Long v. Chicago, R.I. & P. Ry. Co.
| Decision Date | 05 September 1905 |
| Citation | 86 P. 289,15 Okla. 512,1905 OK 50 |
| Parties | LONG et al. v. CHICAGO, R.I. & P. RY. CO. |
| Court | Oklahoma Supreme Court |
Rehearing Denied June 11, 1906.
Syllabus by the Court.
The parents of an infant child are not entitled, under the law to recover damages for mental pain and anguish occasioned by the mutilation of the dead body of such infant.
[Ed Note.-For cases in point, see vol. 15, Cent. Dig. Damages, § 103: vol. 15, Cent. Dig. Dead Bodies, § 13.]
Error from District Court, Grant County; before Justice James K Beauchamp.
Action by Charles G. Long and others against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiffs for $65, and they bring error. Affirmed.
C. S Ingersol and W. H. C. Taylor, for plaintiffs in error.
M. A. Low and Mackey & Mackey, for defendant in error.
This is an action for damages against the appellee. Charles G. Long and Minnie B. Long were the parents of Mason Long, an infant son of 13 years, who died on April 12, 1904. His parents, desiring to bury him in the family cemetery at Marshfield, Ind., purchased tickets for themselves, and also a ticket for the body of the deceased, from Pond Creek, Okl., to that place, over the defendant's line of road. The petition alleges that the defendant, in placing the casket in the car, handled it in so negligent and careless a manner that it fell on the ground, thereby breaking the casket and outer box and mutilating and disfiguring the body of their dead son; that the plaintiffs were compelled to expend the sum of $65 in Kansas City for the preparation of the body for burial, and to have the casket repaired, all of which was occasioned by the negligence of the defendant company; that by reason of the negligent acts of the defendant, the plaintiffs suffered great mental distress. Judgment is prayed in the total sum of $1,565. On the trial, the defendant offered to confess judgment for $65, the amount of the actual damages, but objected to the introduction of any evidence as to mental suffering. The court sustained the objections. The jury returned a verdict for the $65, for which judgment was entered. The plaintiffs have appealed to this court. The record and briefs present the sole question as to whether or not a recovery can be had for mental suffering in a case of this kind.
The cutting, bruising, or disfiguring of the dead body of a child could not fail to cause great mental distress to those responsible for its existence, and whose hopes have been disappointed by its loss. Indeed, language is incapable of conveying the pain and anguish that such an act would produce in the mind of a tender and loving parent. But when done either maliciously or negligently, the injury is one for which the law has failed to provide compensation in dollars and cents, and, in announcing this rule, we have not overlooked the declarations to the contrary by some courts of high standing. These decisions, however, indicate an effort to interpolate into the law for the punishment of a wrong, a remedy at the sacrifice of legal principles, as declared by the judges of England, from whence our rules of human conduct were adopted, and still obtain in this territory, except as modified by statutory enactment. The courts which declare the right to recover for mental anguish in a case of this character do so upon the assumption that a human corpse is property; not property in the general acceptation of that term, but a sort of quasi property-that is, that it so resembles property, in the right of the relatives to control and direct its interment, and to have it kept inviolate from negligent or malicious injury, that the law of the rights of property and the remedy for the destruction thereof should be extended to such cases, measuring the injury and compensation by the mental suffering of the living occasioned by the desecration of the dead. The disposition to protect the bodies of the departed, as indicated by these decisions, appeals to our higher sensibilities, but the rules announced by these courts authorizing recovery for mental anguish alone is, in our opinion, largely the result of sentiment, and is in conflict with the common law of the land. It is true that in some countries the bodies of deceased persons have been seized and sold for debt, and, under such a law, they would be property. Greatly to their credit, England and the United States have always considered the decent burial of the dead of more importance than the payment of the debtor's claims.
The case of Burney v. Children's Hospital in Boston (Mass.) 47 N.E. 401, 61 Am. St. Rep. 273, 38 L. R. A. 413, is perhaps the strongest case on the side of appellant. The court said: "A father of a child, who is its natural guardian, has such a right to its dead body that he may maintain an action against one to whom he intrusted the child for treatment, and who, without his consent, performed an autopsy on the dead body." The cases cited in support of the decision just referred to are not in point, except in so far as they deal with the right of the relatives or administrator to control, care for, and bury the dead body. They do not suggest a remedy in a court of law for mental suffering as a result of an infringement of those rights. The case of Meagher v. Driscoll, 99 Mass. 281, 96 Am. Dec. 759, cited in the opinion, did not involve the question of mutilation of a corpse. The defendant had entered upon the lot of plaintiff in a cemetery and removed therefrom the dead body of his (plaintiff's) child. The action was in the nature of trespass quare clausum fregit, and the injury was to the plaintiff's close, by breaking and entering and digging the soil. The exhuming of the dead body, and what was done with it, were only circumstances which the jury were permitted to consider in determining as to whether the trespass was willful or characterized by gross carelessness. In the opinion, the court said: The court expressly held that a dead body is not property and, after burial, the only remedy for disturbing it is an action for trespass quare clausum; citing, with approval, 2 Blackstone's Comm. 429. In the case of Beam v. Cleveland, C., C. & St. Louis Ry. Co., 97 Ill.App. 24, it was held that one can, where he pays for the transportation thereof, recover damages for injury to the remains of his dead brother, occasioned by the negligence of the railroad company. This decision, however, is simply a statement of the rule, and the case is not argued from general principles, nor is it supported by a citation of authorities.
Our attention has also been directed to the following cases which sustain the doctrine of recovery for mental anguish, caused by the delay in shipment of or injury to a dead body: Mattie Hale v. Bonner et al. (Tex.) 17 S.W. 605, 14 L. R. A. 366, 27 Am. St. Rep. 850; Wells Fargo Express Co. v. Fuller (Tex. Civ. App.) 35 S.W. 824, and Louisville & Nashville R. R. Co. v. George W. Hull (Ky.) 68 S.W. 433, 57 L. R. A. 771. In the last case cited, the learned justice who wrote the opinion said: ...
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