Awtrey v. Norfolk & W. Ry. Co

• Decision Date: 20 September 1917
• Citation: 93 S.E. 570
• Court: Virginia Supreme Court
• Parties: AWTREY. v. NORFOLK & W. RY. CO.

93 S.E. 570

AWTREY.

v.NORFOLK & W. RY. CO.

Supreme Court of Appeals of Virginia.

Sept. 20, 1917.

Error to Circuit Court of Washington County.

Action by Mrs. S. C. Awtrey against the Norfolk & Western Railway Company. Judgment sustaining the demurrer to the declaration, and plaintiff brings error. Affirmed.

Gilmer & Stant, of Bristol, for plaintiff in error.

Widener & Potts, of Abingdon, for defendant in error.

PRENTIS, J. The plaintiff in error, Mrs. S. C. Awtrey, complains of a judgment sustaining a demurrer to her declaration in an action against the Norfolk & Western Railway Company, the defendant in error.

The substance of the complaint is thus stated in the petition for the writ of error:

"The declaration complained of a failure on the part of the defendant to properly collect and prepare for burial the dismembered portions of the body of plaintiff's son, who was killed by a train of the said defendant company, and for failure to notify plaintiff of her said son's death, thereby withholding from her the body of her said son, and depriving her of the solace and comfort of properly burying same."

The action is based upon an established common-law doctrine. It is well settled that the near relatives of a deceased person have a legal right to the solace of burying the body, and that any interference with that right, whether by mutilation of the body after death, or by withholding it from the relatives, is actionable.

In Finley v. Atlantic Transport Co., 90 Misc. Rep. 4S0, 153 N. Y. Supp. 440, in which a steamship company was charged by a son with burying his father's body at sea when the ship was almost in port, although the company had already embalmed the body, had enough of his money to pay all expenses incurred, and from documents found in the possession of the father knew the son's address, a demurrer to the complaint was overruled and it was held that the action would lie. In a carefully considered opinion by Shearn, J., the cases are collected and the doctrine reiterated. It will be noted, however, in this case that the son was forever denied the privilege of burying his father, because the steamship company had unnecessarily buried the body at sea.

In Larson v. Chase, 47 Minn. 307, 50 N. W. 238, 14 L. R. A. 85, 28 Am. St. Rep. 370, the action was brought by a widow for the wrongful mutilation and dissection of her husband's body, and the plaintiff was allowed to maintain the action. The doctrine is also well stated in 8 R. C. L. 695, 696; Keyes v. Konkel, 119 Mich. 550, 78 N. W. 649, 44 L. R. A. 242, 75 Am. St. Rep. 428; Darcy v. Presbyterian Hospital, 202 N. Y. 259, 95 N. E. 695, Ann. Cas. 1912D, 1238.

The conceded facts in this case are that the dead body of the son of the plaintiff was found upon the railroad of the defendant in a mutilated condition on the morning of the 30th day of August, 1915; that at some time during that morning the body was taken charge of by the coroner, under the statute (Code Va. 1904, § 3938 amended by Acts 1910, p. 338), which requires such coroner, upon notice of a "sudden, violent, unnatural or suspicious death, * * * to view the body and make inquiry into the circumstances of the * * * death, " etc. It seems to be probable that the servants of the railway company allowed the body to remain undisturbed for a few hours until the coroner had been notified, under the view that it would be unlawful for any person to disturb it until after the coroner came. While this is a mistaken view of the law, at the same time it is held by many persons, and it is undoubtedly true that in many cases, it is proper that nothing should be disturbed until all of the physical facts can be judicially ascertained by the coroner (Forde's Case, 16...