Crenshaw v. O'Connell

• Decision Date: 06 May 1941
• Citation: 150 S.W.2d 489,235 Mo.App. 1085
• Parties: JO MADELINE CRENSHAW, (PLAINTIFF) RESPONDENT, v. DR. JOHN O'CONNELL, (DEFENDENT) APPELLANT
• Court: Missouri Court of Appeals

150 S.W.2d 489

235 Mo.App. 1085

JO MADELINE CRENSHAW, (PLAINTIFF) RESPONDENT, v. DR. JOHN O'CONNELL, (DEFENDENT) APPELLANT

Court of Appeals of Missouri, St. Louis

May 6, 1941

Appeal from Circuit Court of City of St. Louis.--Hon. William K Koerner, Judge.

JUDGMENT REVERSED WITH DIRECTIONS TO ENTER JUDGMENT FOR $ 1500 IF PLAINTIFF SHALL ENTER A REMITTITUR OF $ 3500 WITHIN TEN DAYS OTHERWISE JUDGMENT REVERSED AND REMANDED FOR A NEW TRIAL.

Hay & Flanagan for respondent.

(1) Plaintiff, as the widow, was entitled to bury the deceased in the condition in which he died. 15 Amer. Juris. 847; Litteral v. Litteral, 131 Mo.App. 306, 11 S.W. 872 873; Wilson v. St. L.-S. F. Railroad, 160 Mo.App 649, 142 S.W. 775, 778; Larson v. Chase, 47 Minn. 307, 50 N.W. 238, 14 L.R.A. 85, 28 Am. St. Rep. 370. (2) The next of kin has a right of action for the rough treatment of a body. Wilson v. St. L.-S. F. Railroad, 160 Mo.App. 649, 142 S.W. 775; Wall v. St. L.-S. F. Railroad, 184 Mo.App. 127, 168 S.W. 257; Maloney v. Boatmen's Bank, 288 Mo. 435, 232 S.W. 133, l. c. 138; Patrick v. Employers Mutual Liability Ins. Co., 118 S.W.2d 116. (3) The defendant, as coroner of St. Louis County, holds an office created by statute and his powers and duties are specifically defined by statute and not by common law. Secs. 9046, 9047, 11608, 11612, 11631, 11633, 11634, 11639, R. S. Mo. 1929; 13 Am. Jur. 106, 110; Queatham v. Modern Woodmen, 148 Mo.App. 33, 47, 48, 127 S.W. 651; O'Donnell v. Wells, 21 S.W.2d 762, 765. (4) Even if this case were decided according to common law, the verdict of the jury should be upheld. 13 Am. Jur., 106, 110. (5) There is nothing inherent in the office of coroner that would give him a roving commission to have bodies dissected for scientific or other purposes. Patrick v. Employers Mutual Liability Ins. Co., 118 S.W.2d 116. (6) The office of coroner is not that as known at common law, but is an officer whose power must be traced to some express provision of the statute or implied from such express provision. Fusan v. Commonwealth (1931 Ky.), 44 S.W.2d 578; Clark County v. Harris (Ark. 1916), 186 S.W. 290; Sandy v. Board of Commissioners (1909 Ind.), 171 Ind. 674, 87 N.E. 151; Albaugh-Dover Co. v. Industrial Board of Ill. (1917), 278 Ill. 179, 115 N.E. 834. (7) In Missouri a coroner is not a judicial officer regardless of the law in other jurisdictions. Queatham v. Modern Woodmen, 148 Mo.App. 33, 47; State ex rel. Patterson v. Marshall, 82 Mo. 484. (8) Assuming, without conceding, that a coroner acts in a judicial capacity, still there is nothing judicial about holding an autopsy. Patrick v. Employers Mutual Liability Ins. Co., 118 S.W.2d 123; Sandy v. Board of Commissioners, 171 Ind. 674, 87 N.E. 131; Palenzka v. Bruning, 98 Ill.App. 644; 13 Am. Jur. 109. (9) A coroner, physician, and all participating in unlawful autopsy are liable, and he cannot hide behind his title. Strupe v. Liberty Mutual Ins. Co., 243 Ky. 15, 47 S.W. 1004; Woods v. Graham, 140 Minn. 16, 167 N.W. 113, L.R.A. 1918D, 403; Gurgamons v. Simpson (N. C.), 197 S.E. 163; 46 C. J. 1043; Moffit v. Davis, 205 N.C. 565, 172 S.E. 317; City v. Baughman, 50 S.W. 372, 210 N.W. 348, 48 A. L. R. 1205, 52 A. L. R. 1447. (10) It was not necessary for the defendant to perform an autopsy in order to issue a death certificate. O'Donnell v. Wells, 21 S.W.2d 762, 765; Patrick v. Employers Mutual Liability Ins. Co., 118 S.W.2d 116; Sandy v. Board of Commissioners, 171 Ind. 674, 87 N.E. 131, 132; Queatham v. Modern Woodmen, 148 Mo.App. 33, 47; Sections 9046, 9047, 11634, Revised Statutes of Missouri, 1929. (11) The damages are not excessive. Patrick v. Employers Mutual Liability Ins. Co., 118 S.W.2d 116; Streipe v. Liberty Mutual Ins. Co. (Ky.), 47 S.W.2d 1004; State ex rel. v. Shain, 108 S.W.2d 351; Randolph v. Kleins, 330 Mo. 343, 49 S.W.2d 112; Newport v. Montgomery Ward & Co., 344 Mo. 646, 127 S.W.2d 687; Irons v. American Railway Express, 318 Mo. 318, 300 S.W. 283; Coty v. Baughman, 210 N.W. 348, 48 A. L. R. 1205; Larson v. Charles, 47 Minn. 307, 14 L.R.A. 85; Woods v. Graham, 140 Minn. 16, L.R.A. 1918 D, 403; Wall v. Frisco Railroad, 184 Mo.App. 127.

