Dunahoo v. Bess

Decision Date18 February 1941
CourtFlorida Supreme Court
PartiesDUNAHOO v. BESS.

Error to Circuit Court, Dade County; Ross Williams, Judge.

Action by J. T. Dunahoo against Kenneth B. Bess, doing business as the Bess Funeral Home, for breach of contract and for damages resulting from alleged careless embalming of the body of plaintiff's deceased wife. To review an adverse judgment the plaintiff brings error.

Affirmed.

COUNSEL

Murrell & Malone and Arnold Rubin, all of Miami, for plaintiff in error.

Hendricks & Hendricks, of Miami, for defendant in error.

OPINION

ADAMS Justice.

The plaintiff filed his declaration in two counts. The first is for breach of contract. The second is for simple negligence. Both counts allege in substance the death of plaintiff's wife; the delivery of the body to the defendant, a skilled and licensed embalmer, for embalming and shipment. That compensation was charged and received and the contract was breached in that the body was embalmed in a careless and negligent manner causing plaintiff mortification wherefore he asked damages for mental anguish, cost of embalming and transportation to point of shipment.

The lower court was of the opinion that the action would not lie and the case is here on writ of error to judgment on demurrer sustained to declaration.

For the decision of this case we feel called upon to consider two questions. First, does the surviving spouse have a property right in the corpose of the other sufficient to predicate an action for a trespass or wrong committed thereon? Second will the law of Florida sustain an action by the surviving spouse for mental anguish unconnected with physical injury under the stated facts?

The first question is easily answered in the affirmative. The right of the surviving spouse to have, protect and dispose of the remains of the other is a right recognized by law. Foley v. Phelps, 1 A.D. 551, 37 N.Y.S. 471; Larson v. Chase, 47 Minn. 307, 50 N.W. 238, 14 L.R.A. 85, 28 Am.St.Rep. 370; 15 Am.Juris., Dead Bodies, § 9; Travelers Ins. Co. v. Welch, 5 Cir., 82 F.2d 799; Beam v. Cleveland, C., C. & St. L. Ry. Co., 97 Ill.App. 24; Deavors v. Southern Express Co., 200 Ala. 372, 76 So. 288; 17 C.J. 1139; 8 R.C.L. 684; Southern Life & Health Ins. Co v. Morgan, 21 Ala.App. 5, 105 So. 161; England v. Central Pocahontas Coal Co., 86 W.Va. 575, 104 S.E. 46, 17 C.J. 1139, 8 R.C.L. 684; Patrick v. Employers Mutual Liability Ins. Co., 233 Mo.App. 251, 118 S.W.2d 116; Morrow v. Cline, 211 N.C. 254, 190 S.E. 207; Spiegel v. Evergreen Cemetery Co., 117 N.J.L. 90, 186 A. 585; Kyles v. Southern R. Co., 147 N.C. 394, 61 S.E. 278, 16 L.R.A., N.S., 405.

The second question is whether the law of Florida will sustain an action for mental anguish unconnected with physical injury under the stated facts.

If we are to uphold this right of action we must base it upon some authority of law. We are without the power to sustain a right of action on our personal idea of the right or wrong of the matter in controversy. We look first to the Constitution and statutes of our State and find no authority there to rest the action. We next turn to the unwritten or common law. Section 87, C.G.L.1927:

'87. (71.) Common law and certain statutes declared in force.--The common and statute laws of England which are of a general and not a local nature, with the exception hereinafter mentioned, down to the fourth day of July, 1776, are hereby declared to be of force in this State: Provided, the said statutes and common law be not inconsistent with the Constitution and laws of the United States and the acts of the Legislature of this State.'

The plaintiff bases his right of action on a breach of contractual duty and ordinary or simple negligence in the discharge of that duty and as a proximate result thereof claims he has suffered financial loss and mental anguish. His contention is supported by a well recognized line of authority. Larson v. Chase, 47 Minn. 307, 50 N.W. 238, 14 L.R.A. 85, 28 Am.St.Rep. 370; Birmingham Transfer & Traffic Co. v. Still, 7 Ala.App. 556, 61 So. 611; Loy v. Reid, 11 Ala.App. 231, 65 So. 855; Brown Funeral Homes & Ins. Co. v. Baughn, 226 Ala. 661, 148 So. 154; So Relle v. Western Union Telegraph Co., 55 Tex. 308, 40 Am.Rep. 805.

This line of authority has crystallized into what is known as the Texas doctrine or mental anguish doctrine because it originated there. Western Union Tel. Co. v. Moran, 52 Tex.Civ.App. 117, 113 S.W. 625. Some of the courts adopting that view go upon the theory that the common law in that regard is abrogated or is inapplicable to such conditions. Others say the common law is alive and elastic to this changed condition of a progressive American life. Mentzer v. Western Union, 93 Iowa 752, 62 N.W. 1, 28 L.R.A. 72, 57 Am.St.Rep. 294.

We have held there is a property right in the corpse and Section 4 of our Declaration of Rights guarantees a right of action for any injury done to property, yet that part of our Constitution was in force when this Court decided International Ocean Telegraph Co. v. Saunders, 32 Fla. 434, 14 So. 148, 21 L.R.A. 810. This Court in that opinion expressly repudiated the so called Texas rule for the reason that the damages claimed were too remote and speculative. We are impressed with the reason and logic of the well reasoned opinion in that case. There is reason for caution inasmuch as some...

To continue reading

Request your trial
27 cases
  • Brown v. Matthews Mortuary, Inc.
    • United States
    • Idaho Supreme Court
    • November 15, 1990
    ...Liability for Withholding Corpse, 48 A.L.R.3d 240, p. 247 (1973). But see Chisum v. Behrens, 283 N.W.2d 235 (S.D.1979); Dunaboo v. Bess, 146 Fla. 182, 200 So. 541 (1941); Daniels v. Adkins Protective Service, Inc., 247 So.2d 710 (Miss.1971); Corrigal v. Ball & Dodd Funeral Home, Inc., 89 Wa......
  • Willis v. Gami Golden Glades, LLC.
    • United States
    • Florida Supreme Court
    • October 18, 2007
    ...case that the Macurda Court referred to and relied on when restating the abstract rule applicable in non-impact cases, Dunahoo v. Bess, 146 Fla. 182, 200 So. 541 (1941), undoubtedly did not involve an impact as it involved a claim for damages resulting from the alleged careless embalming of......
  • State v. Powell
    • United States
    • Florida Supreme Court
    • October 30, 1986
    ...All authorities generally agree that the next of kin have no property right in the remains of a decedent. Although, in Dunahoo v. Bess, 146 Fla. 182, 200 So. 541 (1941), this Court held that a surviving husband had a "property right" in his wife's body which would sustain a claim for neglig......
  • Williams v. City of Minneola
    • United States
    • Florida District Court of Appeals
    • January 31, 1991
    ...its proper burial. See, e.g., Restatement (Second) of Torts § 868; Kirksey v. Jernigan, 45 So.2d 188 (Fla.1950); Dunahoo v. Bess, 146 Fla. 182, 200 So. 541 (1941); Halpin v. Kraeer Funeral Homes, Inc., 547 So.2d 973 (Fla. 4th DCA 1989), rev. den., 557 So.2d 35 (Fla.1990); Smith v. Telophase......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT