Infield v. Cope

• Decision Date: 12 May 1954
• Docket Number: No. 5660,5660
• Citation: 270 P.2d 716,58 N.M. 308,1954 NMSC 49
• Parties: INFIELD v. COPE.
• Court: New Mexico Supreme Court

Page 716

270 P.2d 716

58 N.M. 308

INFIELD v. COPE.

No. 5660.

Supreme Court of New Mexico.

May 12, 1954.

Johnston Jeffries, Aztec, H. A. Daugherty, Farmington, for appellant.

Charles M. Tansey, Farmington, Gilbert, White & Gilbert, Santa Fe, for appellee.

SADLER, Justice.

This is an appeal from a judgment dismissing the complaint of a decedent's widow seeking damages for mental suffering and impairment of bodily health, said to have resulted from defendant-mortician's wrongful and wanton refusal to permit her to view the body of her husband while in defendant's custody at his mortuary prior to burial, where it had been removed following accidental death in an explosion and fire. The ground of the motion, which the trial court sustained, was that the complaint failed to state a claim upon which relief might be granted. The plaintiff electing to stand on her complaint as filed, the dismissal followed as a matter of course. This appeal is prosecuted to secure a reversal of the trial court's action.

The allegations of the complaint are that plaintiff's husband died on April 13, 1951, from asphyxiation in the course of a fire; that at the time of his death, which occurred at Aztec in San Juan County, New Mexico, and for a short time thereafter, the plaintiff was absent from New Mexico; that the defendant-mortician took custody of the body, removed it to his mortuary in Farmington and prepared it for burial, retaining its custody until April 17, 1951.

The complaint went on to say that after defendant had prepared the body for burial, as aforesaid, the plaintiff arrived in Farmington and requested of defendant that she be permitted to view his body in the casket in which it had been placed by him; that disregarding plaintiff's rights the defendant wrongfully and wantonly refused her initial and subsequent requests, falsely representing that the corpse was burned or charred beyond recognition; that shortly after the plaintiff's return to New Mexico, and on April 17, 1951, the body was shipped by defendant to Denver, Colorado, the former home of plaintiff and her husband and interred in Evergreen, Jefferson County, Colorado; that due to defendant's representations that the corpse was not recognizable and relying thereon, she cancelled plans for a formal funeral to be attended by friends and other relatives and permitted the body to be buried without viewing the remains.

The plaintiff then sets forth in the complaint that she began to entertain anxiety and doubt as to whether the remains shipped to Colorado and interred, as aforesaid, actually were those of her husband, and that others shared the same doubt, as well as uncertainty whether the cause of death might not be other than asphyxiation; that in order to resolve these doubts and alleviate the mental anxiety and suffering under which she labored, having secured lawful authority so to do, the plaintiff caused her husband's body to be exhumed for the purpose of establishing identity and ascertaining the true condition thereof that the examination of the body established that it actually was not charred, or burned beyond recognition, as represented by defendant but was in such condition as to enable identification of the remains from features and other physical characteristics as those of her deceased husband. Finally, the plaintiff alleges that, by reason of the premises, she has suffered great mental anxiety, pain and distress, all to her damage in the sum of $25,000 for which she will ever pray.

It should be said at this point that the initial order of dismissal granted leave to plaintiff to file an amended complaint if she should so desire, a privilege of which she did not avail herself within the twenty days, or at all, and her failure continuing for thirty days, the trial court in an order so reciting entered the second order of dismissal from which the present appeal is prosecuted. This explains our earlier statement that the plaintiff elected to stand upon her complaint, as drawn. Unless it states a cause of action so viewed, the possibility that it might have been amended to state a claim upon which relief could be granted will not aid her. Martinez v. Cook, 56 N.M. 343, 244 P.2d 134.

It should also be mentioned (silence of the complaint on the subject permitting the statement) that no contractual relationship whatever existed between the plaintiff and defendant with respect to the latter's care of decedent's body. As already indicated, the plaintiff was absent from New Mexico at the time of her husband's death and it was not until news thereof occasioned her return to New Mexico, that she contacted defendant for the first time and made the request out of which the cause of action alleged arises. While the complaint does not so state, it is a legitimate inference from what is left unsaid that either decedent's employers or the public authorities engaged defendant to take possession of decedent's body and prepare it for burial.

Moreover, before proceeding to a discussion of the legal questions involved, we may as well eliminate from the case another matter which otherwise might tend to confuse the issues. It arises on the allegations of fraud on defendant's part in representing to plaintiff as justification for denying her request to view the body that it was charred and burned beyond recognition. Aside from the fact that as a basis for stating a cause of action in deceit, the absence of certain material allegations would render the complaint fatally defective in that behalf, the plaintiff frankly disclaims harboring any intention of seeking damages for deceit. In her reply brief she alleges:

'And let it be said here that the misrepresentation complained of was never intended to be a separate cause of action for deceit. Rather it was so alleged and included in the complaint to show the maliciousness, the wilfullness, the very outrageousness of the Defendant's act.'

With these collateral matters out of the way, the question arises: Do the remaining facts alleged, plus such others as arise thereon by reasonable and necessary intendment, disclose a cause of action in plaintiff for the damages she seeks? We think not and shall proceed to give our reasons for so concluding.

Stripped of allegations by way of inducement, the complaint sets up two acts on defendant's part from which the damages suffered are said to have resulted, to-wit:

'1. His refusal to permit the plaintiff to view the corpse in his mortuary; and

'2. His assertion that it was burned beyond recognition.'

Under the early common law in England, where matters relating to the burial and preservation of dead bodies were within exclusive jurisdiction of the ecclesiastical courts, no action for damages would lie for injuries to a dead body. However, if any element of trespass to real or personal property appeared in the molestation of remains of the dead, remedies were afforded. 17 C.J. 1143; 25 C.J.S. Dead Bodies, Sec. 8, p. 1026; Foley v. Phelps, 1...