Bonilla v. Reeves

• Decision Date: 14 February 1966
• Citation: 267 N.Y.S.2d 374,49 Misc.2d 273
• Parties: Dionisio Orsini BONILLA et al., Plaintiffs, v. Charles D. REEVES et al., Defendants. . Jan. 28 1966. Supplemental opinion
• Court: New York Supreme Court

Page 374

267 N.Y.S.2d 374

49 Misc.2d 273

Dionisio Orsini BONILLA et al., Plaintiffs, v. Charles D. REEVES et al., Defendants.

Supreme Court, Special Term, New York County, Part I.

Jan. 28 1966.

Supplemental opinion Feb. 14, 1966.

Dora Aberlin, New York City, for plaintiffs.

Martin Clearwater & Bell, New York City, for defendant Thomas.

Wright & Livingston, Newark, for defendant Schulz.

ABRAHAM N. GELLER, Justice.

This is an action for damages for interference with and prevention of the right of sepulchre. The damages in such an action are for the wounded feelings and mental distress suffered by next of kin by reason of mutilation or dissection of the decedent's body or the prevention of the right to bury his entire remains (see Darcy v. Presbyterian Hospital in City of New York, 202 N.Y. 259, 95 N.E. 695, for review of ecclesiastical and common law principles and their acceptance by American courts).

Decedent was a migratory Puerto Rican farm worker employed in 1958 on a farm near Newark, New York. He fell from a truck and struck his head. Thereafter he was treated for a fractured skull and was eventually referred to a leading neurosurgeon. He died in May 1960. The County Coroner authorized an autopsy which was performed by a Dr. Thomas. He removed the brain and turned it over to the aforementioned neurosurgeon at the latter's request for the purpose of dissection and examination. The brain was never returned by the neurosurgeon and the body was buried without the brain. Defendants do not contend that any next of kin authorized such dissection and retention.

Decedent left a natural child, who was living in Puerto Rico with her mother. Decedent's father also lived in Puerto Rico. Decedent's employer sent telegrams within a few hours after death to his father as well as to his brother, who resided in New York City, asking for instructions. The father states that he replied, asking that the body be sent to Puerto Rico for interment. The employer had had the body sent to a local undertaker, who is also sued herein. The employer states that the brother telephoned and spoke to the foreman and two Puerto Rican workers, requesting that a 'nice' coffin be selected and arrangements made for shipping the body to a Puerto Rican undertaker, and to hold the body subject to his coming the next day, a Sunday. The brother denies that he ever made any call about funeral arrangements. In any event, he did not appear and the body was shipped by airplane on Monday to Puerto Rico. The undertaker received $900 from Workmen's Compensation funds. Plaintiffs dispute $480 thereof as unauthorized and excessive, this apparently consisting of the charge made for the 'nice' casket and embalming, which was in addition to the undisputed sealer casket necessary for air transport. The balance of workmen's compensation death payment in the amount of $9,271 was paid for the benefit of the natural daughter.

An action was brought in 1962 in the federal district court on behalf of the child by her mother as guardian for damages based on the right of sepulchre, and by the mother as administratrix of the estate with respect to the allegedly excessive funeral bill. The action was dismissed as against the undertaker on jurisdictional grounds. The remaining defendants included the employer and the neurosurgeon. Dr. Thomas was not then sued but produced as a witness on behalf of plaintiffs.

The trial court held as a matter of law that compensatory damages for wounded feelings and mental distress could not be recovered by the child, only four years old at time of death and too young to comprehend and suffer any such damages. The trial court, however, submitted the matter of punitive damages to the jury, which rendered a verdict for the defendants. The Court of Appeals for the Second Circuit affirmed the judgment in all respects (sub nom Chaparro v. Jackson & Perkins Company, 346 F.2d 677 [1965]) and the Supreme Court denied certiorari, 382 U.S. 931, 86 S.Ct. 322, 15 L.Ed.2d 342.

