Kyles v. Southern Ry. Co.
| Decision Date | 22 April 1908 |
| Citation | 61 S.E. 278,147 N.C. 394 |
| Parties | KYLES v. SOUTHERN RY. CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Iredell County; Justice, Judge.
Action by Hattie G. Kyles against the Southern Railway Company. From a judgment of nonsuit, plaintiff appeals. Reversed, and new trial ordered.
Evidence held insufficient to show that railway employees willfully wantonly, and brutally mutilated the body of one killed by a train.
In an action against a railway company for failing to gather decedent's remains found on its track, declarations of the section master manifesting some impatience at the prospect of spending the night guarding the remains while waiting for the coroner were properly excluded.
Armfield & Turner and H. P. Grier, for appellant.
L. C Caldwell, for appellee.
The complaint alleges: (1) The careless and negligent mutilation of the dead body of her husband by continuously running its train back and forth over it for nearly 24 hours after the killing; the body all this time lying exposed on the track between the rails. (2) The willful, wanton, and reckless mutilation of the dead body of plaintiff's husband by above recited conduct. (3) For negligent failure to gather up his remains for burial, in that a portion of his remains were not sent home, but lay alongside of the track for four days till gathered up by relatives who carried them home, reopened the grave, and buried these remains with those which had been sent by the defendant company. There is no allegation of wrongful death or negligent killing, in which case the cause of action is created by the statute, and is vested in the personal representative. Revisal 1905, § 59; Killian v Railroad, 128 N.C. 261, 38 S.E. 873. As the court below granted a nonsuit, if there is any evidence of either of the matters alleged, whether of willful and wanton or merely negligent misconduct, the nonsuit must be set aside, as they are not separate causes of action, and it is not necessary to discuss the testimony farther than to ascertain if there is evidence of the cause of action to submit the case to the jury. Matters in defense or in exculpation have no place here, but should be heard on the new trial below.
Was there any evidence of mutilation of the dead body of the deceased, except that incident to the killing? If so, his honor erred in not submitting the case to the jury. In considering this question, the courts will accept the evidence in the most favorable light to the plaintiff, and, if there is any evidence or if different minds can draw different conclusions, it is the duty of the trial judge to submit the case to the jury. House v. Railroad, 131 N.C. 103, 42 S.E. 553; White v. Railroad, 121 N.C. 484, 27 S.E. 1002; Wittkowsky v. Wasson, 71 N.C. 454; Moore v. Railroad, 128 N.C. 455, 39 S.E. 57. The body was found on the defendant's track-head, pool of blood, hair, eyeballs, etc., near the four-mile post from Salisbury; arms and legs 75 yards farther in direction of Salisbury; and the body 250 or 275 yards from head in the same direction; hair, blood, and parts of body along track, inside and outside of the rails, for some distance, and evidence that body was dragged and knocked from one side of the track to the other; hair on angle bars, or nuts where the rails are joined. The body was stripped of its head, legs, and arms, and all clothing. Overcoat found near the place, torn and cut. A piece of it was found one mile east of the body, and a pocket west of Statesville, 27 miles therefrom-in a different direction. The drawers were picked up on the track one-fourth of a mile west from body. Between 9 o'clock on the evening of the 19th and 6 o'clock on the afternoon of the 20th the body and its fragments lay strown up and down the track between the rails, and were run over by every passing train. During this time fifteen or more trains passed over the defendant's track, six or more during the night, and six or more during the day, after the defendant's agents discovered the body, and one train was seen to strike the body as it lay upon the track. The watch that the deceased wore was mashed, and the hands pointed to 7 1/2 minutes to 9 o'clock. Train No. 12 passed the four-mile post going towards Salisbury and the scene of the killing about this time, with a full headlight. The track was straight for one mile each way, and no object was discovered upon the track, as the engineer swore. Train No. 35, from Salisbury, passed No. 12 near that city, and passed the four-mile post a few minutes thereafter. This last train evidently struck the deceased first. That the body was further mutilated is shown by the fact that the headless body was 250 or more yards east of the four-mile post; the drawers were found 1 1/4 miles west; a part of the overcoat a mile east; pocket of overcoat 27 miles west; arms 75 yards east, and on north side of track; legs still further east and on the south side of track; head near the four-mile post, and hair all along down the track on angle bars; trunk all rolled up in cinders and dirt, and mangled and mutilated beyond recognition. A dozen or more trains passed over the body, as already stated, and one was seen to strike it. This evidence of all these things can hardly be reconciled with the theory that only one train struck the deceased. The evidence indicates, rather, that the body was stricken after death by different trains going east and west, and that it, and parts thereof, were thrown hither and thither, backwards, and forwards, by the passing trains, going in opposite directions. This was an infringement upon the legal right of the plaintiff to have the body for burial in the condition in which it was when life became extinct. To hold otherwise would be a violation of "rights and duties recognized by the laws and usages of society, as growing out of the natural relations of human beings to each other, and the divine and human laws which bind society together." Thayer, Judge. All the employés of the defendant who participated in the mutilation of the body were retained in the defendant's employment. This was a ratification, and it cannot be heard to say that the act was unauthorized. 12 A. & E. (2d Ed.) 36 et seq.