Herbert W. Ziercher for appellant.

(1) The evidence did not make a submissible case for the consideration of the jury. (a) At common law, the judicial power of a coroner is to inquire into the death of a man, and the duty of ordering an autopsy is incidental to that power. Giles v. Brown, 1 Mills C. Rep. 112, 113; Allegheny County v. Watts, 3 Pa. 462; Commonwealth v. Harman, 4 Pa. 269; County of North Hampton v. Innes, 26 Pa. 156, 157; Miller v. Cambria County, 29 Pa.Super. 166, 168. (b) The powers and duties of a coroner under Missouri statutory law are declaratory of and supplementary to the common law. R. S. Mo. 1929, secs. 11608, 11612, 11621, 11631, 11633, 11634, 11638, 11639. (c) A coroner, in the performance of his duty to inquire into the cause of death, acts in a judicial capacity. 7 Am. & E. Enc. of Law (2 Ed.), 602, 603; Boisliniere v. Board of County Commissioners, 32 Mo. 375, 378; Queathan v. Modern Woodmen of America, 127 S.W. 651, 655. (d) A judicial officer, such as a coroner, may not be attacked for acts done within the limits of his discretion. Garnett v. Ferrand, 6 Barn. & C. 611 (K. B. 1827), 625. (e) Where a death occurs under suspicious circumstances, the holding of an inquest and autopsy are within the discretion of the coroner as a judicial officer, and he cannot be held liable therefor. 8 R. C. L. 695; 7 Am. & E. Enc. of Law (2 Ed.), page 608; Young v. College of Physicians & Surgeons, 81 Md. 358, 31 L.R.A. 540; Darcy v. Presbyterian Hospital, 202 N.Y. 259, 95 N.E. 695; St. Francis County v. Cummings, 55 Ark. 419; State of New York v. Fitzgerald, 105 N.Y. 146; Hassard v. Lehane, 135 N.Y.S. 711; Palenske v. Bruning, 98 Ill.App. 644; Patrick v. Employers Mutual, 118 S.W.2d 116. (2d) The coroner was justified in ordering an autopsy so as to be able to sign a death certificate. R. S. Mo. 1929, secs. 9046 and 9047; Rushing v. Medical College of Georgia, 62 S.E. 563; Meyers v. Duddenhauser, 97 S.W. 1049; Cook v. Walley, 27 P. 950, 952; Young v. College of Physicians & Surgeons, supra.

BENNICK, C. Hughes, P. J., and McCullen and Anderson, JJ., concur.

OPINION

BENNICK, C.

--This is an action by plaintiff, the widow of one Oliver Albert Crenshaw, to recover the damages sustained on account of the action of defendant, Dr. John O'Connell, the coroner of St. Louis County, in having an alleged unauthorized and unlawful autopsy performed upon the body of her husband, who died in St. Louis County on January 14, 1939.

Tried to a jury in the Circuit Court of the City of St. Louis, a verdict was returned in favor of plaintiff, and against defendant, for $ 5000 actual damages and $ 5000 punitive damages. As a condition to the overruling of defendant's motion for a new trial, the court ordered a remittitur of the whole amount of punitive damages awarded; and following plaintiff's entry of such remittitur, the motion for a new trial was overruled and judgment entered in plaintiff's favor for $ 5000 actual damages and costs, from which judgment defendant has perfected his appeal to this court in the usual course.

The deceased, at the time of his death, was in the employ of the Donnelly Company, the manufacturer of a lotion product, which had space in a building located at 6239 St. Louis Avenue, in Wellston, Missouri.

Plaintiff last saw her husband alive at 8:30 o'clock in the morning of the day of his death, when he took her down town to her place of employment with Stix, Baer & Fuller Company, a mercantile establishment.

The deceased then reported for his own work, and gave no indication of anything unusual in his condition until about 11:30 o'clock in the morning, when two men, the one, Hayden, a resident in the neighborhood, and the other, Wood, an employee of a concern which jointly occupied the building with the deceased's employer, found the deceased lying on the sidewalk in front of the building, where he had fallen momentarily before.

Ascertaining that the pulse was still beating, Wood and Hayden placed the deceased in an automobile and drove to the office of Dr. Hicks, an osteopath located in the immediate vicinity, who pronounced the deceased to be dead, and then notified defendant, the coroner, who in turn instructed an undertaker to bring the body to the morgue in the St. Louis County Hospital.

Wood had had some slight acquaintance with the deceased, and although both he and Hayden had given their names to the ambulance driver who came out for the body in response to defendant's direction, no inquiry was ever made of either of them on behalf of the coroner's office with respect to the circumstances under which the deceased's body had been found.

Indeed, the only investigation that defendant purports to have made was in connection with his communication with Dr. Hicks who advised him that the deceased had reportedly fallen over dead while working with two men whose names and addresses were given, after which, without himself examining the body, without attempting to contact the relatives of the deceased although his name and home address appeared upon two envelopes found upon his person, and without ordering an inquest to be held, he directed an autopsy to be performed, according to his usual custom in such matters, by the Department of Pathology in the Medical School of Washington University.

Such autopsy was thereafter performed between the hours of three and six o'clock that afternoon by Dr. Mantz of the medical school in the presence of a group of students, and as a result it was found that the deceased had died of a cerebral hemorrhage, which fact defendant then certified as the cause of death in...