Doxtator v. Chicago & W.M. Ry. Co.
| Decision Date | 11 July 1899 |
| Citation | 79 N.W. 922,120 Mich. 596 |
| Parties | DOXTATOR v. CHICAGO & W. M. RY. CO. |
| Court | Michigan Supreme Court |
Error to superior court of Grand Rapids; Edwin A. Burlingame Judge.
Action by Fanny E. Doxtator against the Chicago & West Michigan Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.
William Alden Smith, for appellant.
McGarry & Belden, for appellee.
This case presents a question which has never had the attention of this court, and one which, in some of its aspects, has not been considered by any other court of last resort, so far as we are advised. The plaintiff sues to recover damages on account of having been deprived of the right to give the remains of her deceased husband a Christian burial, and alleges that she was deprived of this right by the wrongful act of the defendant. At the common law there was said to be no property in a dead body, and in one sense this may still be deemed an accurate technical statement; but it has been held in a number of well-considered American cases that the one whose duty it is to care for the body of the deceased is entitled to possession of the body, as it is when death comes, and that it is an actionable wrong for another to interfere with that right by withholding the body or mutilating it in any way. Larson v. Chase, 47 Minn 307, 50 N.W. 238; Foley v. Phelps (Sup.) 37 N.Y.S 471; Burney v. Hospital (Mass.) 47 N.E. 401; 8
Am. & Eng. Enc. Law (2d Ed.) 834. This right is conceded. Another question, not discussed in the original brief of appellant, although adverted to in his supplemental brief, may be whether, under the facts as claimed by plaintiff, the right of action exists in the widow for the destruction of fragments amputated from the body of her husband during his lifetime when the evidence discloses the fact that such destruction occurred during the lifetime of the husband. As this question was not at all discussed in the original brief of counsel, we pass it by, and direct our attention to the points raised; and for the understanding of these points a brief statement of the facts is essential: On the morning of June 2, 1897, Thomas A Doxtator was working as a switchman with a gang of men in charge of John Dozeman, foreman of the West Side yards of the Chicago & West Michigan Railway Company. At about 6:30 a. m Doxtator was run over by the cars and fatally injured. His injuries were extensive. His right leg was crushed from the ankle to the knee. The bone protruded, and the foot hung only by the muscular attachments. The left leg was crushed from the lower third up to about the middle third of the thigh, and the pelvis bone was also broken. Foreman Dozeman was the first to reach Mr. Doxtator, and he called witness Strickland to hold his head while Dozeman called the doctor and the ambulance. Dozeman called Dr. G. K. Johnson, who was at that time chief surgeon for the Chicago & West Michigan Railway Company. He also notified police headquarters to send the ambulance at once, and then notified the company's agent at the Allen street freight house (Mr. Hatch), who also telephoned to the doctor. Doxtator requested that he should not be taken home, as the shock would kill his wife. He requested to be taken to a Catholic hospital. One witness testified that witness Strickland promised that he should be taken to a Catholic hospital, without naming which one. Strickland, however, testified that he did not remember whether Doxtator so requested or not. The custom of the railway company, as stated by Dr. Johnson, is to take the patient to whichever hospital he prefers. The ambulance arrived about 25 minutes after the accident had occurred. It was in charge of Patrolman John Scoby. While in the ambulance, Doxtator requested to be taken to a Catholic hospital. Patrolman Scoby thought it was nearer to Butterworth Hospital, and so took him to that place, accompanied by Switchman Strickland. Neither Doxtator nor Strickland raised any objection to his so doing. They reached the hospital at 5 minutes to 7 in the morning. The hospital force called Dr. Lupinski, who, on the arrival of Dr. Wooster, turned the case over to the latter. Dr. Wooster had exclusive control of the case, and was working under a general employment by the Chicago & West Michigan Railway Company. With the assistance of Dr. Lupinski and of Dr. Smith, the house physician of the hospital, he amputated the legs at about 8 o'clock in the morning. From the nature of the case, the doctors knew that the...
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