Guthrie v. Weaver

• Decision Date: 14 February 1876
• Parties: CHARLES W. GUTHRIE, Respondent, v. CHRISTOPHER C. WEAVER, Appellant.
• Court: Missouri Court of Appeals

1 Mo.App. 136

CHARLES W. GUTHRIE, Respondent,

v.CHRISTOPHER C. WEAVER, Appellant.

St. Louis Court of Appeals, Missouri.

Feb. 14, 1876.

1. Replevin will not lie for a coffin and its contents, when those contents are a corpse.

2. When a coffin, with the consent of all persons having any pecuniary interest in it, has been deposited in the earth for the purpose of interment, with a corpse inclosed within it, it is no longer an article of merchandise.

3. There is no property in a corpse; the relatives have in regard to it, the right of interment; and this right having been once exercised by the father, though against the husband's consent, or by the husband, though against the consent of the father, no right to the corpse remains, except to protect it from insult.

APPEAL from St. Louis Circuit Court.

Judgment reversed, and judgment in favor of defendant for 1 cent damages and costs.

J. Niel, for appellant, cited: 4 Bradford's Surr., appendix, 503; Gen. Stat. (1865) 663, sec. 1.

E. W. Pattison, for respondent.

BAKEWELL, J., delivered the opinion of the court.

This is an action in the nature of an action of replevin, brought under our statute for the claim and delivery of personal property, by the respondent, for a certain metallic casket or coffin, of the value of $90, with its contents, which, it is alleged, were wrongfully taken and detained by the defendant. The affidavit attached to the petition alleges that plaintiff is the owner of the casket, and entitled to its possession; that it was wrongfully taken, and is wrongfully detained, by defendant; that plaintiff's cause of action accrued within one year; and that plaintiff will be in danger of losing his property unless it be taken out of defendant's possession.

A bond was given and the order of delivery granted, and the casket and contents were taken by the sheriff from defendant's lot in Bellefontaine cemetery, where they were interred, and delivered to plaintiff.

The contents of the casket were the dead body of plaintiff's wife, the daughter of defendant.

Under the statute (Prac. Act, Art. 6, sec. 6, Wag. Stat. 1025), if plaintiff states in his affidavit that the property taken was wrongfully taken, and his right of action accrued within one year, defendant shall not be allowed to retain possession, which otherwise he might do on giving a counterbond.

The answer denies all the material allegations of the petition, and states that Maggie J. Guthrie, wife of plaintiff and daughter of defendant, died on January 25, 1873, at the residence of her father, the defendant, in St. Louis; that defendant owned then, and now owns and possesses, a lot in Bellefontaine cemetery, wherein are interred the mother of deceased and her sister; that the deceased, Maggie, on her death-bed, requested to be buried in said lot, and that plaintiff assented to her request, and that she was so buried with his assent; that deceased was inclosed, by defendant, after her death, in the metallic casket sued for herein, and buried as before stated; and that the casket and body have, in obedience to the process herein, been disinterred by the sheriff, and delivered to plaintiff. Defendant prays that the casket and body be returned to him at the place from whence they were taken, and for damages and costs.

The replication denies that Maggie, the deceased, requested to be buried in defendant's lot, and denies any assent on the part of plaintiff to any such request.

From the evidence in the case it appears that plaintiff and defendant were copartners in a hardware store, under the style of Guthrie & Company; that plaintiff was secretly married to deceased in 1871, and that, some months afterwards, they were openly married, with the consent of defendant; that on her death-bed she desired, in the presence of her husband, to be buried in her father's lot. There is evidence tending to show that she requested a grave to be kept there for husband and child by her side, and that this was not done. It appears that she died at her father's house, where her husband was not living, though he was present at her death. The casket in which she was buried was selected by her husband and father conjointly. The funeral expenses were paid, as to a small part of them, by goods from the store of Guthrie & Co.; as for the greater part of the expenses, however, it was met by a note of Guthrie & Co., given by plaintiff, which was taken up by the individual note of defendant, which last note was paid before maturity, without the knowledge and consent of defendant, by the plaintiff. The undertaker swears that he charged the whole funeral expenses to defendant, and looked to him for pay, he being the person considered most responsible in a pecuniary point of view. Plaintiff intimated, before the funeral, an intention to remove the body to a lot of his own, when he procured one, and has since interred her in a lot jointly owned by his mother and his brother-in-law. After the funeral the plaintiff and defendant quarreled violently, and plaintiff, in the presence of three young men, shortly before the commencement of this suit, made to the father of deceased certain horrible charges against the deceased and one of her brothers. It further appears that, before the commencement of this action, plaintiff demanded of defendant possession of the casket and the body of deceased, to reinter them, which was refused. To so much of this testimony as did not touch the question of the value and ownership of the casket plaintiff objected, and excepted duly to its introduction.

The plaintiff asked an instruction to the effect that, if the casket was the property of plaintiff, and withheld from him by defendant, he should recover; also that, if plaintiff bought and paid for the casket, and demanded of defendant to permit the same to be taken up and buried in another lot, he is entitled to recover, even though deceased requested to be buried in defendant's lot. These instructions were refused, and plaintiff excepted.

Defendant asked the court to declare that the pleadings admit that defendant was, prior to his daughter's death, owner of a lot in Bellefontaine cemetery, in which members of his family were interred, and that she was buried there on January 25, 1873, in presence of plaintiff; also that, if there was a valid contract between defendant and plaintiff as to the terms on which deceased was buried in defendant's lot, and a breach by defendant, this form of action is not the remedy; also that, if defendant owned the casket at the date of interment, and the same was with his assent deposited in the grave, with the body of deceased therein, this was a waiver of his right of property therein; also that, if the jury find for defendant, they will find the value of the property claimed, and damages from the time of taking till the date of verdict, and a return of the property to defendant; also that, if deceased on her death-bed requested her father, in her husband's presence and with his assent, to bury her in her father's lot beside her sisters, they will find for defendant, even if plaintiff owned the coffin; also that, if plaintiff owned the coffin, yet if he surrendered it for the burial of his wife, and dedicated it to that use, he cannot recover. The instructions are...