Dumouchelle v. Duke University, 8314SC924

• Decision Date: 03 July 1984
• Docket Number: No. 8314SC924,8314SC924
• Citation: 69 N.C.App. 471,317 S.E.2d 100
• Parties: , 18 Ed. Law Rep. 456 Mickey DUMOUCHELLE and Twyla Naragon v. DUKE UNIVERSITY.
• Court: North Carolina Court of Appeals

Page 100

317 S.E.2d 100

69 N.C.App. 471, 18 Ed. Law Rep. 456

Mickey DUMOUCHELLE and Twyla Naragon v. DUKE UNIVERSITY.

No. 8314SC924.

Court of Appeals of North Carolina.

July 3, 1984.

Richard N. Weintraub, Durham, for plaintiffs.

Newsom, Graham, Hedrick, Bryson, Kennon & Faison by E.C. Bryson, Jr. and David S. Kennett, Durham, for defendant.

WELLS, Judge.

A motion for summary judgment is properly granted under N.C.Gen.Stat. § 1A-1, Rule 56(c) of the Rules of Civil Procedure "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law." Lowe v. Bradford, 305 N.C. 366, 289 S.E.2d 363 (1982). Summary judgment is a somewhat drastic remedy and should be granted cautiously, especially in actions alleging negligence as a basis of recovery. McNair v. Boyette, 282 N.C. 230, 192 S.E.2d 457 (1972).

Plaintiffs contend that the trial judge erred in granting summary judgment for defendant because genuine issues of material fact remain and because defendant is not entitled to judgment as a matter of law.

In reviewing the merits of plaintiffs' appeal, we turn first to their claim for damages for mental anguish resulting from defendant's alleged negligent disposition of Mrs. Post's body. In order to establish actionable negligence, plaintiff must show (1) that there has been a failure to exercise proper care in the performance of some legal duty which defendant owed to plaintiff under the circumstances in which they were placed; and (2) that such negligent breach of duty was a proximate cause of plaintiffs' injury. See Hairston v. Alexander Tank & Equipment Co., 310 N.C. 227, 311 S.E.2d 559 (1984) and cases cited therein.

The person entitled to possession of a body may recover damages for mental suffering caused by negligent or intentional mishandling or mutilation of the body, Parker v. Quinn-McGowen Co., 262 N.C. 560, 138 S.E.2d 214 (1964). If such mishandling or mutilation is wilful, malicious or grossly negligent, punitive damages may also be recovered. Id. As a general rule, only the person entitled to possession and disposition of a body may maintain an action for mishandling or mutilation of the body. See Gurganious v. Simpson, 213 N.C. 613, 197 S.E. 163 (1938), Annot., 48 A.L.R.3d 261 (1973).

In the case before us, plaintiffs allege no mutilation of their mother's body by defendant, but only that the body was mishandled when defendant arranged for burial of Mrs. Post's body, instead of cremation, as requested by plaintiffs. Plaintiffs' argument rests upon the proposition that a decedent's nearest next-of-kin have final authority over funeral arrangements. As a general rule, the next-of-kin have the right to possess the body of a decedent for the purpose of burial. Parker v. Quinn-McGowen Co., supra. The issue of whether the wishes of the decedent concerning burial may prevail over those of the next-of-kin has never been directly addressed by the courts of our state. There is authority, however, for the proposition that a testamentary provision concerning burial should override contrary wishes of the decedent's next-of-kin. In Kyles v. R.R., 147 N.C. 394, 61 S.E. 278 (1908) our supreme court noted in dicta that "[t]he right to the possession of a dead body for the purpose of preservation and burial belongs, in the absence of any testamentary disposition, to the surviving husband or wife or next of kin ..." (Emphasis added). Although the foregoing language was dicta, it has been cited with approval by our supreme court in at least one later case, Floyd v. R.R., 167 N.C. 55, 83 S.E. 12 (1914) and we see no reason to adopt a contrary rule today. ¹ Parker v. Quinn-McGowen Co., supra, cited by plaintiffs as opposing authority, is inapposite as it does not deal directly with the issue whether the wishes of the next-of-kin prevail over a testamentary provision for disposition of the testator's body.

Plaintiffs also contend that the language of N.C.Gen.Stat. § 90-210.25(e)(2) (1981 & 1983 Cum.Supp.) expresses a legislative intent that the wishes of the next-of-kin concerning funeral arrangements must prevail. The statute provides, in relevant part: "No funeral service establishment shall accept a dead human body ... without having first made due inquiry as to the desires of the next of kin ... If any such kin be found, his or her authority and directions shall govern the disposal of the remains of such decedent...." The statute plaintiffs rely on does not resolve the issue before us, as it does not directly address the question of the effect of a testamentary provision for funeral arrangements.

Plaintiffs next contend that an executor has no authority to act prior to formal appointment by a probate court. Plaintiffs overlook N.C.Gen.Stat. § 28A-13-1 (1976) which provides, in pertinent part:

The duties and powers of a personal representative commence upon his appointment. The powers of a personal representative relate back to give acts by the person appointed which are beneficial to the estate occurring prior to appointment the same effect as those occurring thereafter. Prior to appointment, a person named executor in a will may carry out written instructions of the decedent relating to his body, funeral and burial arrangements....

Plaintiffs also argue that a testamentary provision for disposition of the testator's body can have no validity before the will is probated, but cite no authority for their position. Plaintiffs'...