Koerber v. Patek

• Decision Date: 10 January 1905
• Citation: 102 N.W. 40,123 Wis. 453
• Parties: KOERBER v. PATEK.
• Court: Wisconsin Supreme Court

123 Wis. 453

102 N.W. 40

KOERBER

v.PATEK.

Supreme Court of Wisconsin.

Jan. 10, 1905.

Appeal from Circuit Court, Milwaukee County; Warren D. Tarrant, Judge.

Action by Robert Koerber against Arthur J. Patek. From an order sustaining a demurrer to the complaint, plaintiff appeals. Reversed.

Appeal from order sustaining demurrer to complaint, which alleged that the plaintiff was the son and heir of his mother, who died in hospital in Milwaukee, and was by her, before her death, instructed and requested to take charge of her body for purposes of burial, and was the only person interested; that he did so, removing the body to his residence, and proceeding to have the same prepared for burial; that the defendant requested permission to merely examine the stomach of said body, which request being granted, he willfully, maliciously, fraudulently, without authority, and against the wish of the plaintiff, and without any authority at law, and trespassing upon the rights of the plaintiff as custodian of said body and as son and heir, cut out, removed, and carried away the stomach of said dead body, and refused to return the same on request, whereby burial became necessary without it; that thereby the rights of the plaintiff have been recklessly and willfully trespassed upon, and his feelings greatly injured, so that he has suffered both in mind and body, to his damage $5,000.Charles G. Woolcock, for appellant.

Edwin S. Mack, for respondent.

DODGE, J. (after stating the facts).

This action presents a field for consideration uncharted by any direct decisions in this court. The primary and general question is whether any relative, having the conventionally recognized duty of providing proper obsequies and sepulture for the remains of a deceased relative, has any rights, enforceable by courts, to be protected in the performance of that service. It is said the law protects only the person and the purse (Chapman v. W. U. Tel. Co., 88 Ga. 763, 15 S. E. 901, 17 L. R. A. 430, 30 Am. St. Rep. 183), and doubtless, as an epigrammatic generalization, this is reasonably correct. Upon this basis it is argued that such a complaint as the present presents no case of injury either to property or person of the plaintiff--clearly not to the person physically, and not to the property, it is argued, because there can be no property in a dead body. To the last assertion, numerous English and American authorities are cited. 2 Black. Com. p. 429; Re Church, 3 Edw. Ch. 153, 168;Guthrie v. Weaver, 1 Mo. App. 136; Foster v. Dodd, L. R. 3 Q. B. 67; Queen v. Fox, 42 Eng. Com. Law, 658; Keyes v. Konkel, 119 Mich. 550, 78 N. W. 649, 44 L. R. A. 242, 75 Am. St. Rep. 423. Curiously enough, this doctrine seems to come from the dictum of Lord Coke in Hayn's Case, 3 Inst. 110, 2 East's P. C. 652, where, in deciding that ownership of the shroud remained in those who had purchased it, he gives as a reason, among others, that the dead body was not capable of ownership. This remark has been perverted or misunderstood as asserting that the dead body itself is not capable of being property. Nevertheless the later cases cited support the general proposition stated above. Among the earliest attempts to approach the question in America was an interesting discussion by Hon. Samuel B. Ruggles, as a referee, in the Matter of Widening Beckman Street, in New York City, 4 Bradf. Sur. 503, which was addressed to the disturbance of the executed right of sepulture by invading a cemetery. He there insists that by the common law of England, before the domination of the ecclesiastical establishments, the relatives were recognized as having rights in dead bodies capable of unlawful invasion, and therefore of protection or vindication by the courts, and proceeds to the conclusion that in this country, ecclesiastical domination not existing, similar rights should be recognized, among them being the right to bury a corpse and preserve it from disturbance--a legal right, which courts of law will recognize and protect; hence that the expense of the removal and suitable reinterment of the bodies in that cemetery was properly recoverable in favor of the relatives. At about the same time the Supreme Court of Indiana announced the doctrine that bodies of the dead “belong to the surviving relatives, in the order of inheritance as property.” Bogert v. Indianapolis, 13 Ind. 134. In 1872 the Supreme Court of Rhode Island was confronted by a controversy between the only child and heir and the widow of a decedent as to the right of the latter to remove the body from its place of original interment to another lot. The court reviews historically the rights of relatives over the burial of their dead under several systems of law, including that of England while pervaded by the doctrine of ecclesiastical control, and said: “That there is no right of property in a dead body, using the word in its ordinary sense, may well be admitted. Yet the burial of the dead is a subject which interests the feelings of mankind to a much greater degree than many matters of actual property. There is a duty imposed by the universal feelings of mankind to be discharged by some one towards the dead; a duty, and we may also say a right, to protect from violation; and a duty on the part of others to abstain from violation. It may therefore be considered as a sort of quasi property, and it would be discreditable to any system of law not to provide a remedy in such a case.” “And a sort of right of custody over, or interest in, the dead body, in the relatives of the deceased,is recognized in the statutes of many of our states.” “We may consider it [the body] as a sort of quasi property, to which certain persons may have rights, as they have duties to perform arising out of our common humanity. But the person having charge of it cannot be considered as the owner of it in any sense whatever. He holds it only as a sacred trust for the benefit of all who may, from family or friendship, have an interest in it.” From these views the court deduced the conclusion that a court of equity might control the exercise of those rights by one relative, with due regard to the interests of others or of the public, in suggested analogy to control over the custody of children by their parents. It was accordingly held, without deciding as to the relative rights of control as between the widow and the children over the original interment, that under the circumstances the widow ought not to remove a body already buried. Since these early cases the questions of the existence of such a right, and of the person in whom it is vested, under varying circumstances, have been discussed under many phases in different states. A partial list of such cases is as follows: Foley v. Phelps, 1 App. Div. 551, 37 N. Y. Supp. 471; Secord v. Secor, 18 Abb. N. C. 78; Snyder v. Snyder, 60 How. Prac. 368;Patterson v. Patterson, 59 N. Y. 583, 17 Am. Rep. 384;Johnston v. Marinus, 18 Abb. N. C. 72; Re Richardson (Sup.) 60 N. Y. Supp. 539;Griffith v. R. Co., 23 S. C. 27, 55 Am. Rep. 1; Farley v. Carson, 5 Wkly. Law Bul. 786; Hadsell v. Hadsell, 7 Ohio Cir. Ct. R. 196;Renihan v. Wright, 125 Ind. 536, 25 N. E. 822, 9 L. R. A. 514, 21 Am. St. Rep. 249;Wright v. Hollywood Cemetery Corporation, 112 Ga. 884, 38 S. E. 94, 52 L. R. A. 621;Durell v. Hayward, 9 Gray, 248;Meagher v. Driscoll, 99 Mass. 281, 96 Am. Dec. 759;Weld v. Walker, 130 Mass. 422, 39 Am. Rep. 465;Burney v. Children's Hospital, 169 Mass. 57, 47 N. E. 401, 38 L. R. A. 413, 61 Am. St. Rep. 273;Hackett v. Hackett, 18 R. I. 155, 26 Atl. 42, 19 L. R. A. 558, 49 Am. St. Rep. 762;Larson v. Chase, 47 Minn. 307, 50 N. W. 238, 14 L. R. A. 85, 28 Am. St. Rep. 370;Young v. College, 81 Md. 358, 32 Atl. 177, 31 L. R. A. 540;Wynkoop v. Wynkoop, 42 Pa. 293, 82 Am. Dec. 506; Anonymous Case, Ohio C. C. 1871, 6 Am. Law Rev. 182;Pettigrew v. Pettigrew, 207 Pa. 313, 56 Atl. 878, 64 L. R. A. 179, 99 Am. St. Rep. 795;McEntee v. Bonacum (Neb.) 92 N. W. 633, 60 L. R. A. 440;Palenzke v. Bruning, 98 Ill. App. 644;Enos v. Snyder, 131 Cal. 68, 63 Pac. 170, 53 L. R. A. 221, 82 Am. St. Rep. 330;Hockenhammer v. Ry. Co. (Ky.) 74 S. W. 222.

