Deavors v. Southern Express Co.

• Decision Date: 21 June 1917
• Docket Number: 6 Div. 355
• Citation: 200 Ala. 372,76 So. 288
• Parties: DEAVORS v. SOUTHERN EXPRESS CO.
• Court: Alabama Supreme Court

76 So. 288

200 Ala. 372

DEAVORS v. SOUTHERN EXPRESS CO.

6 Div. 355

Supreme Court of Alabama

June 21, 1917

Appeal from Circuit Court, Walker County; J.J. Curtis, Judge.

Action by Alta Deavors against the Southern Express Company. The court directed a verdict for defendant, and from the judgment entered thereon, plaintiff appeals. Affirmed.

Leith &amp Gunn, of Jasper, for appellant.

Bankhead & Bankhead, of Jasper, for appellee.

MAYFIELD J.

Appellant sued appellee as a common carrier, to recover damages on account of negligence in the carrying or delivering of the corpse of her brother, which was consigned to her at Carbon Hill, Ala. The corpse was shipped from Chanute, Kan. The receiving carrier was the Wells Fargo Express Company, which carried the corpse to Springfield, Mo., and there delivered it to appellee, and appellee carrier delivered the same to consignee or her agent at Carbon Hill. Whether or not appellant, by herself or an agent, made any contract with either the receiving or the delivering carrier, does not appear; but it does appear that the shipment was consigned to her. The charges for the shipment, together with the costs of casket, shrouding, etc., were paid by a brother of appellant though it appears that appellant agreed with her brother and mother to pay a part of the charges. Shipment was made C.O.D., including all the charges above set out. There was nothing to show that there were any excess charges or overcharges. The alleged negligence consisted in allowing the coffin and shrouding to get wet, and thereby letting the corpse get wet.

Appellee seems to have had no night agent at Carbon Hill, and the train which carried the corpse to that place arrived there at about 4 o'clock a.m. There being no one there to receive it, the coffin containing the corpse was placed on a truck and wheeled under a shelter or shed; but it was there allowed to get wet from rain blowing in under the shelter or leaking through the top thereof. The evidence was in dispute whether coffin, shrouding, and corpse was wet, and, if it was whether or not it was wet when received by the consignee or her brother. The deceased was a young man not more than 21 years of age, and unmarried. He left a mother, three or four brothers, and three or four sisters, one of whom is appellant. The trial was had on the general issue, and the court, after the evidence was closed, directed a verdict for defendant, and from the judgment entered thereon plaintiff prosecutes this appeal.

Opinion.

The law as to the rights and remedies of the living as to the bodies of their dead, is not as certain as death itself. The Supreme Court of Georgia, per Lumpkin, J., has thus spoken on the subject:

"A corpse in some respects is the strangest thing on earth. A man who but yesterday breathed, and thought, and walked among us has passed away. Something has gone. The body is left still and cold, and is all that is visible to mortal eye of the man we knew. Around it cling love and memory. Beyond it may reach hope. It must be laid away. And the law--that rule of action which touches all human things--must touch also this thing of death. It is not surprising that the law relating to this mystery of what death leaves behind cannot be precisely brought within the letter of all the rules regarding corn, lumber, and pig iron. And yet the body must be buried or disposed of. If buried, it must be carried to the place of burial. And the law, in its all-sufficiency, must furnish some rule, by legislative enactment or analogy, or based on some sound legal principle, by which to determine between the living questions of the disposition of the dead, and the rights surrounding their bodies. In doing this, the courts will not close their eyes to the customs and necessities of civilization in dealing with the dead, and those sentiments connected with decently disposing of the remains of the departed which furnish one ground of difference between men and brutes." L. & N.R.R. Co. v. Wilson, 123 Ga. 63, 64, 51 S.E. 25, 3 Ann.Cas. 128.

Lord Coke said that the burial of the dead is of ecclesiastical cognizance; that the heir or personal representative may have an action as for the shroud, coffin, monument, etc., yet he has none as for the corpse, or its ashes. While it has likewise been said by American courts and text-writers that 'dead bodies are not the subject of property, and that after burial the body becomes a part of the earth to which it is committed, yet all courts recognize quasi property rights in and to the corpse, for the purposes of decent and proper burial, the protection of the ashes, and the removal thereof in proper cases. The courts, including this one, also recognize and enforce the rights of next of kin, and of near relatives, such as father, mother, brothers, sisters, husband, wife, parent, or child, as to the obsequies and burial of their 'dead.

