Medical College of Georgia v. Rushing

• Docket Number: 54.
• Decision Date: 22 March 1907
• Parties: MEDICAL COLLEGE OF GEORGIA v. RUSHING.
• Court: Georgia Court of Appeals

57 S.E. 1083

1 Ga.App. 468

MEDICAL COLLEGE OF GEORGIA v. RUSHING.

No. 54.

Court of Appeals of Georgia

March 22, 1907

Syllabus by the Court.

The plaintiff, in his petition, alleged that his sick wife was received by the defendant for treatment in its hospital where the sick and injured were received for treatment, for compensation; that she died at said hospital; and that the defendant, without his knowledge or consent, mutilated and cut up the body "to gratify professional curiosity, or for some other unlawful purpose." Held, that the petition stated a cause of action.

(a) The right to the possession of the dead body of his wife for preservation and burial belongs to the husband. Any unlawful and unauthorized mutilation of the remains would be an invasion of this right, for which an action for damages would lie.

(b) In such an action, damages will be allowed for mental suffering and injury to the feelings, although no actual pecuniary loss is alleged or proved.

The Medical College of Georgia is not a public institution of the state because it is designated by law as a branch of the University of Georgia; and it is liable for the torts of its agents in the conduct of its business and within the scope of their authority. Therefore, where it conducts a hospital for the treatment of the sick and injured for compensation, it is liable in damages for the unlawful and unauthorized mutilation of the remains of a patient who died at the hospital; and this would be true whether the college or the hospital was compensated for the board, lodging, and treatment of such patient, or not.

Public eleemosynary institutions are liable for the torts of their agents, the same as private business corporations, if they have any property, or are in receipt of any income, not exclusively devoted to public charity, out of which a judgment against them can be satisfied.

Error from City Court of Richmond County; Eve, Judge.

Action by one Rushing against the Medical College of Georgia. Judgment for plaintiff, and defendant brings error. Affirmed.

W. H Fleming, for plaintiff in error.

F. W Capers, for defendant in error.

HILL C.J.

This was an action for damages for the unlawful mutilation of the body of the wife of the plaintiff, without his knowledge or consent; an autopsy having been performed at the "City Hospital," owned and controlled by the defendant, the Medical College of Georgia. The family physician of the plaintiff, who was treating the wife at home, concluded that it was best to remove her to the city hospital, where everything possible could be done for her recovery. She died at the hospital. Plaintiff was absent from home during this whole time, and his children demanded of the authorities of the college and hospital the body of their mother, in order that it might be prepared for burial. After some delay the body was finally delivered to an undertaker for the children and taken to the plaintiff's home, when it was discovered that it had been mutilated and cut up by the defendant "to gratify professional curiosity, or for some other unlawful purpose." The damage alleged was mental suffering and injury to the feelings, caused by the wrongful act of mutilating the remains. Demurrers, general and special, were filed to the petition, and were overruled. The special demurrer, so far as material, was met by an amendment; and we direct our attention to the grounds of general demurrer.

1. It is not insisted before us by the learned and distinguished counsel for the plaintiff in error that the demurrer should have been sustained on the ground that the husband had no legal interest in or right to the body of the wife, so as to enable him to maintain an action for damage for its mutilation, on the ground that a dead body is not property. The dictum of Lord Coke that a corpse is "caro data vermibus" (flesh given to the worms), and is "nullius in bonis," does not authorize the conclusion that those who are entitled to its possession for purposes of decent burial have no rights to and in it which the law recognizes and will protect. Whatever may have been the rule in England under the ecclesiastical law, in this country it has been universally held that there is a quasi right of property in a dead body which the law will protect; and it would be discreditable to any system of law not to provide a remedy for the violation of such right. Hackett v. Hackett, 18 R.I. 155, 26 A. 42, 19 L.R.A. 558, 49 Am.St.Rep. 762. This is so held in a well-considered case by the Supreme Court of Minnesota, where, in an action brought by a widow for the unlawful mutilation of the body of her dead husband, an order overruling the demurrer to the complaint was affirmed; the court holding that the right to the body "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." Larson v. Chase, 47 Minn. 307, 50 N.W. 238, 14 L.R.A. 85, 28 Am.St.Rep. 370. And the Appellate Division of the Supreme Court of New York, in Foley v. Phelps, 1 A.D. 551, 37 N.Y.S. 471, uses the following language, which is very aptly in point: "The right is to the possession of the corpse in the same condition it was in when death supervened. It is the right to what remains when the breath leaves the body, and not merely to such a hacked, hewed, and mutilated corpse as some stranger, an offender against the criminal law, may choose to turn over to an afflicted relative." The Supreme Court of this state, in a very interesting and elaborate opinion by Mr. Justice Lumpkin, after reviewing the whole question and the authorities, both in England and in this country, declares that "a widow has an interest in the unburied body of her deceased husband which the courts will recognize." Louisville & Nashville R. Co. v. Wilson, 123 Ga. 62, 51 S.E. 24. And in the case of Jacobus v. Children of Israel, 107 Ga. 518, 33 S.E. 853, 73 Am.St.Rep. 141, it is held that, in a suit for damages for wrongfully disinterring a dead body, exemplary damages may be awarded, if the facts and circumstances of the case justify it. It is not, however, necessary to enter into any extended discussion of the law referring to burial and the disposition of the body after death. This work has been so thoroughly done by Mr. Justice Lumpkin in the decision, supra, that we can add nothing to its completeness or to its interest. Nor do we deem it necessary to multiply authorities to establish the right of the husband to the sacred remains of his wife, untouched and unmutilated, or his redress in punitive damages for any wrongful and unlawful interference with such right. We pass to the consideration of the other questions made by the demurrer.

2. It is insisted that an action cannot be maintained against the defendant, because, under the laws of this state, it is a branch of the University of Georgia, and is not liable for the torts of its officers or agents, and that all of its property is public property, and is not subject to levy and sale. The defendant was originally incorporated by an act of the Legislature, approved December 20, 1828, under the name of the "Medical Academy of Georgia." Acts 1828, p 111. By the terms of this act it was a private corporation, and by its corporate name was authorized "to sue and be sued, plead and be impleaded, answer and be answered unto, in any court of law or equity," and to make and establish its own by-laws, rules, and regulations; and it was also empowered "to have, hold, use and enjoy, purchase, receive and dispose of at pleasure, land, houses, and other property, real and personal, to an amount not exceeding one hundred thousand dollars." By an act approved December 19, 1829 (Acts 1829, p. 107), the name of the corporation was changed to the "Medical Institute of the State of Georgia," and its powers somewhat enlarged in reference to the right of conferring the degree of doctor of medicine upon its students. The act of December 20, 1833, again made a change in the name of the corporation, by giving it the name under which it is now known, to wit, the ""Medical College of Georgia." This act further made an appropriation of $10,000 by the state "for the purpose of enabling the board of trustees of said institute to procure a suitable piece or lot of land, erect thereon such buildings, make such other improvements as may be necessary for the various purposes of a medical college, and to procure a suitable library," etc., "for said institution"; and it also gave to the said institution "fifty lots on the town common of the city of Augusta," said lots to be sold "and the proceeds of said sale paid over to the treasurer of said institution, *** provided, that the...