1. For the purposes of this case we shall not deem it necessary to consider whether a corpse can be, in any respect, property. From the authorities above cited, and from original reason, the conclusion seems to us irresistible that in the nearest relative of one dying, so situated as to be able and willing to perform the duty of ceremonious burial, there vests the right to perform it, and that this is a legal right, which, as said in some of the cases, it is a wrong to violate, and which, therefore, courts can and should protect and vindicate. It is not alone with reference to property that legal rights exist, nor is it only those invasions of legal rights causing tangible pecuniary injury for which courts will entertain civil actions and award damages. It is difficult to discover any money loss necessarily resulting from an assault without physical contact; an obstruction of the right to vote; expulsion from car without physical contact or injury; malicious prosecution; the secreting or even the seduction of a daughter; the mere alienation of a wife's affections, affecting only the sentimental relations. Yet courts find no difficulty in entertaining such actions and awarding compensatory damages. In such cases the clear legal right of exemption from such wrongful acts is itself the property. An injury to such a right need not include either an injury to physical property or to person or character. Gibbs v. Larrabee, 23 Wis. 496;Wagner v. Lathers, 26 Wis. 436;Wightman v. Devere, 33 Wis. 570. The wrongful invasion of a clear right is of itself sufficient to support an action, and the law presumes damages, though they may be only nominal. Larson v. Chase, supra; Pierce v. Proprietors, 10 R. I. 227, 14 Am. Rep. 667;Luessen v. Oshkosh E. L. & P. Co., 109 Wis. 94, 98, 85 N. W. 124;Hacker v....