Boyle v. Chandler

• Court: Delaware Superior Court
• Writing for the Court: PENNEWILL, C. J.
• Citation: Boyle v. Chandler, 138 A. 273, 33 Del. 323 (Del. Super. 1927)
• Decision Date: 24 March 1927
• Parties: ROBERT STUART BOYLE, AGNES BOYLE COX, JAMES BOYLE, ISABELLE BOYLE WAUGH, ROBERT BOYLE, ANNIE BOYLE MCCORMACK, JOHN BOYLE, NEAL BOYLE & JOSEPH BOYLE, v. JAMES T. CHANDLER

138 A. 273

33 Del. 323

ROBERT STUART BOYLE, AGNES BOYLE COX, JAMES BOYLE, ISABELLE BOYLE WAUGH, ROBERT BOYLE, ANNIE BOYLE MCCORMACK, JOHN BOYLE, NEAL BOYLE & JOSEPH BOYLE, v. JAMES T. CHANDLER

Superior Court of Delaware, New Castle County

March 24, 1927

Superior Court for New Castle County, March Term, 1927.

Summons Case, No. 268, September Term, 1926.

The facts are stated in the charge of the Court to the jury.

Verdict for plaintiffs.

George W. Lilly for plaintiffs.

Frank L. Speakman and David J. Reinhardt for defendant.

PENNEWILL C. J., and HARRINGTON, J., sitting.

OPINION

PENNEWILL, C. J. charging the jury:

This is an action in tort brought by Robert Stuart Boyle, surviving husband of Isabelle Broadley Boyle, deceased, and Agnes Boyle Cox, James Boyle, Isabelle Boyle Waugh, Robert Boyle, Annie Boyle McCormack, John Boyle, Neal Boyle and Joseph Boyle, surviving children of the said Isabelle Broadley Boyle, deceased, against James T. Chandler to recover damages for what is alleged to have been an improper and indecent burial of the said Isabelle Broadley Boyle, who died in this city on the 21st day of August, 1926, and whose body was delivered to the said defendant for burial at Newport News, Virginia.

It is alleged in the plaintiff's declaration that--

"John Boyle, Neal Boyle and Robert Boyle, three of the plaintiffs above named, acting for themselves and the other plaintiffs, went to the undertaking establishment of the defendant and selected a coffin at an agreed price of three hundred dollars, and employed the said defendant to properly and decently prepare the corpse of the said Isabelle Broadley Boyle for burial in said coffin so selected and delivered the said body of the said Isabelle Broadley Boyle to the said defendant in trust and confidence and upon the promise of the said defendant that he would properly and decently prepare the said body of the said Isabelle Broadley Boyle for burial and that he would ship the said body in the casket or coffin so selected by way of the Pennsylvania Railroad Company's lines to Newport News, Virginia; and thereupon it became and was the duty of the defendant to prepare the said body of the said Isabelle Broadley Boyle for proper and decent burial and to properly and decently place the same in the said coffin or casket selected as aforesaid and to safely deliver the said body in said casket or coffin to the station of the Pennsylvania Railroad at Wilmington; yet the defendant, unmindful of his said duty, wilfully, fraudulently, wantonly, and without the authority or knowledge and against the wishes of the plaintiffs, but in violation and in disregard thereof and apart from his promises as aforesaid, and trespassing upon the rights of the plaintiffs as custodians of the body and person of the said Isabelle Broadley Boyle as heretofore set forth, and outraging said body and also the plaintiffs, and against, as well, the good morals and the peace of the community, did, after having placed the said body of the said Isabelle Broadley Boyle in the said coffin or casket selected as aforesaid, remove the said body from the said casket or coffin and place it in a different casket or coffin, and after removing the said body from the said casket or coffin selected as aforesaid and placing it in another and different coffin or casket, delivered the said body to the said Pennsylvania Railroad Station in Wilmington for shipment to Newport News. That by reason of the said acts of the defendant, the rights of the plaintiffs, who were the lawful surviving, loving and devoted husband and children respectively of the said Isabelle Broadley Boyle, have been recklessly and wilfully disregarded and their feelings cruelly lacerated, and the devotion, love and respect that the plaintiffs entertained for the said Isabelle Broadley Boyle have been shocked and wounded and the plaintiffs have suffered greatly therefrom, both in mind and body to their damages, to wit, in sum of fifteen thousand dollars ($ 15,000)."

