Louisville & N.R. Co. v. Wilson

• Decision Date: 15 May 1905
• Citation: 51 S.E. 24,123 Ga. 62
• Parties: LOUISVILLE & N. R. CO. v. WILSON.
• Court: Georgia Supreme Court

51 S.E. 24

123 Ga. 62

LOUISVILLE & N. R. CO. v. WILSON.

Supreme Court of Georgia

May 15, 1905

Syllabus by the Court.

A widow has an interest in the unburied body of her deceased husband which the courts will recognize.

Where a declaration alleged that a widow desired to have her husband's body carried by a railroad from the place of death to the place of intended burial; that the route was over the railroad to a junction, and thence by a branch of the same road to the destination; that the agent of the company at the initial point would only sell her transportation for the body to the junction, but told her that the company would carry the body to the place of burial and that at the point of junction she could obtain transportation to the destination; that she paid for such transportation to the junction, and delivered the body, with its accompanying shroud and coffin, to the company; that on arrival at the junction the company's agent had the coffin and body placed on an open platform in the rain, and allowed it to remain there for several hours while waiting for the second train to arrive, and refused, on request of the wife, to have it placed where it would be protected from the weather; and that the coffin and shroud were damaged to the extent of $75, and the body was "soaked and otherwise mutilated"-- held, that the declaration set out a cause of action.

Error from Superior Court, Warren County; P. E. Seabrook, Judge.

Action by P. Wilson against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Jos. B. & Bryan Cumming, for plaintiff in error.

L. D McGregor, Burton Smith, and J. A. Branch, for defendant in error.

LUMPKIN J. (after stating the facts).

Death is unique. It is unlike aught else in its certainty and its incidents. A corpse in some respects is the strangest thing on earth. A man who but yesterday breathed and thought and walked among us has passed away. Something has gone. The body is left still and cold, and is all that is visible to mortal eye of the man we knew. Around it cling love and memory. Beyond it may reach hope. It must be laid away. And the law--that rule of action which touches all human things--must touch also this thing of death. It is not surprising that the law relating to this mystery of what death leaves behind cannot be precisely brought within the letter of all the rules regarding corn, lumber and pig iron. And yet the body must be buried or disposed of. If buried, it must be carried to the place of burial. And the law, in its all-sufficiency must furnish some rule, by legislative enactment or analogy, or based on some sound legal principle, by which to determine between the living questions of the disposition of the dead and rights surrounding their bodies. In doing this the courts will not close their eyes to the customs and necessities of civilization in dealing with the dead and those sentiments connected with decently disposing of the remains of the departed which furnish one ground of difference between men and brutes. It is said that burial in churchyards was introduced into England by Cuthbert, archbishop of Canterbury, in the year 750 A. D. At an early date the church began to take jurisdiction in regard to places of burial and the sepulture of the dead. This jurisdiction gradually became more enlarged and more firmly fixed, until the ecclesiastical courts left little for the common-law courts to decide upon these subjects. Thus it was that Lord Coke said that the burial of a corpse belonged to ecclesiastical cognizance, but the heirs had an action for defacing the monument (1 Inst. 4, 18 B; 3 Inst. 203); and so it was that Blackstone made use of the much quoted expression: "But, though the heir has a property in the monuments and escutcheons of his ancestors, yet he has none in their bodies or ashes; nor can he bring any civil action against such as indecently, at least, if not impiously, violate and disturb their remains when dead and buried. The parson, indeed, who has the freehold of the soil, may bring an action of trespass against such as dig and disturb it; and if any one, in taking up a dead body, steals the shroud or other apparel, it will be felony, for the property thereof remains in the executor, or whoever was at the charge of the funeral." 2 Bl. Com. 429. See Hammond's Ed. 651, and note on page 653.