This action was thereafter commenced in this court in July 1965. The plaintiffs are the father, the child by her mother as her guardian, and the mother as administratrix. The first cause of action is for damages for the unauthorized autopsy (not involved on this motion); the second is by the father against Dr. Thomas, the neurosurgeon, and the workmen's compensation insurer which paid the neurosurgeon a fee for sectioning and examining the brain, and by the child against Dr. Thomas alone, for damages to both plaintiffs' feelings in removing, mutilating and failing to return the brain to the body of decedent; the third is by the father and the child against the undertaker and other related defendants for damages to both plaintiffs' feelings in holding the body for three days and conducting funeral services and a wake instead of sending it immediately to Puerto Rico as instructed; the fourth is by the mother as administratrix for the $480 allegedly excessive charge asserted against the undertaker and the employer's manager who assisted in such payment being made.

The plaintiffs have moved for summary judgment on the second cause of action as against Dr. Thomas and on the third and fourth causes of action as against the undertaker. Dr. Thomas has requested summary judgment in his favor on grounds of res judicata, collateral and equitable estoppel, and statute of limitations. The undertaker has limited his request for summary judgment in his favor to the ground of the statute of limitations.

As to the statute of limitations: This cause of action arose at time of death in May 1960. If it was barred by the CPA statute of limitations prior to September 1, 1963, the effective date of CPLR, it remains barred; if it was not barred on September 1, 1963, plaintiffs get the benefit of the CPA or CPLR statute of limitations governing such action, whichever is longer (CPLR 218). Damages for wounded feelings and mental anguish arising from invasion of or interference with the right of sepulchre are clearly damages for a personal injury and the action in tort is one to recover for a personal injury (General Construction Law, § 37-a; Lubin v. Sydenham Hospital, 181 Misc. 870, 42 N.Y.S.2d 654). The statute of limitations for an action to recover damages for a personal injury was (and still is) three years (CPA § 49). However, there was an exception to that provided in CPA § 48 (2), where the liability was 'created by statute,' the action then being governed by the six year statute. That exception no longer obtains under CPLR (see CPLR 214(2) and (5)), but the question here is controlled by the CPA statute of limitations. Plaintiffs claim applicability of CPA § 48(2) on the ground that the Penal Law and the Public Health Law contain a number of regulatory and penal provisions indicating the limits and conditions of an autopsy. But 'liability created by statute,' to come under the six year statute rather than the general three year statute for personal injury actions, means a liability which would not have existed except for the statute, a new right of action otherwise unknown to law (see, e. g., Frank Shepard Co. v. Zachary P. Taylor Pub. Co., 234 N.Y. 465, 138 N.E. 409; Cimo v. State, 306 N.Y. 143, 116 N.E.2d 290; Bevelander v. Town of Islip, 10 A.D.2d 170, 199 N.Y.S.2d 561). Liability for damages for invasion of right of sepulchre obviously was not 'created by statute' but is part of basic law (Darcy v. Presbyterian Hospital in City of New York, supra).

The governing statute being three years, the father's causes of action were barred after May 1963. (Moreover, his action should be dismissable on grounds of equitable estoppel. In an action based on sepulchre, all interested parties' rights should be settled in one action, as there can be but a single recovery. Brown v. Broome County, 8 N.Y.2d 330, 207 N.Y.S.2d 657, 170 N.E.2d 666, 83 A.L.R.2d 952). In Gostkowski v. Roman Catholic Church, etc., 262 N.Y. 320, 325, 186 N.E. 798, 800, the court said that it would be 'inconceivable that each member of the family could maintain a separate action to recover for mental pain and anguish' and that 'in the multitude of such actions there is injustice.' The father could not sit by and await final determination in the child's federal action. Having failed to intervene, he should be estopped.)

The child's causes of action, howevr, are not barred by the statute of limitations, since infancy permits an extension of time to sue to three years after reaching the age of twenty-one years (CPA § 60, substantially incorporated in CPLR 208). Assuming that the only next of kin of a deceased person is an infant child, who is too immature to suffer mental anguish at the time, such an action should be permitted to be brought when sufficient appreciation of the act is acquired; otherwise, one who had violated the grave would be immune becaus of the fortuitous circumstance that an infant was the only next of kin. Here, however, the child was not the only next of kin and a prior action was instituted in her behalf of her guardian, with the nearest adult next of kin sitting by awaiting its determination.

The child's...