Feeley v. Andrews

• Decision Date: 02 April 1906
• Citation: 77 N.E. 766,191 Mass. 313
• Parties: FEELEY et al. v. ANDREWS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

191 Mass. 313

77 N.E. 766

FEELEY et al. v. ANDREWS.

Supreme Judicial Court of Massachusetts, Middlesex.

April 2, 1906

Action of tort. Plaintiffs are the heirs of one Peter Feeley deceased, the defendant is the superintendent of a private cemetery owned and managed by the Roman Catholic Archbishop of Boston a corporation sole. The declaration is as follows:

'First count: And the plaintiffs say that they are and were the owners and proprietors of a certain lot situated in the Mount Auburn Cemetery, so called; and that the plaintiffs had made a grave in said lot and had placed therein a casket containing the dead body of the plaintiff's mother. And the plaintiffs say that on or about October 15 1904, the said defendant unlawfully, with force and arms broke and entered the plaintiffs' close, and dug up the earth, and opened the said grave, and struck, maltreated, and defaced the said casket, and the dead body of the plaintiffs' mother, then and there being as aforesaid; to the great damage of the said plaintiffs, and thereby caused the plaintiffs great shame and mortification, and great anguish and suffering both of body and mind.

'Second count: And the plaintiffs say that they are and were the owners and proprietors of a certain burial lot situated in the Mt. Auburn Catholic Cemetery, so called, and the plaintiffs had made a grave in said lot and had placed therein a casket containing the dead body of the plaintiffs' mother. And the plaintiffs say that on or about October 15, 1904, the defendant undertook, for a reward to be paid to the defendant by the plaintiffs, to open the said grave and to prepare the same for the reception therein of another casket containing a dead body. And the plaintiffs say that the defendant so negligently and carelessly opened said grave, and so negligently and carelessly prepared the same that he struck, injured, and defaced the said casket placed therein, and the dead body of the plaintiffs' mother, then and there being as aforesaid. By reason of which the plaintiffs have suffered great shame and mortification, and endured great pain and suffering both of body and mind, to the great damage of the plaintiffs.'

Both counts are the same cause of action. In the superior court it appeared from the testimony of Edward T. Feeley, one of the plaintiffs, that their father, Peter Feeley, purchased the grave in question and had received a bill for burying a child in the cemetery, the date of the bill being December 10, 1860. The plaintiffs' mother had died in August, 1898, and was buried in this grave; the plaintiffs' father died October 13, 1904. Arrangements for the father's funeral were in charge of one Feeney, an undertaker now deceased. It further appeared that at the time of the burial of the father, one of the plaintiffs found the plate to her mother's coffin in the earth outside the grave and called the attention of the defendant to the fact and asked him what it meant. Defendant said that he was in doubt as to the ownership of the grave and in order to remove that doubt had broken the top of the box and removed the plate. It further appeared that the grave was not deep enough to put the box containing the body of the plaintiff's father in the grave and that defendant had flattened down the casket containing the body of the mother in order to make room for the casket containing the body of the father. Defendant told the plaintiff that the casket of the mother contained nothing but bones and he took the plate from the hand of one of the plaintiffs and threw it into the grave. The plaintiffs contended that the defendants should have removed the casket containing the body of their mother and should then have deepened the grave. The defendant testified that the casket of the mother was in a ruinous state, that it contained nothing but bones and that he flattened it down. That it would have been impossible to make an interment above it unless the casket was flattened. The defendant further testified that Mr. Feeney understood the whole transaction and he, defendant, refused to take the box intended for the father's casket out of the grave when the plaintiffs requested him to do so in order that they might see the condition of their mother's remains. The court ruled that the plaintiffs were not entitled to recover and plaintiffs excepted.

COUNSEL

J. J. Feely and Roger Clapp, for plaintiffs.

Augustine J. Daly and Francis J. Carney, for defendant.

OPINION

LORING J.

It is laid down in Meagher v. Driscoll, 99 Mass. 281, 96 Am. Dec. 759, that a dead body after burial becomes a part of the ground to which it has been committed, and that the only action that can be brought for an injury to it is an action of trespass quare clausum fregit. See, also, in this connection Burney v. Children's Hospital, 169 Mass. 57, 47 N.E. 401, 38 L. R. A. 413, 61 Am. St. Rep. 273.

The first count in the case at bar is a count of trespass quare clausum fregit. A verdict for the defendant was rightly ordered on that count. The plaintiffs, by proving that through the undertaker, they hired the defendant to prepare the grave for the burial of their father, put themselves out of court on that count. And in our opinion the plaintiffs had no right to go to the jury on the second count. The cases relied on by them are Gowen v. Bessey, 94 Me. 114, 46 A. 792; Hollman v. Platteville, 101 Wis. 96, 76 N.W. 1119, 70 Am. St. Rep. 899; Smith v. Thompson, 55 Md. 5, 39 Am. Rep. 409; Bessemer Land Co. v. Jenkins, 111 Ala. 135, 18 So. 565, 56 Am. St. Rep. 26. These are cases where land was set aside for cemetery, lots were assigned in pais without any deed or written certificate, and apparently the cemetery was not maintained as such beyond the maintenance of the several lots by those to whom they had been assigned. In such a case one who had taken...