Jackson v. Rupp

• Decision Date: 07 November 1969
• Docket Number: No. 2375,2375
• Citation: 228 So.2d 916
• Parties: James W. JACKSON, Ethel B. Jackson and Ruth Adamson, Appellants, v. Joseph C. RUPP, M.D., Appellee.
• Court: Florida District Court of Appeals

Page 916

228 So.2d 916

James W. JACKSON, Ethel B. Jackson and Ruth Adamson, Appellants, v. Joseph C. RUPP, M.D., Appellee.

No. 2375.

District Court of Appeal of Florida, Fourth District.

Nov. 7, 1969.

Rehearing Denied Jan. 5, 1970.

William E. Blyler of Patterson, Maloney & Frazier, Fort Lauderdale, for appellants.

Edward A. Perse of Carey, Dwyer, Austin, Cole & Selwood, Miami, for appellee.

CROSS, Chief Judge.

Plaintiffs-appellants, James W. Jackson, Ethel B. Jackson and Ruth Adamson, appeal from a final judgment entered by the trial court on a directed verdict for the defendant-appellee, Joseph C. Rupp, M. D., in a cause of action for damages for performance of an unauthorized autopsy. We reverse.

Clara B. Jackson, deceased, was admitted to Holy Cross Hospital by her treating physician, one Dr. F. A. Osterman, on September 17, 1966. She was then 82 years of age. When admitted she was in a highly agitated state with tentative diagnosis listing Mrs. Jackson's illness as abdominal pain, dehydration and an impression of an intra-abdominal carcinoma.

Upon her admission to the hospital, Dr. Osterman performed an examination which disclosed an impacted colon. The doctor ordered a removal of the fecal impaction and placed Mrs. Jackson on demerol and phenergan for abdominal pain. She was also put on a liquid diet, given a blood transfusion and a lower G. I. series of x-rays was ordered. Later Mrs. Jackson was placed on intravenous fluids, given vitamins, a soft diet and ordered to get out of bed each day and move around.

On September 30, 1966, Mrs. Jackson fell out of bed and sustained an intertrochanteric fracture of the right hop. Orthopedic surgeons performed an open reduction and insertion of Jewett Nail to repair the hip. After the surgery on her hip, Mrs. Jackson gradually went downhill and expired on November 4, 1966. Mrs. Jackson died without giving authority to anyone to perform an autopsy on her body after death.

Following Mrs. Jackson's expiration, Dr. Osterman, the treating physician requested permission of Mrs. Jackson's next of kin to perform an autopsy. The permission was refused.

The defendant, Joseph C. Rupp, who is both a pathologist at Holy Cross Hospital and an Associate County Medical Examiner of Broward County, requested permission of James W. Jackson, one of the plaintiffs and the son of the deceased, to perform an autopsy on Mrs. Jackson's body. Permission was denied.

Thereafter without any request of the Prosecuting Attorney of Broward County, Dr. Rupp made the determination that Mrs. Jackson's death fell within the ambit of his jurisdiction as an Associate County Medical Examiner, and on November 4, 1966, performed an autopsy on the body of Mrs. Jackson. The autopsy revealed that the cause of Mrs. Jackson's death was intestinal obstruction and adenocarcinoma of the ascending colon.

On June 28, 1967, the plaintiffs filed their complaint against Dr. Rupp alleging the performance of the unauthorized autopsy. Dr. Rupp answered and alleged therein the affirmative defense of authority under law by reason of his position as Associate Medical Examiner.

Thereafter the cause was set and came on for trial, and at the conclusion of the plaintiffs' case the defendant moved for a directed verdict. The trial court granted the motion and entered final judgment. This appeal followed.

We have for our determination whether the testimony presented by the plaintiffs at the time they rested their case was essentially so devoid of probative evidence that the jury could not as a matter of law find a verdict for the plaintiffs. The cause of action for an unauthorized autopsy has not heretofore been dealt with by the courts of the State of Florida. This being so, the necessity of investigating the background of a cause of action of this nature appears evident.

The early English common law recognized no property or property rights in the body of a deceased person. Reg. v. Sharpe, Dears and BCC, 160, 169 Eng.Reprint, 959, this being due undoubtedly to the fact that the ecclesiastical courts exercised jurisdiction over the affairs of decedents. This doctrine found its way through early American case law. See: Sacred Heart of Jesus, Polish Nat. C. Church v. Soklowski, 1924, 159 Minn. 331, 199 N.W. 81, 33 A.L.R. 1427. The logic behind these early cases was that a living person could not suffer any legitimate recognizable damage from an act of mutilation on a corpse.

As the American society progressed and became more sophisticated, its courts have held there is a cause of action for an unauthorized autopsy. The basis for recovery is found in the personal right of the decedent's next of kin to bury the body rather than any property right in the body itself. 22 Am.Jur.2d, Dead Bodies, § 5. An autopsy is said to be an interference with this right because the very act of dissecting a body prevents its burial in a proper manner. This personal right to bury a body falls on the person or persons who are in closest relationship to the deceased. 22 Am.Jur.2d, Dead Bodies, § 7.

In those jurisdictions recognizing the cause of action for unauthorized autopsy, the courts are not primarily concerned with the extent of the physical mishandling, injury or mutilation of the body, per se, but rather with the effect of the same on the feelings and emotions of the surviving relatives, who have the right of burial. 25A C.J.S. Dead Bodies § 8(1); 22 Am.Jur.2d, Dead Bodies, §§ 31, 32, 42 & 43; Liberty Mut. Ins. Co. v. Lipscomb, 1937, 56 Ga.App. 15, 192 S.E. 56; Aetna Life Ins. Co. v. Burton, 1938, 104 Ind.App. 576, 12 N.E.2d 360; Alderman v. Ford, 1937, 146 Kan. 689, 72 P.2d 981; Beller v. City of New York, 1945, 269 App.Div. 642, 58 N.Y.S.2d 112; Zaslowsky v. Nassau County Public General Hospital, 1960, 27 Misc.2d 379, 209 N.Y.S.2d 921; Trammell v. City of New York, 1948, 193 Misc. 356, 82 N.Y.S.2d 762.

In an action for an unauthorized autopsy founded solely in tort in order for recovery to be effected for damages resulting from mental pain and anguish unconnected with physical injury, the wrongful act must be such as to reasonably imply malice or such that from the entire want of care or attention to duty or great indifference to the person, property, or rights of others such malice would be imputed as would justify assessment of exemplary or punitive damages. Accord, Kimple v. Riedel, Fla.App.1961, 133 So.2d 437.

In spite of the fact that an exclusive right does vest in the surviving spouse, relative, or next of kin to dispose of a corpse, autopsies may be authorized by public authorities for...