Neff v. St. Paul Fire & Marine Ins. Co.

• Decision Date: 03 December 1990
• Docket Number: No. 90-125,90-125
• Citation: Neff v. St. Paul Fire & Marine Ins. Co., 799 S.W.2d 795, 304 Ark. 18 (Ark. 1990)
• Court: Arkansas Supreme Court
• Parties: Janet S. NEFF, Appellant, v. ST. PAUL FIRE & MARINE INSURANCE CO., Appellee.

Page 795

799 S.W.2d 795

304 Ark. 18

Janet S. NEFF, Appellant, v.ST. PAUL FIRE & MARINE INSURANCE CO., Appellee.

No. 90-125.

Supreme Court of Arkansas.

Dec. 3, 1990.

Mary E. Green, Fayetteville, for appellant.

Kelly Carithers, Fayetteville, for appellee.

HAYS, Justice.

AppellantJanet Neff brought this damage suit against appelleeSt. Paul Fire & Marine Insurance Co., insurer of Washington County Regional Medical Center, alleging that by delivering the body of her stillborn fetus to her husband, the hospital had committed a tort of outrage.The trial court held that no cause of action was stated and we agree.

On March 20, 1987, Janet S. Neff, appellant, was admitted to Washington Regional Medical Center with complications in pregnancy.The treating physician, Dr. Harmon Lushbaugh, could detect no fetal heart tones and an ultrasound confirmed there was no fetal heart motion or fetal activity.Labor was induced and appellant passed the fetus and placenta spontaneously.The seventeen-week-old fetus was nonviable.

About 6:00 p.m. on March 21, 1987, the hospital released the fetus to Mrs. Neff's husband, Charles Neff, for burial.Later that evening, Charles Neff was arrested and charged with driving while intoxicated.Both Charles Neff and the fetus were taken into custody by the Madison County sheriff.

Appellant's complaint alleges that next morning Claudette Warren, a registered nurse on the hospital staff, came to see appellant in her room, that Warren told appellant her husband and the fetus were being held in jail in Huntsville and advised appellant to go to Huntsville to retrieve the body.Whether appellant acted on this advice is not disclosed but the baby was buried appropriately on March 22, 1987.¹

On May 24, 1989, appellant filed suit against appellee, St. Paul Fire & Marine Insurance Company, as the statutory substitute defendant for the hospital.Appellant alleged negligent and intentional infliction of emotional distress.St. Paul moved to dismiss the complaint for failure to state facts upon which relief could be granted, pursuant to ARCP Rule 12(b)(6).The motion was supported by the affidavits of Claudette Warren and Ruby Milligan, the mother of Charles Neff.Appellant responded by submitting her own supporting affidavit.St. Paul submitted the affidavit of Dr. Lushbaugh and medical records related to appellant's hospital stay.

St. Paul's motion to dismiss was treated as a motion for summary judgment, ARCP Rule 56.In a letter opinion dated September 27, 1989, the trial court concluded that even assuming the truth of appellant's allegations, the actions of the hospital failed to support a claim for the tort of outrage.Appellant appeals from that order.

The trial court, in its letter opinion, noted initially that Arkansas does not recognize the tort of negligent infliction of emotional distress, citing Mechanics Lumber Co. v. Smith, 296 Ark. 285, 752 S.W.2d 763(1988).Appellant takes no exception to that ruling, but does object to the trial court's denial of her claim of an intentional tort.However, it was proper for the trial court to decide in the first instance whether the conduct of the hospital was so atrocious and outrageous as to permit recovery.Harris v. Arkansas Book Co., 287 Ark. 353, 700 S.W.2d 41(1985);Restatement (Second) of Torts§ 46, Comment h (1965);Givens v. Hixson, 275 Ark. 370, 631 S.W.2d 263(1982).

We first recognized the tort of outrage--the intentional infliction of emotional distress--in M.B.M. Co. v. Counce, 268 Ark. 269, 596 S.W.2d 681(1980).The conduct complained of must be "so outrageous in character, and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society."While this court has recognized the type of conduct must be decided on a case by case basis, the stringent standard in Counce has prevailed.Mechanics Lumber Co. v. Smith, 296 Ark. 285, 752 S.W.2d 763(1988);Ingram v. Pirelli Cable Corp., 295 Ark. 154, 747 S.W.2d 103(1988).

Appellant's claim of outrage has two aspects.The first is her objection to the hospital releasing the fetal remains to her intoxicated husband; and second, her objection to Nurse Warren's advice that she recover the body from the Madison County sheriff.We believe the trial court was correct in finding no cause of action for the tort of outrage.The hospital did nothing more than it had a right to do under the law--to deliver the fetus to either parent.In fact, a refusal to do so might well have been a breach of duty.Additionally, it simply reported the subsequent development to the appellant and suggested a course of action she might take.However one chooses to view the unfortunate episode, the emotional distress which it occasioned was brought about primarily by the actions of Mr. Neff rather than by the actions of hospital.

Appellant argues that the hospital's release of the body to Charles Neff was improper.But we are given no authority for that conclusory allegation.Appellant maintains the hospital should have consulted with her first, particularly in view of her husband's intoxication.We find no statute dealing with the right to possession of a corpse or control of a burial.Under relevant case law it usually belongs to a surviving spouse, then to the next of kin in the order of their relationship to the decedent--children of proper age, parents, brothers and sisters, and so forth.22A Am.Jur.2dDead Bodies§ 25(1988).Our holding in Teasley v. Thompson, 204 Ark. 959, 165 S.W.2d 940(1942), is in accord....