Hockenhammer v. Lexington & E. Ry. Co.

• Decision Date: 06 May 1903
• Citation: 74 S.W. 222
• Parties: HOCKENHAMMER v. LEXINGTON & EASTERN RY. CO.
• Court: Kentucky Court of Appeals

74 S.W. 222

HOCKENHAMMER v. LEXINGTON & EASTERN RY. CO.

Court of Appeals of Kentucky.

May 6, 1903

Appeal from Circuit Court, Powell County.

"To be officially reported."

Action by John Hockenhammer against the Lexington & Eastern Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

W. D Jackson, for appellant.

Arthur Carey and Morton, Darnall & Wilson, for appellee.

HOBSON J.

Appellant complains of the judgment of the circuit court dismissing on demurrer his petition. The original petition is in these words: "The plaintiff, John Hockenhammer, says that the defendant, the Lexington and Eastern Railroad Company, is a corporation created by the Legislature of Kentucky, with authority to construct and operate a railroad from Lexington Kentucky, eastward through Kentucky; that on the 4th day of September, 1899, the plaintiff, in company with his wife mother, and divers other persons, was bringing to Stanton, Kentucky, the corpse of his infant child Virgil, for the purpose of burying it in the graveyard at Stanton; that on said day, in crossing defendant's road at the regular county crossing made by defendant for said purpose, in Clay county, Kentucky, with a wagon containing the corpse of said child, by the willful neglect and gross carelessness of the defendant's servants and agents, said wagon was run over, and the corpse therein thrown to the ground out of said wagon by the defendant's servants and agents in running defendant's engine and train of cars which said servants and agents had been employed by the defendant to run, and which they were running under said employment, from said city of Lexington, Kentucky, east. Wherefore the plaintiff asks for judgment against the defendant for the sum of $10,000.00 (ten thousand dollars) damages and cost, and for all relief that he may be entitled to." The defendant entered a motion for the plaintiff to make his petition more specific as to the injury to the wagon, and thereupon he avowed that he claimed no damages for injury to the wagon. The defendant then filed a general demurrer to the petition, which was sustained, and the plaintiff was given leave to amend. The following amendment was filed: "The plaintiff, by leave of court, amends his petition herein, and now makes all the allegations set out in his original petition a part of this amendment, and now states that by the willful negligence and gross carelessness of defendant's servants and agents said corpse was thrown out of said wagon in the presence of plaintiff, his wife, and divers other persons following the said corpse to its last resting place, causing the plaintiff great distress and anguish of mind, by the defendant's agents and servants in running defendant's engine and train of cars, which said servants and agents had been employed by the defendant to run, and which they were running under said employment, and that by reason of the said wrongful act, gross negligence, and carelessness of this defendant and its servants and agents, this plaintiff was damaged in the sum of ten thousand dollars. Wherefore he prays judgment for the aforesaid sum, and for all proper relief." The demurrer was sustained to the petition as amended, and, the plaintiff declining to plead further, the action was dismissed.

In 8 Am. & Eng. Ency. of Law, 834, it is said: "While a dead body is not property in the strict sense of the common law, yet the right to bury a corpse and preserve its remains is a legal one, which the courts will recognize and protect. And any violation of it will give rise to an action for damages."

The English common-law authorities are not applicable in America for the reason that the ecclesiastical courts in England exercised exclusive jurisdiction as to the burial of the dead, and the common-law courts treated such matters as belonging exclusively to the church. But as we have no ecclesiastical courts in this country exercising the jurisdiction conferred on such courts in England, rights in the bodies of the dead must be protected by the civil courts. Thus, in Larson v. Chase, 47 Minn. 307, 50 N.W. 238, 14 L.R.A. 85, 28 Am.St.Rep. 370, a widow brought an action to recover damages for the wrongful mutilation of the corpse of her deceased husband, and it was held that, as she had the legal right to the custody of the body of her husband for the purposes of preservation and burial, she could maintain the action, and that as, wherever a legal right is invaded, compensation for the injury may be recovered, she was entitled to recover for mental pain and suffering, as these were the proximate and natural consequences of the defendant's wrongful act. In Meagher v. Driscoll, 99 Mass. 281, 96 Am.Dec. 759, the defendant entered upon plaintiff's land and dug up and removed the dead body of his child. It was held that the plaintiff could recover damages therefor, including mental anguish as an element of recovery; but in this case the court rests its opinion upon the idea that the gist of the action was the...