There are three other counts in the declaration, but differing from the first only in charging that the defendant did remove the said body from the selected coffin and place it in a different coffin and one of much cheaper grade than the selected one, and causing by the removal the right leg of the body of the deceased to become swollen, the left leg to be shortened approximately four inches, causing the chin of the deceased to be bruised, causing her death clothing to be disarranged, and articles of personal adornment to be greatly disarranged and misplaced, and otherwise greatly disfiguring the said body.

In briefer and more simple language the plaintiffs charge that the defendant, an undertaker of this city, to whom the body of Isabelle Broadley Boyle was delivered for burial, did wilfully, fraudulently and wantonly, and without the authority or knowledge and against the wishes of the plaintiffs remove the said body from the casket or coffin selected by the plaintiffs and place it in a different casket or coffin before delivering it to the railroad company for shipment to Newport News, and that the defendant in other ways wantonly, wilfully and fraudulently treated the said body improperly and indecently in preparing the same for burial.

The defendant admits that the body of Isabelle Broadley Boyle was delivered to him to be prepared for burial, and to be shipped to Newport News, Virginia, for burial there. He admits that the body was removed from the casket that had been selected by the plaintiffs and placed in another casket before shipment to the place of burial, but claims that the substituted casket was a more expensive one, and the subsitution was made because, after taking the original casket to the railroad station, it was discovered that it was too long for the case in which it was to be shipped; that it was impossible to get a longer case box in time to ship the body to Newport News by the train it was to go on, and the best that could be done was to get a shorter casket and place the body therein. The defendant denies that he substituted a cheaper coffin for the one selected by the plaintiffs, or treated the body of Isabelle Broadley Boyle with indignity or in any improper way, and further denies that he was guilty of any wanton, wilful or fraudulent conduct in respect to the body of said deceased, or of any gross negligence in preparing the body for burial and shipment. If there was any negligence, which he denies, he insists it was not gross, inexcusable or in reckless disregard of consequences.

A motion has been made by the defendant for binding instructions, or what is equivalent thereto, which means that the Court shall direct the jury to return a verdict for the defendant, citing the following authorities:

Thompson v. Pierce, 95 Neb. 692, 146 N.W. 948; Floyd v. Atlantic Ry. Co., 167 N.C. 55, 83 S.E. 12, L. R. A. 1915B, 519; Larson v. Chase, 47 Minn. 307, 50 N.W. 238, 14 L. R. A. 85, 28 Am. St. Rep. 370; Mensinger v. O'Hara, 189 Ill.App. 48, 53, 54; Koerber v. Patek, 123 Wis. 453, 102 N.W. 40, 68 L. R. A. 956; Nichols v. Central Vt. R. Co., 94 Vt. 14, 109 A. 905, 12 A. L. R. 336; 15 Ency. Pl. & Pr., 527, 528; Dicey, Parties to Actions, pp. 329, 330, 335; Perry, Common Law Pleading, p. 136; 1 Chitty's Pl., p. 55.

This motion is based on what the law terms a misjoinder of parties plaintiff. It is claimed by the defendant that the surviving husband of the deceased and the children of the deceased cannot be legally joined in a case of this kind, because if any one has the right to sue it is the husband, and not the children, during the lifetime of the husband. There is a great deal of confusion in the reported cases and text-books on this point, and particularly the grounds upon which the conclusions are based. We have seen no logical and satisfactory...