Darcy v. Presbyterian Hosp. in City of New York

• Decision Date: 30 May 1911
• Citation: 95 N.E. 695,202 N.Y. 259
• Parties: DARCY v. PRESBYTERIAN HOSPITAL IN CITY OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

202 N.Y. 259

95 N.E. 695

DARCY

v.PRESBYTERIAN HOSPITAL IN CITY OF NEW YORK.

Court of Appeals of New York.

May 30, 1911.

Appeal from Suprme Court, Appellate Division, First Department .

Action by Jane Darcy against the Presbyterian Hospital in the City of New York. From a judgment of the Appellate Division (137 App. Div. 924,122 N. Y. Supp. 1126) affirming a judgment of the trial court dismissing her complaint, plaintiff appeals. Reversed and remanded.Carlisle Norwood, for appellant.

Robert Thorne, for respondent.

HAIGHT, J.

This action was brought to recover damages for the interference and prevention of the plaintiff of her right to receive the body of her deceased son from the defendant, and for wounded feelings and mental distress suffered by reason of the mutilation and dissection of his body. Upon the trial the complaint was dismissed at the opening of counsel on the ground that it did not state sufficient facts to constitute a cause of action.

The complaint alleges, in substance, that she was the mother of John Darcy, who died at the defendant's hospital on the 31st day of October, 1906, at the age of 20 years, unmarried and without children; that his father had died several years before, leaving the plaintiff, his mother, as his next of kin and entitled to the possession of his body for burial. The decedent was taken to the defendant's hospital on the 24th day of September, 1906, by the plaintiff, to receive treatment for ailments with which he was then afflicted, she agreeing with the agent of the hospital to pay $1 per day for such treatment; that immediately after the decease of her son the plaintiff asked the superintendent of the hospital for his body, and sent an undertaker for the same, for the purpose of interment, but the defendant refused and neglected to then deliver the body to her; that the superintendent and one Robert Anderson Cooke, a physician in charge of the hospital, asked for her consent to make an autopsy, which she expressly refused to permit, and thereupon Cooke, with the cognizance and approval of the defendant, caused a coroner of the city of New York to send his physician to the hospital, and there, in the presence of Cooke and several other surgeons, performed an autopsy on the body of the decedent, thus depriving her of the right to the possession of the body for burial; greatly wounding her feelings and causing her great mental distress, anguish, etc.

[1] The first question presented for determination is as to whether a cause of action for damages exists. Under the allegations of the complaint, the mother of the decedent was his nearest and only next of kin, and consequently was the person who was entitled to his body for burial. It must be conceded that in some jurisdictions it has been held that since there can be no property in a dead body a personal representative of decedent cannot maintain an action for damages for the willful or negligent mutilation of the body, although he may sue for injury to the wearing apparel. 13 Cyc. 281, citing Griffith v. Charlotte, 23 S. C. 25, 55 Am. Rep. 1. This was doubtless the rule under the ecclesiastical law of England, as appears from the remarks of Lord Coke. 3 Inst. 203; 2 Bl. Com. 429.

While we adopted the common law in organizing our state governments, we have never considered ourselves bound by the ecclesiastical decisions, many of which were inapplicable to our form of government. But even in England, in more recent periods, the courts have recognized the right of possession of a dead body in those nearest in relation for the purpose of burial or other lawful disposition of it. Queens v. Fox, 2 Q. B. 246. The most elaborate consideration of the question in the courts of this country appears in the case of Larson v. Chase, 47 Minn. 307, 50 N. W. 238,14 L. R. A. 85, 28 Am. St. Rep. 370, in which, after an examination of the authorities both in this county and in England, the conclusion is country and in England, the conclusion is by the executor or administrator upon the theory of any property right in a decedent's body, the right to the possession of a dead body for the purpose of preservation and burial belongs to the surviving husband or wife or next of kin, in the absence of any testamentary disposition; and this right the law will recognize and protect from any unlawful mutilation of remains by awarding damages for injury to the feelings and mental suffering resulting from the wrongful acts, although no pecuniary damage is alleged or proved. This case has been followed in Massachusetts in the case of Burney v. Children's Hospital, 169 Mass. 57, 47 N. E. 401,38 L. R. A. 413, 61 Am. St. Rep. 273, in which is was held that the father of a child, who is its natural guardian, has a right, in case the child dies, to the possession of its body for burial, and may maintain an action for an unauthorized autopsy performed upon the body of the child-citing Meagher v. Driscoll, 99 Mass. 281, 96 Am. Dec. 759, and numerous other cases therein referred to. In 4 American Law Times, 127, it was held in Ohio that a husband might recover damages for the...