Liberty Mut. Ins. Co v. Lipscomb, 26102.

• Decision Date: 15 May 1937
• Docket Number: No. 26102.,26102.
• Citation: 56 Ga.App. 15,192 S.E. 56
• Parties: LIBERTY MUT. INS. CO. v. LIPSCOMB et al.
• Court: Georgia Court of Appeals

56 Ga.App. 15

192 S.E. 56

LIBERTY MUT. INS. CO.

v.LIPSCOMB et al.

No. 26102.

Court of Appeals of Georgia, Division No. 2.

May 15, 1937.

Rehearing Denied June 18, 1937.

[COPYRIGHT MATERIAL OMITTED.]

Syllabus by the Court.

1. The special demurrers, except those held in the opinion to be good, were without merit.

(a) "Where civil liability for a conspiracy is sought to be imposed, the conspiracy of itself furnishes no cause of action. The gist of the action is not the conspiracy alleged, but the tort committed against the plaintiff and the damage thereby done." It may be pleaded and proved as aggravating the wrong complained of, and to permit recovery against all defendants who may be joined as, and shown to be, joint tort-feasors.

(2) "It is the general rule that the allegations of a petition will, when attacked by appropriate demurrer, be construed most strongly against the pleader. So, where general allegations, setting up agency are followed by specific detailed averments, the former ordinarily will yield to the latter." Accordingly, where it is alleged that defendant A employed a doctor B to remove the heart from the body of the deceased husband of the plaintiff, and to deliver the heart to doctor C for the purpose of dissection, without the knowledge or consent of the plaintiff, and that A was acting for, and as a representative of, a defendant insurance company, D, and that the autopsy by B was held at the instance of the defendant insurance company, but it is also alleged that A was instructed by the "designated examiner" of the insurance company to employ doctor B for the purpose named, the petition, construed most strongly against the pleader, as it must be done on general demurrer, will be held to charge that the source of the authority of the alleged agent A was the "designated examiner, " and that doctor B was acting at the instance of A rather than at the instance of the insurance company; and whether or not defendant A had the authority to employ doctor B for the purpose named depends on whether or not the "designated examiner" was acting in the scope of its authority in so instructing the defendant A.

(a) The function of a designated examiner for an insurance company is to examine living persons, and such examiner has no authority, merely by virtue of such agency, to dissect or cause to be dissected a dead body; and its act in directing another to employ a doctor for that purpose, without specific instructions from the principal, will not be binding on the principal.

(b) "The unauthorized mutilation of the dead body of a husband gives a right of action to his widow."

(c) "Every person shall be liable for torts committed by his wife, his child, or his servant, by his command or in the prosecution and within the scope of his business, whether the same shall be by negligence or voluntary."

(d) "As a general rule, in order that a ratification of an unauthorized act or transaction may be valid and binding, it is essential that the principal have full knowledge, at the time of the ratification, of all material facts and circumstances relative to the unauthorized act or transaction, or that some one authorized to represent the principal, except the agent, have such knowledge, unless the principal is wilfully ignorant or purposely refrains from seeking information."

(e) "But an intention to ratify may often be presumed by the law from the conduct of the principal, and that presumption may be conclusive, even against the actual intention of the principal, where his conduct has been such that it would be inequitable to others to permit him to assert that he has not ratified the unauthorized act of his agent." 2 C.J. 492, § 112. "By ratification of a tort committed for one's benefit, the ratifier becomes liable as if he had commanded it; otherwise, if the act was done for the benefit of a third person."

(f) Where, as in the present case, it is alleged that the designated examiner of the defendant insurance company directed defendant A to employ defendant B, a doctor, to remove the heart of the deceased husband of the plaintiff and deliver it to another doctor for the purpose of dissection, without the knowledge or consent of the plaintiff, and that the second doctor did dissect and mutilate the said heart, without the knowledge or consent of the plaintiff, and that the Insurance company ratified the acts of A and B by paying the two doctors for their services, but it is not alleged that the insurance company had any knowl-edge of the act of A or B, or received or retained any benefit therefrom, and where defendant A is joined with defendant B and the insurance company as joint tort-feasors in an action for damages on account of the alleged unauthorized removal, dissection, and mutilation of the said heart, the petition did not, as to the acts of A and B, set forth a cause of action against the defendant insurance company under any theory of agency or of ratification of an unauthorized act.

