Nichols v. Cent. Vermont Ry. Co.

Citation109 A. 905
Decision Date07 October 1919
Docket NumberNo. 161.,161.
CourtUnited States State Supreme Court of Vermont

Miles, J., dissenting.

Exceptions from Franklin County Court; Eleazer L. Waterman, Judge.

Action by Minnie Nichols against the Central Vermont Railway Company. Judgment for defendant on directed verdict, and plaintiff excepts. Affirmed.

Argued before WATSON, C. J., and POWERS, TAYLOR, MILES, and SLACK, JJ.

C. G. Austin & Sons, of St. Albans, for plaintiff.

John W. Redmond, of Newport, and Chas. F. Black, of Burlington, for defendant.

TAYLOR, J. The plaintiff seeks to recover damages for the claimed negligence of the defendant in handling the dead body of her minor child. The trial was by jury. At the close of the evidence the court directed a verdict for the defendant, and the plaintiff brings the case here for review on exceptions.

The child was a son of the plaintiff by a former marriage and at the time of his death about 8 years of age. The plaintiff and her present husband took the child to the Fanny Allen Hospital for a surgical operation, as a result of which the child died. The body was prepared for burial by an undertaker and placed in a casket, which in turn was inclosed in a box suitable for shipment The burial was to take place at Highgate, and it was intended to take the body by train from Winooski to Cambridge Junction over the defendant's road, and thence over the connecting road to Highgate. The body was taken to the defendant's station at Winooski about an hour before the arrival time of the train plaintiff and her husband were to take. The box was placed upon a truck on the platform at the end of the station towards Burlington. Plaintiff's husband arranged and paid for the transportation of the body to its destination. There was conflict in the testimony as to how the accident complained of occurred. The evidence, in the light most favorable to the plaintiff, tended to show that the truck with the body thereon was left standing at the Burlington end of the platform until the train whistled for the station; that the plaintiff and her husband gathered up their bundles and went out of the station to the platform, preparatory to boarding the train; that immediately the station agent came out and in a hurried manner started with the truck toward the opposite end of the platform; that in doing so he went so close to the edge that one wheel of the truck ran off the platform, tipping the box containing the body with a crash onto the track in the path of the incoming train; that the train was stopped before it reached the place where the truck went off the platform, but the cover of the box containing the casket was broken off, so that it hung by only one screw, and pillows used for packing came out in the fall; that on opening the casket at Highgate it was found that the body was disarranged, the hair "unfixed," and the head bruised, as a result of the accident. Plaintiff testified that she saw the accident and theught the train was going to run over the body. The evidence tended to show that the plaintiff was very much excited, and that the happening of the accident and the consequent injury to the casket and the body occasioned her serious mental pain and suffering.

The grounds of the defendant's motion for a directed verdict can be briefly summarized as follows: (1) The defendant owed the plaintiff no duty in respect of the transportation of the body, she being on the undisputed evidence neither the consignor nor the consignee. (2) It is not permissible to recover damages in an action of this character for mental suffering, in the absence of any evidence tending to show physical injury to the plaintiff or injury to her property. The court sustained the motion on the ground last stated, to which the plaintiff was allowed an exception.'

Concerning the first ground of the motion, it is only necessary to observe that this is not an action founded on contract, but the plaintiff sues for personal damages occasioned by the alleged negligent conduct of the defendant. While it appeared that the plaintiff's husband paid for the transportation of the corpse and was named in the ticket as the escort thereof, she and not her husband was the next of kin of the deceased, and consequently had a right in the body that was invaded by the negligent act of the defendant. It is undoubtedly the law that, while a dead body is not considered as property in the technical sense of the word, yet the law recognizes a right somewhat akin to property, arising out of the duty of the nearest relatives to bury their dead, which autherizes and requires them to take possession of the dead body for the purpose of burial. The right is a personal and exclusive right to the custody and possession of the remains, and, in the absence of testamentary disposition, belongs to the surviving husband or wife, if any, or, if there be none, then to the next of kin. Note, Ann. Cas. 1918D, 733. It is a right which the law will recognize and enforce by appropriate remedy, and includes the right to have the corpse in the same condition in which it was when death supervened. We have no occasion to consider whether the contract relation of plaintiff's husband to the transportation of the corpse would, in the circumstances, enable him to maintain an action for damages; nor is it necessary to the decision of the ease as presented on review to consider whether damages other than for mental suffering are recoverable in an action of this character.

