Galvin v. McGilley Memorial Chapels, WD
| Citation | 746 S.W.2d 588 |
| Decision Date | 15 December 1987 |
| Docket Number | No. WD,WD |
| Parties | Richard GALVIN, et al., Plaintiffs-Appellants, v. McGILLEY MEMORIAL CHAPELS, et al., Defendants-Respondents. 39212. |
| Court | Court of Appeal of Missouri (US) |
John E. Turner, Kansas City, for plaintiffs-appellants.
Robert W. Cotter, Kansas City, for defendants-respondents.
Before NUGENT, P.J., and SHANGLER and BERREY, JJ.
The children of Dorothy Galvin, deceased, brought a negligence action against McGilley Memorial Chapels, et al. (McGilley), for the mishandling of the deceased's remains. McGilley filed a motion for summary judgment alleging the law of the State of Kansas applied to the action and that a cause of action for negligent infliction of emotional distress for interference with a dead body is not recognized by that state. The trial court granting McGilley's motion stated that based on the most significant contacts test set forth in Section 145 of the Restatement (Second) of Conflict of Laws, Kansas law applied and plaintiffs' petition failed to state a cause of action because it did not allege intentional or malicious conduct needed to recover under Kansas substantive law. See Burgess v. Perdue, 239 Kan. 473, 721 P.2d 239 (1986).
The undisputed facts are as follows:
Before her death, Dorothy Galvin lived in Overland Park, Kansas, with her husband, Richard S. Galvin, who still maintains residence there. The children of Dorothy and Richard Galvin, Richard R. Galvin, Barbara Galvin, Patricia Posada, and Jane Middleton, plaintiffs, lived with their parents in Overland Park and attended high school there but moved to other states to attend college or pursue employment. Presently, and at all pertinent times, the children-plaintiffs lived in Des Moines, Iowa; Jacksonville, Florida; Naples, Florida; and Arvada, Colorado, respectively.
On December 29, 1984, Dorothy Galvin died at St. Joseph Hospital in Kansas City, Missouri. Shortly thereafter, her husband and two daughters, Barbara Galvin and Patricia Posada, met with an employee of McGilley at the McGilley-Hoge Chapel in Overland Park to make funeral arrangements. McGilley is a Texas general partnership which operates three funeral facilities in the metropolitan area including McGilley-Hoge Chapel in Overland Park and McGilley Midtown Chapel in Kansas City, Missouri. At the Overland Park funeral facility, Barbara Galvin entered into a contract with defendant-McGilley for the purchase of funeral goods and services including air transportation of Dorothy Galvin's remains to Sioux Falls, South Dakota for final funeral services and burial.
On January 1, 1985, a prayer service and visitation at the McGilley-Hoge Chapel was conducted as part of the contracted funeral services. After the services, the casket containing Dorothy Galvin was transported to McGilley's Midtown Chapel to be prepared for air shipment to Sioux Falls, South Dakota. The body was scheduled for an early morning flight on January 2, 1985, at Kansas City International Airport (KCI) on Republic Airlines at 8:55 a.m., to arrive at Sioux Falls at 1:15 p.m.
Funeral arrangements for a Dorothy Butler who had died December 31, 1984, were also made at McGilley's Overland Park facilities and prayer and visitation services were held on January 1, 1985, although not at the same hour of the day as Dorothy Galvin. The body of Dorothy Butler was also transported to the Midtown Chapel for air shipment preparation for a flight out of KCI on Eastern Airlines at 11:25 a.m., on January 2, 1985.
In accordance with airline procedures, it was necessary for both bodies to be delivered to KCI approximately one to two hours prior to the scheduled flight. Both remains were prepared for air shipment in the early morning hours of January 2, 1986, by Jed Sauvain, the night supervisor at the Midtown Chapel. Jeff Adams, a student employee, assisted in the preparation and was to drive the remains of Dorothy Galvin to KCI. At 5:30 a.m., Adams began to leave for the airport, but before leaving he thought he had the remains of Dorothy Butler rather than Dorothy Galvin and told this to Sauvain who helped him switch the bodies.
Normally, identifying stickers showing the surnames of the deceased are placed in two locations inside the casket, out of sight, during the visitation. One sticker is moved to the outside of the casket during transportation. Certain in-house documents and burial transit papers accompany the body when transported. In preparing a corpse for air transportation, certain documents are placed in the casket and the casket is strapped on an air tray while encased in heavy corrugated card board. According to the evidence, the name of the deceased is usually, but not always, written on the outside of the crating.
Adams delivered the body of who he thought was Dorothy Galvin at KCI for the flight to Sioux Falls, South Dakota. Kathy Smith, another employee of the Midtown Chapel, came on duty at 8:00 a.m., on January 2, 1985, and delivered the remaining body to KCI for the flight to Norman, Oklahoma. This air tray contained the remains of Dorothy Galvin.
On the evening of January 2, 1985, an informal visitation was arranged for friends and relatives in Sioux Falls. Prior to the visitation, the family was informed the wrong remains had been shipped. Richard Galvin was shown the body at the funeral home and identified it as not being his mother, Dorothy Galvin. Richard Galvin went to a medical clinic from the funeral home to get some medication for his nerves. The visitation took place without the body of Dorothy Galvin. After being notified of the mix-up, Mark McGilley, manager and funeral director of the Midtown Chapel, made arrangements for the delivery of Dorothy Galvin to South Dakota. The remains of Galvin were delivered to the funeral home in South Dakota at approximately 2:00 a.m., on January 3, 1985.
Plaintiffs allege they suffered mental anguish and continue to suffer mental anguish by defendant's conduct in failing to deliver the proper body to Sioux Falls, South Dakota. On appeal from a dismissal of their petition, plaintiffs assert the State of Missouri has the most significant contacts with this cause of action and the substantive law of Missouri should be applied for a determination of the issues.
This state adopted the most significant contacts or most...
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