-905. This statute does not apply to this case because the dead body here was not that of a criminal or unclaimed person. It indicates, however, that the Legislature recognized the right of the next of kin to bury the dead body of a relative. There is a statute that makes it a crime to remove a dead body from the place of interment for the purpose of selling it or for mere wantonness or mischief. There is an exception to this statute where the disinterment is done with the consent of the "near relations" of deceased. See G.S. 1935 21-911 to 21-914. This statute does not cover a case of unauthorized autopsy such as we have here. It is referred to here mainly because it is indexed in our statutes under the head of "Crimes against Public Morals and Decency." We do not consider that it would add anything to this opinion to discuss the question of whether the right the next of kin have in a corpse is a property right. Others have spoken on this subject in a more fitting language than is ours to command. See Jackson on The Law of Cadavers, page 170, which says: "Questions which relate to the custody and disposal of the remains of the dead do not depend upon the principles which regulate the possession and ownership of property, but upon the considerations arising partly out of the domestic relations, the duties and obligations which spring from family relationship and the ties of blood; partly out of the sentiment so universal among all civilized nations, ancient and modern, that the dead should repose in some spot where they will be secure from profanation; partly out of what is demanded by society for the preservation of the public health, morality and decency, and partly often out of what is required by proper respect for and observance of the wishes of the...