The claim, made for the first time in this court, that the plaintiff, in the circumstances shown by her evidence, was entitled to recover at least nominal damages, is too late to be available. It was not relied upon in opposition to the motion for a directed verdict, and the court disposed of the motion as the question was submitted, solely on the opposing claims as to the right of recovery for mental suffering. The rule that on review the excepting party is confined to points made in the court below is too well established to require an extended citation of autherities. Among the cases where the rule has been applied in similar situations are Grapes v. Willoughby, 93 Vt. 458, 108 Atl. 421; Seaver v. Lang, 92 Vt. 501, 510, 104 Atl. 877; Brown v. Aitken, 88 Vt. 148, 92 Atl. 22, Ann. Cas. 1916D, 1152; Grand Lodge v. City of Burlington, 84 Vt. 202, 208, 78 Atl. 973; Van Dyke v. Grand Trunk Ry. Co., 84 Vt. 212, 240, 78 Atl. 958, Ann. Cas. 1913A, 640.

We come at once to the question presented by the second ground of the motion. It is important to note at the outset the precise scope of the question for decision. Much of the apparent disagreement in the cases relied upon by the parties disappears when the exact question decided in each is observed. Conceding for the purposes of the discussion that the happening of this accident, shocking to the plaintiff's sensibilities as it must have been, and we can readily see that it would naturally occasion acute mental distress, was an invasion of her legal rights, it does not follow that damages for such suffering are necessarily recoverable. The precise question is whether damages for mental suffering independent of physical injury are recoverable when occasioned by the mere negligent conduct of the defendant. It is at once apparent that the inquiry excludes these cases where the mental suffering is occasioned by physical injury, and the still wider range of cases where it is the result of willful or malicious conduct on the part of the wrongdoer.

The current of authority undoubtedly supports the doctrine that, in the absence of a statute, in ordinary actions for negligence there can be no recovery for mental suffering where there is no attendant physical injury. 2 R. C. L. 580. Such is the long and well recognized rule of the common law; the decisions to this effect resting upon the elementary principle that mere mental pain and anxiety are too vague for legal redress, where no injury is done to person, properly, health, or reputation. Southern Express Co. v. Byers, 240 U. S. 612, 36 Sup. Ct. 410, 60 L. Ed. 825, L. R. A. 1917A, 197.

Speaking generally, damages for mental suffering are allowed at common law in the following cases: (1) Where the mental suffering is the natural and proximate result of a physical injury sustained by the plaintiff through the merely negligent act of the defendant. (2) In. actions for breach of the contract of marriage. (3) In cases of willful wrong, especially these affecting the liberty, character, reputation, personal security, or domestic relations of the injured party. To the latter class belong actions for malicious prosecution, slander, libel, and seduction, which involve the element of malice. Summerfield v. Western Union Tel. Co., 87 Wis. 1, 57 N. W. 973, 41 Am. St. Rep. 17; Western Union Tel. Co. v. Rogers, 68 Miss. 748, 9 South. 823, 13 L. R. A. 859, 24 Am. St. Rep. 300. Our own decisions furnish numerous illustrative cases. Thus Bovee v. Danville, 53 Vt. 183, is a leading case of the first class, and Rea v. Harrington, 58 Vt. 181, 2 Atl. 475, 56 Am. St. Rep. 501 (an action for slander), and Gocdell v. Tower, 77 Vt. 01, 58 Atl. 790, 107 Am. St. Rep. 745 (an action for false imprisonment), deal with intentional wrongs. It is conceded by text-writers, and iu nearly all of the decided cases in this country, that the common-law rule respecting the recovery of damages for mental suffering resulting from mere negligence unaccompanied by personal injury is as stated above. It follows that at common law mental suffering, however clearly existent independent of physical injury, is not a proper element of recoverable damages in actions for mere negligence. This doctrine of the common law is the outgrowth of long experience in the administration of the law of negligence. It has been followed in cases of like character by the federal courts and by the courts of last resort in nearly all of the states. It has been...

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