Pollard v. Phelps, 26229.

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtSUTTON, Judge.
Citation193 S.E. 102,56 Ga.App. 408
PartiesPOLLARD v. PHELPS.
Docket Number26229.
Decision Date23 September 1937

193 S.E. 102

56 Ga.App. 408

POLLARD
v.
PHELPS.

No. 26229.

Court of Appeals of Georgia, Second Division

September 23, 1937


Syllabus by the Court.

1. While it is well settled that for mere negligence one cannot recover damages for mental pain and anguish unless there has been damage to person or purse, it is equally well established that for a wanton and willful tort or for a reckless disregard of the rights of others, equivalent to an intentional tort by the defendant, the injured party may recover for the mental pain and anguish suffered therefrom.

(a) In such a case exemplary damages may be awarded, and it is not necessary that they be pleaded eo nomine.

(b) While at common law there can be no property in a dead body, the right to its possession and disposition is a quasi property right which the courts will recognize and enforce, and, in the absence of testamentary disposition, the right of preservation and burial, to receive the body in the same condition in which it was when death supervened, belongs to the husband or wife, or, if none, to the next of kin.

(c) The unauthorized mutilation of the dead body of a husband gives a right of action to the widow.

(d) Ordinarily the only duty which a railway company owes to a trespasser upon or about its property is not to injure him willfully or wantonly after his presence has been discovered, and this principle of law applies to the duty of a railway company towards a dead body which happens to be upon its tracks.

(e) Where it was alleged that the body of the plaintiff's deceased husband remained after death upon the line of railway of the defendant after the homicide had occurred from an unknown cause, that the body was visible for a distance of a mile in either direction, and that the defendant willfully and wantonly ran over, mutilated, and mangled the body, thereby causing her great mental pain and suffering, a cause of action was set out, and the court did not err in overruling a general demurrer to the petition.

2. The evidence, while showing that as a result of the acts of the defendant in running its train over and mutilating the body of the plaintiff's deceased husband, she suffered mental pain and anguish, was not sufficient to authorize the jury to find that the defendant acted willfully or wantonly or with a reckless disregard of her rights, equivalent to an intention to commit a tort. The court erred in overruling the general grounds of the motion for new trial. The special grounds are discussed in the opinion.

Error from Superior Court, Randolph County; C. W. Warrill, Judge.

Suit by Mrs. Ida Lou Phelps against H. D. Pollard, receiver of Central of Georgia Railway Company. Judgment for plaintiff, defendant's motion for a new trial was overruled, and defendant brings error.

Reversed.

In action against railroad for wantonly running over and mutilating dead body of plaintiff's husband where count for wrongful death was stricken, notwithstanding plaintiff failed to also specifically strike her prayer to that extent, failure to charge that suit was for wrongful death was not error as to defendant.

Mrs. Ida Lou Phelps brought suit against H. D. Pollard, receiver of Central of Georgia Railway Company; the petition, after amendment and after dismissal of one count, alleged that she was the wife of Robert Phelps at the time of his death, having intermarried with him in Randolph county, Ga., in the year 1912; that the Railway Company has a line of railway and an office, agent, agency, and place of business in Randolph county; that said receiver operates the railway and employs servants, agents, and employees for cooperating, and was doing so at the time of the death of her husband who was killed upon the defendant's line of railway West of Pachitla Station in Randolph county, at a point near the milepost upon said line of railway marked M 111 and S 303, and between said milepost and the blowpost for Pachitla Station; that at said point the line of track is straight, and a person or body may be easily seen and clearly seen for a distance of a mile or more in either direction; that on or about September 23, 1935, her husband's death occurred, and his body remained after death upon the track of the said defendant at said point, which point is approximately three or four hundred yards from Pachitla Station and Pachitla Crossing, and that her husband's body was upon said track about 7 o'clock in the evening when the eastbound train of defendant is due at said station; that said eastbound train struck the body of her husband at about said hour at that point; that upon striking the body no attempt was made to stop the engine or cars by the servants, agents, or employees of said train, but they continued to run the train completely over and upon the body, mutilating it by crushing the head, cutting off and crushing the arms and hands, stripping the clothing from the body, the shoes from the feet, and scattering the parts of the body along the right of way of the track for a hundred yards or more; that the engineer and servants of defendant, after running the train over the body, stopped the train at Pachitla Station, examined the engine of the train, noted blood thereon and bits of the clothing torn from the body, and other circumstances sufficient to put them on notice that it was the body of a human being over which they had run; that nevertheless they failed to give an alarm, [193 S.E. 104] make a report, or notify any one in the vicinity or otherwise of their act in running over said body, and, although having gone back down the track and having viewed the mutilated and torn body of her husband, they failed to make a report or notify any one of their act in so running over the body; that on the following morning, about 6 o'clock, a westbound train of the defendant came along and passed over the bloody body, clothing, and mangled remains; that the servants, agents, and employees of the defendant in charge of said train observed the body, the mutilated remnants thereof, and the clothing, and further mutilated and mangled the body; that thereafter on the same day the servants, agents, and employees of the defendant passed over the body in a handcar or motor vehicle operated upon said track, viewed the mangled remains of the body and made no report thereof to any one of the said occurrence; that the body remained on the track until vultures began to feed thereupon and to further mangle, mutilate, disfigure, and tear the body; that the body was interred in Cuthbert by the authorities of Randolph county before the plaintiff had any knowledge of the death of her husband, and she had no opportunity to view the same or perform the last burial rites due to loved ones; that said treatment by defendant's employees of the body of her husband caused the plaintiff great mental pain, anguish, and suffering, which required her to take to her bed and caused her great mental and nervous shock which impaired her physical condition and health, from which she will never recover; that she is entitled to judgment for damages for the wrongful, wanton, and willful treatment, mutilation, and mangling, and the neglect of his body after death, as well as for the great mental pain and anguish, impairment, mental and nervous shock occasioned her by the condition and treatment accorded to her husband's body after his death, and for his funeral expenses. She prayed judgment for the mutilation, mangling, and neglect of his body after death, and for the mental pain, anguish, impairment of health, nervous and bodily shock to her caused by said treatment, in the sum of $20,000. By amendment she prayed for exemplary damages for the wrongful tortious treatment of the body of her husband and the wrong done her thereby. Certain demurrers (referred to in the opinion) filed by the defendant were overruled, and exceptions pendente lite were certified. The defendant filed an answer denying the substantial allegations of the petition.