(g) But where it is alleged in said petition that the doctor to whom the heart was taken for the purpose of dissection was either specially or generally employed by the defendant insurance company to dissect the heart of the deceased husband of the plaintiff, and that he did dissect and mutilate the said heart, all without the knowledge or consent of the plaintiff, and thereafter reported to the insurance company that he had done so, and the insurance company paid him for his services in the matter, the petition set out a cause of action against the defendant insurance company, and the court did not err in overruling the general demurrer to the petition.

Error from City Court of Hall County; Boyd Sloan, Judge.

Suit by Mrs. Claud Lipscomb against the Liberty Mutual Insurance Company and others. To review a judgment overruling general and special demurrers of named defendant to the petition, named defendant brings error.

Affirmed in part, and reversed in part.

Mrs. Claud Lipscomb brought suit against Liberty Mutual Insurance Company, Ed Chambers, and Dr. Cleveland Whelchel, the petition as amended, omitting certain portions which were stricken on demurrer, alleging as follows: That she is the widow of Claud Lipscomb, who worked for the Chambers Lumber Company and was injured about December 24, 1933; that Chambers Lumber Company held an insurance policy on its employees issued by the Liberty Mutual Insurance Company, and that Ed Chambers, who was president and general manager of the lumber company, took out the policy, a copy being attached to the petition as Exhibit A and made a part thereof; that a short time after the death of her said husband she turned the remains of her husband over to an undertaking establishment of J. B. Vickers & Son, who were to prepare the body for burial, and plaintiff went ahead making all arrangements for the funeral of her deceased husband; that while the body was being prepared for interment, Ed Chambers, with Dr. Cleveland Whelchel, went to the undertaking parlors of J. B. Vickers & Son and without the knowledge or consent of plaintiff proceeded to dissect the body of her deceased husband, cutting a large gash in his body, cutting and sawing his ribs loose from his breast bone and otherwise mutilating his body, taking from the body the heart and other parts thereof, and that Dr. Cleveland Whelchel, without the knowledge or consent of plaintiff, carried the heart to Atlanta, Ga., and turned the same over for dissection to a Dr. John Funke; that the heart of her husband was removed from his body by Dr. Cleveland Whelchel and taken to Atlanta, as aforesaid, at the instance of the said Ed Chambers, who was present and giving directions to Dr. Whelchel, and who was acting for, and as a representative of, the said Liberty Mutual Insurance Company, which was located in Atlanta, and not in Hall county, where the said mutilation took place, and that the said Insurance Company paid to Dr. Whelchel a fee for representing it in the premises; that the Downey Hospital was the designated examiner for the said Insurance Company, and that the deceased, Claud Lipscomb, was first carried to said examiner, and that Dr. J. H. Downey, the president of the said hospital and the party and agent of defendant Insurance Company, gave the command to Ed Chambers to remove the heart of the deceased and take it to Atlanta, as aforesaid, and that the defendant Insurance Company ratified the action of Chambers and Whelchel by paying Whelchel and Dr. Funke for their services in performing the said autopsy and mutilating the heart of the deceased Lipscomb; that Dr. Funke was either specially or generally employed by the defendant Insurance Company to examine and dissect the heart of the deceased, and that he did dissect the heart and mutilate the same, all without the knowledge or consent of plaintiff, and that the defendant Insurance Company, after being informed by Dr. Funke of his acts, paid him for his work and thereby ratified what he did; that the cause of her husband's death was well known and plainly to be seen, and that it was unnecessary to have any autopsy on his body, and that no autopsy was called for by his employer, and that the autopsyas held was at the instance of the defendant Insurance Company and was unauthorized in law and illegally done, and without the knowledge or consent of plaintiff; that the autopsy was cruel and inhuman, in that the body was unnecessarily disfigured and mutilated and separated and could not be buried together in a decent manner, all of which was in reckless disregard of plaintiff's rights, and embarrassing and humiliating to her; that the heart of the deceased came, in some way, into the possession again of Dr. Cleveland Whelchel, who said nothing to plaintiff about it, but kept the same in his possession until about May, 1935, when plaintiff learned for the first time that he was in possession of it, and she then made demand for it, and Dr. Whelchel turned the same over to her and ...