Allinger v. Kell, Docket No. 44792

• Decision Date: 21 January 1981
• Docket Number: Docket No. 44792
• Citation: 302 N.W.2d 576,102 Mich.App. 798
• Parties: Albert W. ALLINGER and Bernice C. Allinger, jointly and severally, Plaintiffs-Appellants v. Lenwood E. KELL, Kell-Tondin Chapel, Inc., a Michigan corporation, and Fred H.Ayers, M. D., jointly and severally, Defendants-Appellees. 102 Mich.App. 798, 302 N.W.2d 576
• Court: Court of Appeal of Michigan — District of US

Page 576

302 N.W.2d 576

Albert W. ALLINGER and Bernice C. Allinger, jointly and severally, Plaintiffs-Appellants v. Lenwood E. KELL, Kell-Tondin Chapel, Inc., a Michigan corporation, and Fred H.Ayers, M. D., jointly and severally, Defendants-Appellees.

Docket No. 44792.

102 Mich.App. 798, 302 N.W.2d 576

Court of Appeals of Michigan.

Jan. 21, 1981.

Released for Publication March 10, 1981.

[102 MICHAPP 804] Nino E. Green, Escanaba, for plaintiffs-appellants.

David J. Lori, Iron Mountain, for Kell & Kell-Tondin Chapel.

William I. McDonald, Marquette, for Ayers.

[102 MICHAPP 805] Before MacKENZIE, P. J., and BRONSON and ALLEN, JJ.

ALLEN, Judge.

This case involves the alleged mutilation of a corpse for criminal investigatory purposes and the legal responsibilities of a funeral home and county medical examiner in connection therewith. On April 11, 1979, the Menominee Circuit Court entered an order granting the funeral home's and medical examiner's motions for summary judgment. Plaintiffs appeal of right.

Plaintiffs' adult married daughter, who was residing with them at the time of her demise, was found dead by criminal means, by a person then unknown, on October 2, 1977. Plaintiffs entered into a contract with defendant Kell-Tondin Chapel, Inc., a funeral home, and its principal owner, Lenwood E. Kell, for the purpose of preparation for burial, preservation pending final interment, and burial of their daughter's body. On October 6, 1977, while the corpse was in the possession of defendant funeral home, defendant Ayers, the deputy medical examiner for Menominee County, without the consent of plaintiffs and with the permission and consent of defendant Kell, removed the hands and natural hair from the corpse.

On November 22, 1977, plaintiffs attended a preliminary examination of Edward Cramer, charged with the murder of plaintiffs' daughter. During the examination, it was revealed in open court that defendant Ayers severed the hands and natural hair from the body of the deceased. This was the first time that plaintiffs learned of defendants' actions, and, as a result, allegedly suffered mental anguish and emotional distress, resulting in various physical illnesses.

Count I of plaintiffs' four-count complaint filed November 20, 1978, alleged that defendants funeral[102 MICHAPP 806] home and Kell breached their duty to plaintiffs in allowing the mutilation of plaintiffs' daughter's corpse. Count II alleged that defendants breached their duty to disclose such mutilation to plaintiffs. Count III alleged that defendants funeral home and Kell breached their contract with plaintiffs for burial in allowing such mutilation to occur. Count IV of the complaint alleged that defendant Dr. Ayers acted without authority or right in severing and removing the hands and hair from the body of the deceased, thereby violating plaintiffs' right to provide a proper and decent burial for their daughter. Thus, Count III sounded in contract and the remaining counts sounded in tort.

In deciding the motion for summary judgment on the grounds that plaintiffs failed to state a claim upon which relief can be granted, the trial judge ruled:

(1) That plaintiffs, as "next of kin" who assumed "custody of the body for purposes of burial" within the meaning of M.C.L. 328.151; M.S.A. 14.524, had standing to bring the present action;

(2) That although plaintiffs could properly bring an action for the unlawful and intentional mutilation of a dead body, such an action was precluded in the instant case because the alleged damages for the mental anguish was non-contemporaneous with the actual mutilation; and,

(3) That the contract action by plaintiffs against defendants funeral home and Kell was precluded because plaintiffs failed to allege that defendants breached any contract to provide a funeral service.

In reviewing a grant of summary judgment under GCR 1963, 117.2(1), the motion is tested by the pleadings alone. Todd v. Biglow, 51 Mich.App. 346, 349, 214 N.W.2d 733 (1974). Because the motion [102 MICHAPP 807] tests only the legal and not the factual sufficiency of the pleadings, Grasser v. Fleming, 74 Mich.App. 338, 342, 253 N.W.2d 757 (1977), all well-pleaded allegations must be taken as true. Tash v. Houston, 74 Mich.App. 566, 254 N.W.2d 579 (1977), lv. den. 401 Mich. 822 (1978). The motion should be denied unless the alleged claims are so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recover. Koenig v. Van Reken, 89 Mich.App. 102, 104, 279 N.W.2d 590 (1979), Merit Electric Co. v. J. Boyle, Inc., 77 Mich.App. 503, 258 N.W.2d 539 (1977). Application of these standards of review and the relevant legal principles compel the conclusion that the trial judge erred in part in granting the summary judgment in favor of defendants Kell-Tondin Chapel, Inc., and Lenwood E. Kell.