The nonsuit, however, it seems was granted, not on the ground of lack of evidence to support the allegations of fact in the complaint, but on the ground that they did not constitute a cause of action. As this is the first time that such cause of action has been presented in the history of this court, it is proper to review somewhat the authorities elsewhere which sustain the proposition that mutilation of a dead body entitles the surviving husband or wife (and, if none, the next of kin) to recover compensatory damages for the mental anguish caused thereby, and, in addition, punitory damages if such conduct was willful and wanton, or in recklessness of the rights of others. The right to the possession of a dead body for the purpose of preservation and burial belongs, in the absence of any testamentary disposition, to the surviving husband, or wife, or next of kin, and, when the widow was living with her husband at the time of his death, her right to the possession of the husband's body for such purpose is paramount to the next of kin. Larson v. Chase, 47 Minn. 307, 50 N.W. 238, 14 L. R. A. 85, 28 Am. St. Rep. 370. A widow has a right of action for the unlawful mutilation of the remains of her deceased husband. Larson v Chase, 47 Minn. 307, 50 N.W. 238, 14 L. R. A. 85, 28 Am. St. Rep. 370; Foley v. Phelps (Sup.) 37 N.Y.S. 471. 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 right, which the courts will recognize and protect, and any violation of it will give rise to an action for damages. 8 A. & E. (2d Ed.) 834, and cases cited; 13 Cyc. 280, and cases cited. While the common law does not recognize dead bodies as property, the courts of America and other Christian and civilized countries hold that they are quasi property, and that any mutilation thereof is actionable. Larson v. Chase, supra. This is not an action for the negligent killing of the deceased, but an action by the widow (8 A. & E. [2d Ed.] 838, and cases cited) for the willful, unlawful, wanton, and negligent mutilation of his dead body. She was entitled to his remains in the condition found when life became extinct; and for any mutilation incident to the killing the defendant would not be liable, but is liable, in law, for any further mutilation thereof after death, if done either willfully, recklessly, wantonly, unlawfully, or negligently. Larson v. Chase, supra; Foley v. Phelps, supra; Railroad v. Wilson, 123 Ga. 62, 51 S.E. 24; Lindh v. Railroad, 98 Minn. 408, 109 N.W. 823, 7 L. R. A. (N. S.) 1018. Where the rights of one legally entitled to the custody of a dead body are violated by mutilation of the body or otherwise, the party injured may in an action for damages recover for the mental suffering caused by the injury. Perley Mortuary Law, 20; Reniham v. Wright, 125 Ind. 536, 25 N.E. 822, 9 L. R. A. 514, 21 Am. St. Rep. 249; Larson v. Chase, supra; Hale v. Bonner, 82 Tex. 33, 17 S.W. 605, 14 L. R. A. 336, 27 Am. St. Rep. 850. In Larson v. Chase, 47 Minn. 311, 50 N.W. 239, 14 L. R. A. 85, 28 Am. St. Rep. 370, it is said, discussing this cause of action: ...
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