Foster v. Foster, (No. 2244.)
| Decision Date | 26 March 1920 |
| Docket Number | (No. 2244.) |
| Citation | 220 S.W. 215 |
| Parties | FOSTER et al. v. FOSTER et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Hopkins County; Wm. Pierson, Judge.
Action by Amanda E. Foster and others against W. T. Foster and others to recover damages for the burial of the body of plaintiffs' husband and father without their knowledge and consent. Judgment for defendants, and plaintiffs appeal. Affirmed.
Thornton & Thornton, of Sulphur Springs, for appellants.
C. E. Sheppard, of Sulphur Springs, for appellees.
On October 24, 1918, Dr. G. W. Foster died at his residence at Yantis, in Wood county, Tex., about 15 miles from Sulphur Springs, the county seat of Hopkins county. He left surviving him his wife and three minor children, the oldest being a girl 13 years of age.
The widow and children are the appellants in this appeal. In January, 1919, Mrs. Foster for herself, and as next friend for her minor children, filed in the district court of Hopkins county this suit against W. T. Foster, the father, and J. N. Foster, an uncle, of her deceased husband. Her petition alleged, in substance, that after the death of her husband W. T. Foster and J. N. Foster fraudulently, deceitfully, unlawfully, wantonly, and maliciously took his body and buried it in the absence of herself and children, without their knowledge or consent, and at a place different from that selected by them; that by reason of the wrongful and unlawful acts of the defendants she and her children were denied the privilege of being present at the funeral service and burial of the deceased husband and father; and that they were prostrated with grief and disappointment. It is further alleged that, in her effort to reach the place of burial before the funeral services were concluded, she contracted a cold and became sick, and endured much suffering thereafter as the result. She alleged that, in order to reach the place of burial before the conclusion of the services, she hired a car and driver at a cost of $5. She further alleged that she desired to have the body of her husband disinterred and removed to another place, and that the expense of the removal will be $250. The petition concludes with a prayer for damages both actual and exemplary. The appellees, defendants below, pleaded in abatement the misjoinder of parties plaintiff, alleging that the petition showed that there was no common cause of action; that each should maintain a separate suit for the damages claimed by each. They also answered to the merits, denying generally and specially the facts set out in the plaintiffs' petition, and alleged that the appellant Mrs. Foster abandoned the body of her deceased husband after his death without making any arrangements for its burial, and that they took charge of the body for the sole purpose of giving it a decent burial, without any knowledge that she intended to have it buried at a different place, and without any intent to injure the plaintiffs in the manner charged.
The facts adduced upon the trial show that Dr. Foster died of pneumonia after an illness extending over a period of about ten days. He resided at the time a few miles distant from his father and uncle. His death occurred about 8 o'clock on the night of October 24th. His father and uncle were notified during that night, and arrived at Yantis the next morning about sunrise.
According to the testimony of Mrs. Foster, quite a number of the neighbors had gathered in, and she had spoken to two or three of them, Cooksey, Adams, and others, about the burial of her husband. She told them, she says, that she wanted him buried at Sulphur Springs by the Masons and the Odd Fellows; that she wanted a robe procured, and a suitable casket; that she did not want him buried at the family burying ground situated at a place called "Black Oak." She further testified that her daughter was quite sick at that time, and she wished to carry the child to a sanitarium at Sulphur Springs, and endeavored to get a conveyance for that purpose the night her husband died, but was unable to do so. She made arrangements the following day, however, and took her three children to Sulphur Springs. She says that while there she spoke to a member of the Masonic Lodge and of the Odd Fellows Lodge about having the remains of Dr. Foster interred at Sulphur Springs. She later learned, for the first time, that W. T. Foster, her father-in-law, had arranged to have the remains buried at "Black Oak," which appears to have been a burying ground somewhere in the country 14 miles distant from Yantis. She further testified that, upon learning that arrangements were being made for burial at "Black Oak," she hired a car and went as rapidly as she could, but arrived at the graveyard just after the funeral services had ended and the grave filled. She testified that she and her husband during his lifetime had an agreement that each was to be buried at Sulphur Springs. She claims that by reason of the distance from Sulphur Springs to "Black Oak" she and her children will in future be deprived of the privilege of visiting and caring for the grave, and that that fact has caused them much grief and pain.
Cooksey and Adams testified that no arrangements for burying the remains had been made with them by Mrs. Foster. Cooksey stated that Mrs. Foster did express to him a wish to have them buried at Sulphur Springs, and that she wanted a robe and a good casket; but he did not agree to procure these things and did not consider that any burial arrangements had been definitely made. Other witnesses testified that they knew of no such arrangements being made by Mrs. Foster previous to her departure for Sulphur Springs.
W. T. Foster testified that, after he arrived at the residence of his deceased son, he conversed with Mrs. Foster, and that neither she nor any one else said anything to him about having made any arrangements for burial or about where it would take place. "Black Oak" was the old family burying ground, and he assumed that there would be no objection to his son's being buried there. Before leaving home, he had given directions to have the grave dug at that place. Mrs. Foster requested him, soon after his arrival at Yantis, to carry her and the children to Sulphur Springs; but he declined to do so. After waiting some time, and seeing no evidences of any funeral arrangements having been made, he inquired of neighbors present if Mrs. Foster had made any, and was informed that she had not. He then, in company with one of the neighbors, went to Sulphur Springs, purchased a casket and robe, secured a hearse, and returned to the family residence. As he was returning, he passed Mrs. Foster and the children going to Sulphur Springs; he did not recognize her at the time, and did not know that she had left home until after she had passed him on the road. He had the body prepared for burial, carried to "Black Oak" graveyard, and interred. Mrs. Foster arrived at the graveyard just about the time the services were closed; she sat in the car, and did not go to the grave.
J. N. Foster testified that he had been informed by the little girl that her mother desired the remains buried at Sulphur Springs, but he did not communicate that information to W. T. Foster. He further testified that two or three years prior to his death Dr. Foster had told the witness that he (Dr. Foster) desired to be buried at "Black Oak" when he died. Other testimony introduced will be referred to in the discussion of the question presented.
The plea in abatement was sustained by the court, and thereafter Mrs. Foster elected to prosecute her personal suit alone, and the action as next friend for her minor children was dismissed.
In charging the jury the court instructed a verdict in favor of the defendant J. N. Foster, presumably upon the ground that the evidence was not sufficient to justify a recovery. He also informed the jury that Mrs. Foster had the right to choose the place for the burial of her deceased husband. He then gave the following instructions, which form the basis of a number of assignments of error:
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