We begin by observing that the plaintiffs were the proper parties to bring this suit. The statute relied on by the trial judge in support of his finding that the plaintiffs had standing to bring this suit was repealed between the time the acts complained of occurred and the filing of the complaint. 1978 P.A. 368, § 25101, effective September 30, 1978. Nonetheless, both the prior statute relied on, M.C.L. § 328.151; M.S.A. § 14.524, and the present statute M.C.L. § 333.2855; M.S.A. § 14.15(2855), provide that, unless otherwise provided by law, no "autopsy, post-mortem, or dissection shall be performed upon a dead body except by a physician, who has been granted written consent therefor by whichever 1 of the following assumes custody of the body for purposes of burial". The list which follows includes parent, surviving spouse, next of kin, or any "person charged by law with the responsibility for burial." In contrast to defendants' claim that standing to sue under the instant [102 MICHAPP 808] facts "belongs exclusively to that person enjoying the closest legal relationship to the deceased", here, the husband of the deceased, our Supreme Court has clearly stated:

"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." Deeg v. Detroit, 345 Mich. 371, 375, 76 N.W.2d 16 (1956). (Emphasis supplied.)

Since plaintiffs were entitled to, took custody of, and made all funeral arrangements for the corpse of their daughter, the trial judge was correct in holding that they had standing to sue for the mutilation of their offspring's body. Keyes v. Konkel, 119 Mich. 550, 78 N.W. 649 (1899), Doxtator v. Chicago & W. M. R. Co., 120 Mich. 596, 79 N.W. 922 (1899), Larson v. Chase, 47 Minn. 307, 50 N.W. 238, 239 (1891).

It cannot be doubted that plaintiffs could properly bring the instant action against defendants. The unlawful and intentional mutilation of a dead body gives rise to a cause of action for damages. Deeg, supra, Keyes, supra, Doxtator, supra. This right of recovery is based upon principles of tort and contract law.

Under tort law, recovery for the intentional or negligent mutilation of a dead body is based upon infringement of the right of the plaintiffs to have the body delivered for burial and interred without mutilation, other than that present at the time of death. Deeg, supra, Keyes, supra, 22 Am.Jur.2d, Dead Bodies, §§ 6, 17, 31, pp. 559, 566, 579. Where a person has the right to bury a body, interference with that right is generally actionable. 25A C.J.S. Dead Bodies § 8(1), p. 510. The trial court properly recognized this theory as the basis for plaintiffs' [102 MICHAPP 809] claims under Counts I, II and IV. In addition, the trial judge properly recognized that the measure of damages for mutilating or otherwise improperly treating a corpse is to measure the mental anguish or humiliation suffered by the plaintiffs who have been denied the comfort of knowing that the deceased has been given a comfortable and dignified resting place. Anno: Damages for mental anguish on account of mutilation of corpse, 12 A.L.R. 342, Comment, Recovery for mental anguish in unauthorized autopsy cases, 41 Mich.L.Rev. 308 (1942), Anno: Civil liability of undertaker for acts or omissions relating to corpse, 17 A.L.R.2d 770, § 2, p. 771, Anno: Liability for performing an autopsy, 83 A.L.R.2d 955, §§ 3, 6, pp. 958, 966, 22 Am.Jur.2d, supra, § 43, p. 588, 25 A C.J.S., supra, § 8(5)b, p. 517, Restatement of Torts 2d, § 868, p. 274. Recovery for injuries produced by emotional distress caused by defendants' tortious behavior is available even without accompanying physical impact. Daley v. LaCroix, 384 Mich. 4, 12, 179 N.W.2d 390 (1970), Rauhe v. Langeland Memorial Chapel, 30 Mich.App. 665, 667, 186 N.W.2d 848 (1971).

However, in applying this rule of law to the instant case, the trial judge ruled that because the plaintiffs' mental anguish was not contemporaneous with the mutilation of the corpse, recovery was precluded for lack of damages. The trial judge relied on Miller v. Cook, 87 Mich.App. 6, 273 N.W.2d 567 (1978), and Gustafson v. Faris, 67 Mich.App. 363, 241 N.W.2d 208 (1976), in reaching this conclusion. The rule in those cases was stated in Miller, supra, as follows:

"(A) cause of action does not exist for damages for mental anguish sustained upon learning of an intentional tort committed at a noncontemporaneous time [102 MICHAPP 810] upon an immediate family member". 87 Mich.App. 6, 11 (1978).

The trial judge's reliance on this principle of law to dismiss plaintiffs' cause of action was misplaced because in both Miller and Gustafson the plaintiffs (parents) were seeking damages for mental anguish based upon a wrong committed upon their offspring. Here, the wrong complained of was personal to the individual plaintiffs. The plaintiffs' claim for damages was based on the alleged injury to a specific right of the plaintiffs: the right to have the corpse under their control delivered for burial and...