Hickey v. Hickey, 3--173A4

• Decision Date: 29 June 1973
• Docket Number: No. 3--173A4,No. 3,3--173A4,3
• Parties: Jacqueline HICKEY and Goethals-Thallemer Funeral Home, Appellants (Defendant Below), v. Jon HICKEY, Appellee (Plaintiff Below)
• Court: Indiana Appellate Court

Page 29

298 N.E.2d 29

156 Ind.App. 610

Jacqueline HICKEY and Goethals-Thallemer Funeral Home, Appellants (Defendant Below), v. Jon HICKEY, Appellee (Plaintiff Below).

No. 3--173A4.

Court of Appeals of Indiana, Division No. 3.

June 29, 1973.

Rehearing Denied Aug. 16, 1973.

Patrick Brennan, Michael Scopelitis, Patrick Brennan and Associates, South Bend, William T. Means, Bingham, Loughlin & Means, Mishawaka, for appellants

H. Theodore Noell, South Bend, for appellee.

STATON, Judge.

I. STATEMENT ON THE APPEAL

Jon Hickey sought a permanent injunction from the St. Joseph Circuit Court to restrain his sister-in-law, Jacqueline Hickey, from disinterring and removing the body of his brother, Melvin J. Hickey, from Highland Cemetery. After a hearing on Jon Hickey's application for permanent injunction on May 3, 1972, the court took the matter under advisement. On June 28, 1972 a permanent injunction was granted restraining Jacqueline Hickey from disinterring and removing the body of Melvin J. Hickey. Jacqueline Hickey's motion to correct errors raises the following issues:

1. Was the trial court's decision contrary to law?

2. Was there sufficient evidence to grant injunctive relief?

3. Was the trial court's decision contrary to the evidence.

Our opinion concludes that the trial court's decision was not contrary to law. There was sufficient evidence to grant injunctive relief and support the trial court's judgment. We affirm the trial court's judgment in our opinion which follows.

II. STATEMENT OF THE FACTS

Jacqueline and Melvin Hickey were married on January 13, 1968. During the brief period of their marriage, the Hickeys lived apart on several occasions. Melvin Hickey was residing with his parents at the time of his death. He died of a heart attack on December 31, 1968. Jacqueline Hickey was notified of her husband's death the following day by Jon Hickey, brother of the deceased. Jon Hickey took his brother's widow to the funeral home to make arrangements for the funeral. Mrs. Hickey picked out a casket and signed a funeral purchase record, but she made no express arrangements as to the place of burial. Melvin Hickey was buried in the Hickey family plot in Highland Cemetery. Burial and gravestone expenses were paid by the Hickey family. The cost of the funeral service was paid by Jacqueline Hickey in June, 1970 after the funeral home filed suit to collect this unpaid bill. In July, 1970, one and one-half years after her husband's death, Jacqueline Hickey purchased two plots as the Southlawn Cemetery with the intent of having her husband's body moved from the Highland Cemetery to Southlawn. On December 28, 1970, Mrs. Hickey obtained a disinterment permit from the Indiana State Board of Health. Jon Hickey filed his application for a temporary restraining order and permanent injunction. The St. Joseph Circuit Court granted a permanent injunction restraining Mrs. Hickey from moving the body of her husband to Southlawn Cemetery. Jacqueline Hickey's motion to correct errors was overruled and on appeal raises the issues set forth below.

III.

STATEMENT OF THE ISSUES

The three issues presented by this appeal are:

1. Was the trial court's decision contrary to law?

2. Was there sufficient evidence to grant injunctive relief?

3. Was the trial court's decision contrary to the evidence?

IV.

STATEMENT ON THE LAW

ISSUE ONE: The question of a wife's right to disinter her deceased husband's body once it has been interred is one of first impression in Indiana. Several Indiana cases, althugh not involving disinterment, have stated that there is a limited property right in the bodies of the dead belonging to the surviving relative in the order of inheritance. Bogert v. City of Indianapolis (1859), 13 Ind. 134; Renihan v. Wright (1890), 125 Ind. 536, 25 N.E. 822; Meek v. State (1933), 205 Ind. 102, 185 N.E. 899 and Aetna Life Insurance Co. v. Burton (1938), 104 Ind.App. 576, 12 N.E.2d 360. The Appellate Court of Indiana stated in Aetna Life Insurance Co. v. Burton, supra, 104 Ind.App. at 581, 12 N.E.2d at 362:

'. . . For the purpose of preservation and interment the surviving widow (in the absence of prior disposition by the decedent of his body) is entitled to possession of the dead body and the law recognizes and will protect such right from unlawful invasion and for violation of such right will compensate the feelings of the surviving widow by way of damages. . . .' (Our emphasis)

Jacqueline Hickey contends that this primary right of 'preservation and interment' extends to a right to change the place of burial over the wishes of her deceased husband's brother. She asserts that having complied with the requirements set out in I.C.1971, 23--14--1--25, Ind.Stat.Ann. § 21--1022 (Burns 1964), she has '. . . a right, as a matter of law, to disinter and remove her husband's body in order to reinter it in a burial plot of her closing (sic).' ¹

Other jurisdictions have been reluctant to grant disinterment and removal without a showing of 'laudable purposes,' ² 'good cause and urgent necessity,' ³ 'extreme exigency' ⁴ or 'controlling public reason or superior private right.' ⁵ See also Smith v. Shepherd (1903), 64 N.J.Eq. 401, 54 A. 806; Litteral v. Litteral (1908), 131 Mo.App. 306, 111 S.W. 872; Yome v. Gorman (1926), 242 N.Y. 395, 152 N.E. 126; Vaughan v. Vaughan (1936), 294 Mass. 164, 200 N.E. 912; Theodore v. Theodore (1953), 57 N.M. 434, 259 P.2d 795; and Atkins v. Davis (1961), Tex.Civ.App., 352 S.W.2d 801.

