Gurganious v. Simpson

• Decision Date: 25 May 1938
• Docket Number: 681.
• Citation: 197 S.E. 163,213 N.C. 613
• Parties: GURGANIOUS v. SIMPSON et al.
• Court: North Carolina Supreme Court

197 S.E. 163

213 N.C. 613

GURGANIOUS v. SIMPSON et al.

No. 681.

Supreme Court of North Carolina

May 25, 1938

Appeal from Superior Court, Guilford County; Frank S. Hill, Special Judge.

Action by F. B. Gurganious against J. M. Simpson, Coroner, and others, for damages for mutilation of the dead body of plaintiff's son. From a judgment of nonsuit, plaintiff appeals.

Affirmed in part and reversed in part.

Affirmed as to defendant Reich Funeral Home.

Reversed as to defendants Simpson, Shelburne, Warwick and Smith.

Action to recover damages for mutilation of the dead body of plaintiff's son. An unauthorized autopsy is alleged. The county coroner, three physicians and an incorporated funeral home are joined as parties defendant. At the close of plaintiff's evidence judgment of nonsuit as to all defendants was entered, and plaintiff appealed.

On a motion for judgment of nonsuit, evidence must be considered in aspect most favorable for the plaintiff.

Paul Strickland and Wm. L. Robinson, both of Burlington, for appellant.

Hines & Boren and Sapp & Sapp, all of Greensboro, for appellees.

DEVIN Justice.

The right of a father to prosecute an action for damages for the wrongful mutilation of the dead body of his son has been established by the decisions of this court (Kyles v. R Co., 147 N.C. 394, 61 S.E. 278, 16 L.R.A.,N.S., 405; Floyd v. R. Co., 167 N.C. 55, 83 S.E. 12 L.R.A.1915B, 519; Morrow v. R. Co., 213 N.C. 127 195 S.E. 383), and this principle has been extended to include an action based upon an unauthorized autopsy ( Stephenson v. Duke University, 202 N.C. 624, 163 S.E. 698). The right to bury the dead is generally treated as a quasi right of property, and the mutilation of the body held actionable. Kyles v. R. Co., supra; Larsen v Chase, 47 Minn. 307, 50 N.W. 238, 14 L.R.A. 85, 28 Am.St.Rep. 370.

Here the plaintiff's evidence shows that the autopsy on the body of plaintiff's son was performed by reputable physicians, at a funeral home, by the direction of the county coroner. There is no suggestion that any of these were acting otherwise than in good faith. Under these circumstances will an action for damages lie against them, or any of them? Let us examine the facts upon which liability is claimed.

It appears from the evidence offered by the plaintiff that the body of his minor son was discoverd in the Y. M. C. A. swimming pool, in Greensboro, apparently drowned. The plaintiff lives in Wilmington. None of the next of kin of deceased were in the county. The coroner was called in, and he, upon finding no water in the lungs and neck unbroken, had the body removed to the funeral home of one of the defendants, and called in three physicians to make an autopsy to determine the cause of death. The autopsy revealed that death was due to an acute heart attack. It was testified that the defendant Simpson (the coroner) had said "he had the autopsy performed to determine the cause of death, that he had no suspicion of foul play, that no inquest was held." The admission in the answer of the defendants physicians, that they were requested and directed to perform the autopsy "for the purpose of determining the cause of death," was offered in evidence. Admittedly no permission from the father of the deceased, nor any of his kin, was asked or obtained. The father testified he would not have given his consent if it had been requested. He further testified that knowledge of the autopsy on the body of his son shocked and unnerved him equally with the news of his death. There was no evidence that the defendant funeral home offered objection to the autopsy being made, or did anything to prevent it.

The duties and powers of a coroner are prescribed by C.S. § 1020. It is apparent from an examination of this statute that no authority is there given the coroner in cases where he does not suspect foul play and where no inquest is held or jury summoned, upon his own initiative, to cause an autopsy to be performed merely to ascertain the cause of death of a person. This statute authorizes an investigation "whenever it appears that the deceased probably came to his death by the criminal act or default of some person," and in such case empowers the coroner "to summon a physician or surgeon and to cause him to make such examination as may be necessary...