Floyd v. Atl. Coast Line Ry. Co

• Decision Date: 14 October 1914
• Docket Number: (No. 215.)
• Citation: 83 S.E. 12,167 N.C. 55
• Court: North Carolina Supreme Court
• Parties: FLOYD et al. v. ATLANTIC COAST LINE RY. CO.

83 S.E. 12

167 N.C. 55

FLOYD et al.

v.ATLANTIC COAST LINE RY. CO.

(No. 215.)

Supreme Court of North Carolina.

Oct. 14, 1914.

Clark, C. J., dissenting.

Appeal from Superior Court, Sampson County; Daniels, Judge.

Action by Josephine Floyd and husband against the Atlantic Coast Line Railway Company. Judgment for defendant, and plaintiffs appeal. Affirmed.

H. A. Grady, of Clinton, for appellee.

WALKER, J. [1] This action was brought by the feme plaintiff to recover damages for the negligent mutilation of the dead body of her son, Grady O'Berry Floyd, who, it is alleged, had theretofore been killed by one of the defendant's trains. The plaintiff's counsel state very frankly in their brief that the action is one solely in behalf of the feme plaintiff, her coplaintiff and husband being joined with her as a nominal party under the statute, and disavowing any right to recover in his behalf. It is therefore to be regarded as her suit, and not as his. In the start it may be taken as settled by us in Kyles v. Railroad Co., 147 N. C, 394, 61 S. E. 278, that the cause of action set out in the complaint is recognized as a legal one, and plaintiff is entitled to recover damages, provided she is the party entitled to sue for them, and establishes her case before the court and jury. These authorities may be added to those cited in the Kyles Case:

"At common law there can be no property in a dead human body, and after burial of such dead body it becomes part and parcel of the ground to which it was committed. Nevertheless, the right to bury a corpse and preserve its remains is a legal right which the courts will recognize and protect. While the body is not property in the usually recognized sense of the word, yet it may he considered as a sort of quasi property, to which certain persons may have rights as they have duties to perform towards it, and the right to dispose of a corpse by decent sepulture includes the right to the possession of the body in the same condition in which death leaves it." 18 Cyc. 267-268.

"In more recent times the obdurate common-law rule has been very much relaxed, and changed conditions of society, and the necessity for enforcing that protection which is due to the dead have induced courts to re-examine the grounds upon which the common-law rule reposed, and have led to modifications of its stringency. The old cases in England were decided when matters of burial and the care of the dead were within the jurisdiction of the Ecclesiastical Courts, and they are not longer absolutely controlling." Foley v. Fhelps, 1 App. Div. 551, 555, 37 N. Y. Supp. 471, 473, 474.

And again, in the same case:

"The right is to the possession of the corpse in the same condition it was in when death supervened. It is the right to what remains when the breath leaves the body, and not merely to such a hacked, hewed, and mutilated corpse as some stranger, an offender against the criminal law, may choose to turn over to an afflicted relative."

It was said in Pierce v. Swan Point Cemetery, 10 R. I. 227, 14 Am. Rep. 667:

"That there is no right of property in a dead body, using the word in its ordinary sense, may well be admitted. Yet the burial of the dead is a subject which interests the feelings of mankind to a much greater degree than many matters of actual property. There is a duty imposed by the universal feelings of mankind to be discharged by some one toward the dead, a duty, and we may also say a right, to protectfrom violation, and a duty on the part of others to abstain from violation; it may therefore be considered as a sort of quasi property, and it would be discreditable to any system of law not to provide a remedy in such a case."

So that it may be considered as finally settled that an action will lie in such a case by the proper person; it being an actionable wrong to him. There are very able and learned discussions of the question in Lawson v. Chase, 47 Minn. 307, 50 N. W. 23S, 14 L R. A. 85, 28 Am. St. Rep. 370, by Judge Mitchell, and in Pierce v. Proprietors of Swan Point Cemetery, 10 R. I. 227, 14 Am. Rep. 227, by Judge Potter, in which it is maintained that there is a quasi property in a dead body, which belongs to certain of the relatives of the deceased or to those who sustained close relations to him while living, which will be protected by the courts.