Indiana adopts the majority view and holds that Jacqueline Hickey does not have an absolute right to disinter her deceased husband's remains as a matter of law. Mechanical compliance with I.C.1971, 23--14--1--25, supra, is preliminary authority subject to the rights of others who may wish to seek relief from the proposed disinterment. Once relief is sought in the courts, as was done in the present case, the right to disinter is within the sound discretion of the trial court. The trial court's decision to entertain Jon Hickey's application for a permanent injunction was not contrary to law.

ISSUE TWO: Jacqueline Hickey's second contention of error is that Jon Hickey is not entitled to injunctive relief on the grounds that he failed to show '. . . irreparable injury for which there would be no adequate remedy at law. . . .' It is well-established in the United States that disinterment and removal is within the province of equity. Pettigrew v. Pettigrew (1904), 207 Pa. 313, 56 A. 878; Bunol v. Bunol (1930), 12 La.App. 675, 127 So. 70; Cordts v. Cordts (1941), ISSUE THREE: Jacqueline Hickey's final contention of error is that there is insufficient evidence to support the trial court's granting of a permanent injunction. This Court will not weigh the evidence nor resolve questions of credibility of witnesses. We will look only to that evidence and the reasonable inferences therefrom which support the trial court's judgment. Pokraka v. Lummus Co. (1952), 230 Ind. 523, 104 N.E.2d 669; Wm. J. & M. S. Vesey, Inc. v. Hillman (1972), Ind.App., 280 N.E.2d 88; Rudd v. Anderson (1972), Ind.App., 285 N.E.2d 836. If the judgment of the trial court is sustainable on any theory it must be affirmed. Ross v. Review Board of Indiana Employment Security Division (1962), 243 Ind. 61, 182 N.E.2d 585; Lewis v. Burke (1968), 143 Ind.App. 696, 242 N.E.2d 382.

154 Kan. 354, 118 P.2d 556; Currier v. Woodlawn Cemetery (1949), 300 N.Y. 162, 90 N.E.2d 18, and Fischer's Estate v. Fischer (1954), 1 Ill.App.2d 528, 117 N.E.2d 855. The granting or refusing to grant an injunction in Indiana is within the sound discretion of the trial court, and this Court on appeal will not reverse such judgment unless there has been a clear showing of abuse of discretion. Weis v. Cox (1933), 205 Ind. 43, 185 N.E. 631; City of East Chicago v. Chicago and Calumet District Transit Company, Inc. (1963), 134 Ind.App. 631, 190 N.E.2d 565. Melvin Hickey's mother died after his burial. She was buried next to her son in the family burial plot. There is no showing of possible damage to the adjoining grave; however, the non-[156 Ind.App. 615] existence of provable damages does not prevent the granting of an injunction. Burton v. Sparks (1941), 109 Ind.App. 531, 36 N.E.2d 962. Irreparable injury does not necessarily mean that the injury must be very great. Newell v. Sass (1892), 142 Ill. 104, 31 N.E. 176; Warehouse Distributing Corp. v. Dixon (1933), 97 Ind.App. 475, 187 N.E. 217. The granting of an injunction to restrain a surviving widow from removing her deceased husband's remains once buried has been held proper in Peters v. Peters (1887), 43 N.J.Eq. 140, 10 A. 742; Litteral v. Litteral (1908), 131 Mo.App. 306, 111 S.W. 872; Stiles v. Stiles (1920), 113 Misc. 576, 185 N.Y.S. 53 and Curlin v. Curlin (1921), Tex.Civ.App., 228 S.W. 602. We cannot say that the trial court abused its discretion in granting a permanent injunction to protect Jon Hickey's interest in having the remains of his deceased brother and mother left undisturbed.

Many factors have been recognized in other jurisdictions to be considered before disinterment by the widow will be allowed. We would adopt the three factors set forth in Nolan v. Nolan (1961), La.App., 125 So.2d 792, 795, adding one additional factor: (4) If the disinterment would in any way conflict with the deceased' religious beliefs and those of his family, the trial court may take such religious beliefs into consideration to determine the question of disinterment. In Nolan v. Nolan, supra, 125 So.2d at 795, the three factors considered by the court were:

'. . . (1) whether the initial selection of the resting place was made with deliberation and without mental reservation that at some future time removal might be desired; (2) whether there are evidences of such antagonism and hostility between the surviving spouse and the owners of the tomb or burial plot as would prevent the surviving spouse from visiting the grave freely and without...