Brown Funeral Homes & Insurance Co. v. Baughn

• Decision Date: 16 March 1933
• Docket Number: 6 Div. 253.
• Citation: 148 So. 154,226 Ala. 661
• Parties: BROWN FUNERAL HOMES & INS. CO. v. BAUGHN.
• Court: Alabama Supreme Court

148 So. 154

226 Ala. 661

BROWN FUNERAL HOMES & INS. CO. v. BAUGHN.

6 Div. 253.

Supreme Court of Alabama

March 16, 1933

Rehearing Denied May 25, 1933.

Appeal from Circuit Court, Jefferson County; Gardner Goodwyn, Judge.

Action for damages by Ada Baughn against the Brown Funeral Homes &amp Insurance Company. From a judgment for plaintiff, defendant appeals.

Affirmed conditionally.

R. B Evins, of Birmingham, and Huey, Welch & Stone, of Bessemer for appellant.

Ross, Bumgardner, Ross & Ross, of Bessemer, for appellee.

THOMAS Justice.

This case was submitted on count 3. The action of the trial court in overruling the demurrer to count 3 is not presented in argument, and will not be here considered. Georgia Cotton Co. v. Lee, 196 Ala. 599, 72 So. 158.

The refusal of affirmative instructions requested by defendant is urged. The rules as to the giving and refusing of the general affirmative charge are well understood. McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135.

It is true that he who affirms negligence has the burden of showing the causal connection between the injury and the negligence or omission charged. Koger v. Roden Coal Co., 197 Ala. 473, 73 So. 33. And the mere possibility that the negligence of defendant caused the injury, without evidence thereof, is not sufficient to take the case to the jury, or support a verdict for plaintiff. Connors-Weyman Steel Co. v. Kilgore, 202 Ala. 372, 80 So. 454; St. Louis & S. F. R. Co. v. Dorman, 205 Ala. 609, 615, 89 So. 70, and authorities; Ivey v. Railway Fuel Co., 211 Ala. 10, 99 So. 177.

The case of Lawson v. Mobile Electric Co., 204 Ala. 318, 85 So. 257, dealt with the burden of proof and was to the effect that in the absence of evidence of actual negligence, evidence of due care may present a question for the court, in the sense that the mere presumption involved in the res ipsa loquitur doctrine will not be the effect of evidence, so as to raise a conflict for decision by the jury. Langley Bus Co. v. Messer, 222 Ala. 533, 535, 133 So. 287.

It is further established that while the jury cannot be required to accept expert testimony, yet it may do so in drawing the reasonable inferences of fact on which the verdict must rest. In this case the evidence goes further than the rule above indicated; there is the expert testimony of witnesses Gains and Griffin that was for consideration by the jury with the other evidence.

In Gains' testimony there is a statement to the effect that in pneumonia cases purging sometimes occurs, and sometimes discoloration appears; that where there is discoloration this condition "shows up before the embalmer ever touches" the body; that "Frequently pneumonia cases show places on the body of dark discoloration. Sometimes they show splotches on the face; sometimes they show bluish color, and these conditions result when the embalmer has done his best, in fact, these conditions show up before the embalmer ever touches it. In my experience I have had them before I had ever touched the body; this occurs even when we get the body fifteen or twenty minutes or an hour or an hour and a half after the death, even in such cases discoloration is there when I get the body and it cannot be removed. This is not infrequent." There was testimony that there were no discolorations when the body was delivered to the embalmer, or for a time after the body was returned to appellee's home. And the reasonable inferences to be drawn from Gains' testimony were that these were some of the evidences of improper embalming.

There was yet another phase of the evidence-that of offensive odors emanating from the body within a short time after its treatment by the embalmer. As an expert the witness Gains testified that a body properly embalmed should not emit offensive odors between the hours indicated by the evidence, or within three or four hours after death, and that such condition evidenced an improper embalming of that body. To like effect was Gains' evidence as to the purging of the body from the nose and mouth in the quantities and manner indicated by the evidence; and that witness explained the cause of purging and its relation to proper embalming. He likewise explained the process of puncturing several gas pockets to relieve the pressure of gas, which will cause purging after death if not so relieved.

There are reasonable inferences that may be drawn from the testimony of the defendant's witness Griffin, to the effect that embalming will delay decomposition in bodies that have died with pneumonia, and that they will not emit the odor of decomposition within ten or twelve hours after death if properly treated; that he was present and "did a perfect job of embalming of that body"; was assisted by a young man who "pumped the [embalming] fluid * * * aspirated the fluid into the body" while witness was "standing right there with him"; that "the young boy there is not an embalmer"; that "no one else was assisting" him in embalming the body in question; that witness "had been out of the practice of embalming until July, 1929, and this case was embalmed on May 18th, 1930." The acts of Griffin, when later called to the house, raised an inference of fact of negligence, in the first instance, in preparing the body.

There was therefore a reasonable inference to be drawn by the jury from the testimony of witnesses Gains and Griffin that if this embalmed body, within three hours, or several hours after its treatment, gave off offensive odors and purged, as indicated by other evidence, it was the result of and was proximately...