On the trial the material evidence was substantially as follows: The husband of the plaintiff was last seen in the afternoon preceding the alleged running over of his dead body on the night of the same day. One witness testified that on returning to her home near where the mangled remains of the body were found she discovered the deceased asleep on her front porch, but that without saying a word he arose and walked off in the direction of the railroad. How he met his death was not disclosed, but the circumstantial evidence was such that a jury would be authorized to find that after death his body had been run over by a train. His identification, though slight, was established. The mangled remains were found the next morning strewn up and down the track for about an eighth of a mile, but so removed from a crossing that it could not be said that the body at the time it was first struck by the engine was within 50 feet of a crossing. There was no eyewitness to the running over of the body.

Mrs. J. C. Phillips testified that her home was about 50 yards from the tracks and that she was on her porch the night the first train is supposed to have passed about 7:30 o'clock; that the train stopped at Pachitla Station, which is about a mile from the scene of the mutilation, and that she saw three men leave the train and go up to the engine, saw them with a lantern down at the front wheels on her side of the train; that they sat down as if examining the wheels; that the train made a peculiar noise like grinding rock, that the next morning she saw the fragments of the body and 'phoned the deputy sheriff and the coroner; that buzzards had destroyed most of the body and the various parts had been dragged up and down the track and terribly mangled, bones and intestines were along the track; that the next train came the following morning about seven o'clock; that a motor car used by section hands came along with two men in it but did not...

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3 practice notes
  • Lumley v. Pollard, 27981.
    • United States
    • United States Court of Appeals (Georgia)
    • 15 Febrero 1940
    ...as next of kin, for pain and suffering because of the mutilation of her son's body after the alleged homicide. In Pollard v. Phelps, 56 Ga.App. 408 (1), 193 S.E. 102, it was held: "While it is well settled that for mere negligence one cannot recover damages for mental pain and anguish ......
  • Phelps v. Pollard, 26776.
    • United States
    • United States Court of Appeals (Georgia)
    • 26 Abril 1938
    ...of Cuthbert, for defendant in error. GUERRY, Judge. This is the second appearance of this case in this court. See Pollard v. Phelps, 56 Ga.App. 408, 193 S.E. 102. The court there held that the plaintiff's petition set forth a cause of action, as against general demurrer, for the willful and......
  • Hale v. Hale, 15101.
    • United States
    • Supreme Court of Georgia
    • 7 Marzo 1945
    ...intentional tort by the defendant, the injured party may recover for the mental pain and anguish suffered therefrom.' Pollard v. Phelps, 56 Ga.App. 408(1), 193 S.E. 102. Counsel for the defendant recognizes the above principle, but insists that in the instant case there was 'absolutely no e......
3 cases
  • Lumley v. Pollard, 27981.
    • United States
    • United States Court of Appeals (Georgia)
    • 15 Febrero 1940
    ...as next of kin, for pain and suffering because of the mutilation of her son's body after the alleged homicide. In Pollard v. Phelps, 56 Ga.App. 408 (1), 193 S.E. 102, it was held: "While it is well settled that for mere negligence one cannot recover damages for mental pain and anguish ......
  • Phelps v. Pollard, 26776.
    • United States
    • United States Court of Appeals (Georgia)
    • 26 Abril 1938
    ...of Cuthbert, for defendant in error. GUERRY, Judge. This is the second appearance of this case in this court. See Pollard v. Phelps, 56 Ga.App. 408, 193 S.E. 102. The court there held that the plaintiff's petition set forth a cause of action, as against general demurrer, for the willful and......
  • Hale v. Hale, 15101.
    • United States
    • Supreme Court of Georgia
    • 7 Marzo 1945
    ...intentional tort by the defendant, the injured party may recover for the mental pain and anguish suffered therefrom.' Pollard v. Phelps, 56 Ga.App. 408(1), 193 S.E. 102. Counsel for the defendant recognizes the above principle, but insists that in the instant case there was 'absolutely no e......

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