Actions for damages as for mental pain and anguish have been allowed for negligence in the sending and delivering of telegraphic messages concerning the death of such near relatives, whereby the living, bereaved relative was prevented from being present at the funeral and burial, and also against common carriers, in carrying and delivering 'dead bodies. Whatever the law of England once was, it is now well-settled law in this state that there is at least a quasi legal right in, to, or concerning dead bodies, which the courts will recognize and protect by proper action. There is, however, a well-recognized distinction between the rights of the living as to the corpse of their dead before burial, and such rights thereafter--that is, after the body becomes a part of the earth in which it is buried. With this latter class of rights we are not concerned and are not now dealing; those rights were dealt with in the case of Bessemer Land Co. v. Jenkins, 111 Ala. 135, 18 So. 565, 56 Am.St.Rep. 26. The rights we are now dealing with were recognized in the cases of Southern Railway Co. v. Renes, 192 Ala. 620, 68 So. 987; Birmingham Transfer & Traf. Co. v. Still, 7 Ala.App. 556, 61 So. 611. Similar rights as to damages for mental pain and anguish have been recognized in many cases against telegraph companies, involving negligence in the handling of messages relating to deaths, burials, and funerals of near relatives. See Merrill's Case, 144 Ala. 618, 39 So. 121, 113 Am.St.Rep. 66; Krichbaum's Case, 145 La. 409. 41 So. 16; Long's Case, 148 Ala. 202, 41 So. 965; Westmoreland's Case, 150 Ala. 654, 43 So. 790; Beal's Case, 159 Ala. 249, 48 So. 676; In Still's Case, 7 Ala.App. 563, 61 So. 613, the Court of Appeals quoted from the Kentucky court the following:

"The most tender affections of the human heart cluster about the body of one's dead child. A man may recover for any injury or indignity done the body, and it would be a reproach to the law if physical injuries might be recovered for, and not those incorporeal injuries which would cause much greater suffering and humiliation." Douglas v. Stokes, 149 Ky. 506, 509, 149 S.W. 849, 850, 42 L.R.A. (N.S.) 386, Ann.Cas. 1914B, 374.

In this Kentucky case it was held that the parent has the right to recover damages for mental pain and suffering caused by the unauthorized use of a photograph of plaintiff's nude deformed minor children, as constituting a violation of the parent's right of privacy of the bodies of his dead children. The opinion in Still's Case, discussing the same subject, says:

"Although, strictly speaking, there is no right of property in a dead body, the right of a parent, who has the custody of the remains of his dead child for burial, to recover for the injury to his feelings by any indignity purposely or wrongfully perpetrated upon the corpse of the child has been directly or by proper analogy recognized in many well-considered cases"--citing many authorities.

Also that:

"In an action of quare clausum fregit to recover damages for the unlawful disturbance of the body of a child, our Supreme Court has held that the parent can recover damages for injury to the feelings occasioned thereby. Bessemer Land & Improvement Co. v. Jenkins, 111 Ala. 135, 18 So. 565, 56 Am.St.Rep. 26." 7 Ala.App. 564, 61 So. 614.

And the same is undoubtedly true as to the corpse of one's brother or sister.

"In the case of Gatzow v. Buening, 106 Wis. 1, 81 N.W. 1003, 49 L.R.A. 475, 80 Am.St.Rep. 1, *** it was held that exemplary damages might be recovered for depriving the plaintiff of the use of a hearse and stopping it as he was burying the body of the child, although it was held in that case that as there was no actual damage or physical injury there could be no recovery for mental suffering." 7 Ala.App. 566, 61 So. 614.

In Brady's Case (against Alabama City, G. & A. Co.), 160 Ala. 615, 620, 49 So. 351, 353, under conditions therein set forth, this court held that a widow might maintain an action as to the transportation of the corpse of her husband; the court saying:

"We have no doubt that, in a case of this kind, the widow, upon proof of negligence or of breach of duty on the part of the defendant, might recover for mental anguish, if any, suffered on account of the delay or the failure in the transportation of the remains of her husband. L. & N.R.R. Co. v. Hull, 113 Ky. 561, 68 S.W. 433, 57 L.R.A. 771."

It therefore follows that a brother or sister may, in a proper case, recover damages as for mental pain and anguish, against a common carrier, the result of negligence or of the breach of a contract, in or about the carrying or delivery of the corpse of the deceased; but of course the case must be brought under circumstances and facts which impose liability on the one hand, and confer rights on the other, as declared and recognized in the cases above cited. The mere fact that...