The judge below ruled that plaintiff was not the proper party to sue, but that the father of the deceased is the proper party, and the cause of action, if it exists, belongs to him. He, therefore, gave judgment of nonsuit, and plaintiff appealed. The recovery is claimed for mental anguish, caused by the mutilation of the body. It is said in the Kyles Case, 147 N. C, at pages 398 and 399, 61 S. E. 280:

"The 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, and when the widow was' living with her husband at the time of his death, her right to the possession of the husband's body for such purpose is paramount to the next of kin. Larson v. Chase, 47 Minn. 307 [50 N. W. 238, 14 L. R. A. 85, 28 Am. St. Rep. 370]. A widow has a right of action for the unlawful mutilation of the remains of her deceased husband. Larson v. Chase, supra; Foley v. Phelps 37 N. Y. Supp. 471, While a dead body is not property in the strict sense of the common law, yet the right to bury a corpse and preserve its remains is a legal right which the courts will recognize and protect, and any violation of it will give rise to an action for damages. 8 A. & E. (2d Ed.) 834, and cases cited; 13 Cyc. 280, and cases cited. While the common law does not recognize dead bodies as property, the courts of America and other Christian and civilized countries have held that they are quasi property, and that any mutilation thereof is actionable. Larson v. Chase, supra. This is not an action for the negligent killing of the deceased, but an action by the widow (8 A. & E. [2d Ed.] 838, and cases cited) for the willful, unlawful, wanton, and negligent mutilation of his dead body. She was entitled to his remains in the condition found when life became extinct; and for any mutilation incident to the killing the defendant would not be liable, but it is liable in law for any further mutilation thereof after death, if done either willfully, recklessly, wantonly, unlawfully, or negligently. Larson v. Chase, supra; Foley v. Phelps, supra; Railroad v. Wilson, 123 Ga. 62 [51 S. E. 24, 3 Ann. Cas. 128]; Lindh v. Railroad [99 Minn. 408, 109 N. W. 823], 7 L. R. A. (N. S.) 1018. Where the rights of one legally entitled to the custody of a dead body are violated by mutilation of the body or otherwise, the party injured may in an action for damages, recover for the mental suffering caused by the injury. Perlev Mortuary Law, 20: Reniham v. Wright. 125 Ind. 536' [25 N. E. 822, 9 L. R. A. 514, 21 Am. St: Rep. 249]; Larson v. Chase, supra; Hale v. Bonner, S2 Tex. 33 [17 S. W. 605, 14 L. R. A. 336, 27 Am. St. Rep. 850]."

In that case the widow sued for the mutilation and disfigurement of her husband's body. Here the mother sues for the wrong done her in the mutilation of her son's body, the father being still alive. Can she do so? is the question for us to decide. It is said in 13 Cyc, at page 281, that:

"An unauthorized and unlawful mutilation of a corpse before burial gives rise to an action for damages in favor of the surviving husband or wife or next of kin. So the next of kin of a dead person has a cause of action against a carrier for an injury to the body of such deceased person, caused by the negligent act of the carrier while transporting it for hire."

And in Burney v. Children's Hospital, 169 Mass. 57, 47 N. E. 401, 38 L. R. A. 413, 61 Am. St. Rep. 273, it appeared that a child died in a Boston hospital and an autopsy was performed upon the body without any authority from the parents. It was held that the father of the child, being its natural guardian, and after its death having a right to the possession of the body for burial, could maintain an action for damages against the hospital authorities for such unauthorized autopsy, and the court held that:

"As in the case at bar, there was no executor, and there could be none, as the deceased was a minor, the father, as the natural guardian of the child, was entitled to the possession of its body for burial. Being entitled to the possession of the body for the purposes of burial, is not his right, against one who unlawfully interferes with it and mutilates it, as great as it would be if the body was buried in his lot, and was thence unlawfully removed? That an action may be maintained in the latter case we have already seen, and we are of opinion that it may be in the former."

Speaking to the same question in Bogert v. City of Indianapolis, 13 Ind., at page 138, the court said:

"We lay down the proposition that the bodies of the dead belong to the surviving relations, in the order of inheritance, as property, and that they have the right to dispose of them as such, within restrictions analogous to those by which the disposition of other property may be regulated."

Whatever was formerly the law under Rev. Code, c. 64, § 1, and subsections 5 and 6; Revisal, c. 1, § 132, subsections 5 and 6 (Gillespie v. Foy, 40 N. C. at marg. p. 282 of Anno. Ed.); the Public Laws of 1911, c. 172; Pells Revisal (Supplement) § 132, p. 4—the law has now been made clear, as that act provides, that:

"If in the lifetime of the father any of his children shall die intestate without wife or children, then the father shall be entitled to all of the personal property of such deceased child."

This was an amendment to Revisal, § 132, subsec. 6. When the father is dead the former law is in force, and if there is no widow or children of the deceased child, the mother and brothers and sisters take equally as distributees, and if there is a widow, she and the mother...