The subject of the right of burial and the protection of the bodies of the dead arose in the matter of the widening of Beekman street in the city of New York, and was referred to Hon. Samuel B. Ruggles, as referee. He made a learned and elaborate report, which was confirmed by the court. It will be found published in 4 Brad. R. 503 et seq., and from it the following excerpts are taken: "The power thus exercised by the ecclesiastical tribunals was not spiritual in its nature, but merely temporal and juridical. It was a legal secular authority, which they had gradually abstracted from the ancient civil courts, to which it had originally belonged; and that authority, from the very necessity of the case, in the state of New York, must now be vested in its secular courts of justice. The necessity for the exercise of such authority, not only over the burial, but over the corpse itself, by some competent legal tribunal, will appear at once, if we consider the consequences of its abandonment. If no one has any legal interest in a corpse, no one can legally determine the place of its interment, nor exclusively retain its custody. A son will have no legal right to retain the remains of his father, nor a husband of his wife, one moment after death. A father cannot legally protect his daughter's remains from exposure or insult, however indecent or outrageous, nor demand their reburial, if dragged from the grave. The dead, deprived of the legal guardianship, however partial, which the church so long had thrown around them, and left unprotected by the civil courts, will become, in law, nothing but public nuisances; and their custody will belong only to the guardians of the public health, to remove and destroy the offending matter, with all practical economy and dispatch. The criminal courts may punish the body snatcher who invades the grave, but will be powerless to restore its contents. *** The sacred relics of Mt. Vernon may be torn from their 'mansion of rest,' and exhibited for hire in our very midst, and no civil authority can remand them to the tomb. *** It will be seen that much of the apparent difficulty of this subject arises from a false and needless assumption, in holding that nothing is property that has not a pecuniary value. *** The world does not contain a tribunal that would punish a son who should resist, even unto death, any attempt to mutilate his father's corpse, or tear it from the grave for sale or dissection; but where would he find the legal right to resist, except in his peculiar and exclusive interest in the body? The right to the repose of the grave necessarily implies the right to its exclusive possession." The report of the referee has been criticised by a writer in 10 Cent. Law J. 303; but it has been cited with approval by nearly all the courts which have since dealt with the questions there involved. It is said Mr. Ruggles added a note to the original report in explanation of the term "next of kin," stating that it "was not employed for the purpose of denying or questioning the legal right of a surviving husband to bury his wife's remains, or to reinter them if disturbed." Hackett v. Hackett, 18 R.I. 157, 26 A. 42, 19 L.R.A. 558, 49 Am.St.Rep. 762. For those who desire to consult law literature on burial grounds, burials, etc., an extended list will be found in a note to 18 Abb. N.C. 75. In Pierce v. Proprietors of Swan Point Cemetery, 10 R.I. 227, 14 Am.Rep. 667, it was held that, "while a dead body is not property in the strict sense of the common law, it is quasi property, over which the relatives of the deceased have rights which the courts will protect." Potter, J., delivered an able opinion in that case, reviewing the matter both from the standpoint of history and of authority. In Larson v. Chase, 47 Minn. 307, 50 N.W. 238, 14 L.R.A. 85, 28 Am.St.Rep. 370, it is held that "the right to the possession of a dead body for the purposes of preservation and burial belongs, in the absence of any testamentary disposition, to the surviving husband or wife or next of kin. This right is one which the law recognizes and will protect, and for any infraction of it--such as an unlawful mutilation of the remains--an action for damages will lie. In such an action a recovery may be had for injury to the feelings and mental suffering resulting directly and proximately from the wrongful act, although no actual pecuniary damage is alleged or proved." In Bogert v. City of Indianapolis, 13 Ind. 135, it was held that "the bodies of the dead belong to the surviving relatives, in the order of inheritance, as property, and they have the right to dispose of them as such, within restrictions analogous to those by which the disposition of other property may be regulated." In Renihan v. Wright, 125 Ind. 536, 25 N.E. 822, 9 L.R.A. 514, 21 Am.St.Rep. 249, it was held that "where a husband and wife employed undertakers to keep the body of a deceased daughter until they might be ready to inter it, and the defendants negligently took or allowed it to be taken and buried, or otherwise disposed of it, an action for damages would lie." In Doxtator v. Railroad Company (Mich., 1899) 79 N.W. 922, 45 L.R.A. 535, a similar rule was recognized, but a recovery was denied on other grounds. See, also, 6 Am. L. Rev. 182; 8 Am. & Eng. Enc. Law (2d Ed.) 835; Foley v. Phelps, 1 A.D. 551, 37 N.Y.S. 471; Hackett v....