Burney v. Children's Hospital in Boston

• Decision Date: 16 June 1897
• Citation: 47 N.E. 401,169 Mass. 57
• Parties: BURNEY v. CHILDREN'S HOSPITAL IN BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

169 Mass. 57

47 N.E. 401

BURNEY v. CHILDREN'S HOSPITAL IN BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

June 16, 1897

COUNSEL

Ralph

W. Gloag, for appellant.

Hutchins & Wheeler, for appellee.

OPINION

LATHROP J.

The demurrer in this case is a general one, and the question is whether the father of a child, who is its natural guardian and who has intrusted the child to a hospital for treatment can maintain an action against the hospital for an autopsy performed on the dead body of his child without his consent. The sole contention of the learned counsel for the defendant in support of the demurrer is that the action cannot be maintained because there is no right of property in a dead body. 2 Bl.Comm. 429; 3 Co.Inst. 202. Even in England, before a dead body is buried, while there is no right of property in it there is a right of possession for the purposes of burial or other lawful disposition of it. Thus, in Reg. v. Fox, 2 Q.B. 246, where a prisoner in jail on execution died, and the jailer refused to deliver the body to the executors of the deceased unless they would satisfy certain claims made against him, the court of queen's bench issued a mandamus peremptory in the first instance, commanding that the body should be delivered up to the executors. So, in Williams v. Williams, 20 Ch.Div. 659, while it was held that there is no property in a dead body, it was also held that the executors had a right to the possession of the body, and that it was their duty to bury it.

In this commonwealth the precise question before us has not been passed upon. It is, however, apparent from the decisions that a right of possession is recognized, which is vested in the husband or wife or next of kin, and not in the executors. In Lakin v. Ames, 10 Cush. 198, the defendants were sued in trespass for tearing down a horseshed. The defense was that the shed was on the public common of the town, and was erected in front of a tomb lawfully on the burying ground, adjoining the common, so as to obstruct the entrance thereto, and that the first-named defendant, having the legal right to open the tomb, and deposit the body of his deceased brother therein, peaceably removed the shed, doing no unnecessary damage. Liberty given by the town to a man to build a tomb was held to be a grant to the man and his heirs. The first-named defendant had no legal interest in the tomb nor had he express authority from his mother, one of the heirs of the former owner. But it was said by the court: "The law will imply a license from the nature and exigencies of the case, the relation of the parties, and the well-established usages of a civilized and Christian community." In Durell v. Hayward, 9 Gray, 248, it was held that a husband who had buried his wife in a public burying ground was not liable as a trespasser for removing a grave stone, since placed at her grave by her mother, without injuring the stone, and for the purpose of substituting another. It was said by Mr. Justice Bigelow: "The plaintiff had no right to erect a stone at the grave of the defendant's wife without his knowledge or consent. The indisputable and paramount right, as well as duty, of a husband, to dispose of the body of his deceased wife by a decent sepulcher, in a suitable place, carries with it the right of placing over the spot of burial a proper monument or memorial, in accordance with the well-known and long-established usage of the community." In Meagher v. Driscoll, 99 Mass. 281, it was held that, if the plaintiff owns the lot in which the body of his child is buried, he may maintain an action of tort in the nature of trespass quare clausum fregit for the unlawful removal of the body; and, in measuring damages, the jury may take into consideration the injury to the plaintiff's feelings, if it appears that the defendant acted in willful disregard or careless ignorance of the plaintiff's rights. In Weld v. Walker, 130 Mass. 422, the right of a husband to bury his wife was again recognized, and it was held that if he had not freely consented to the burial of her body in a lot of land owned by another person, with the intention or understanding that it should be her final resting place, a court of equity would permit him, after such burial, to remove her body, coffin, and tombstones to his own land. In Driscoll v. Nichols, 5 Gray, 488, cited by the defendant, the plaintiff was a stranger in...