Teasley v. Thompson

• Decision Date: 23 November 1942
• Docket Number: 4-6871
• Citation: 165 S.W.2d 940,204 Ark. 959
• Parties: TEASLEY v. THOMPSON
• Court: Arkansas Supreme Court

165 S.W.2d 940

204 Ark. 959

TEASLEY v. THOMPSON

4-6871

Supreme Court of Arkansas

November 23, 1942

Appeal from Mississippi Circuit Court, Chickasawba District; G. E Keck, Judge; affirmed.

Judgment affirmed.

Zal B. Harrison, G. W. Barham and J. Graham Sudbury, for appellant.

Percy A. Wright, for appellee.

OPINION

HOLT, J.

Grace Thompson, appellee, was the mother of Inez Nelson Cabe, wife of Jim Cabe. Inez Cabe died June 6, 1940, in the home of her mother in Luxora, Arkansas.

September 9, 1940, Grace Thompson sued appellants, undertakers alleging in her complaint, that appellants, by false representations, had secured the body of her deceased daughter for burial and had unlawfully retained possession for a period of seven days, over appellee's protest; that during this time the body deteriorated and was mutilated while in appellant's possession, and that she was deprived of the opportunity to give her daughter's body a Christian burial, and there was a prayer for damages. Appellants answered with a general denial and specifically pleaded as a defense an earlier suit filed by appellee as being res judicata of the issues in the present suit. Appellants also filed a cross-complaint in which they sought judgment for $ 40 for services alleged to have been rendered in removing the body from appellee's home and preparing it for burial. A jury trial resulted in a verdict for appellee in the amount of $ 140 and for appellants on their cross-complaint in the amount of $ 40. This appeal is from the judgment awarded appellee. There is no appeal from the judgment on the cross-complaint.

For a reversal, appellants contend, first, that appellee, Grace Thompson, was not the proper party to bring the suit; second, that the issues here were decided in an earlier suit between the same parties and that their plea of res judicata should have been sustained, and, third, that there was error in giving and in refusing to give certain instructions.

Appellants' first contention that appellee was not the proper party to bring the suit can not be sustained for two reasons.

The facts are that appellants did not raise this point either by demurrer or in their answer. During the trial of the cause, after the testimony of the parties had been concluded and while the court was instructing the jury, appellants for the first time questioned appellee's authority to bring the suit.

The rule is well settled that the question of defect of parties must be raised either by special plea or in the answer, and that it is too late to attempt to raise this question at the end of the trial, as in the instant case. In Tipton v. Phillips, 176 Ark. 308, 4 S.W.2d 507, this court said: "The question of defect of parties was not raised by the appellant in its answer, nor by special plea for that purpose. A defense of defect of parties should be raised by answer or by special plea to that effect at the beginning and not at the end of a lawsuit." Section 1411, Pope's Digest, provides: "The defendant may demur to the complaint where it appears on its face that the plaintiff has not legal capacity to sue," and § 1414 contains this provision: "When any of the matters enumerated in § 1189 (§ 1411, Pope) do not appear upon the face of the complaint, the objections may be taken by answer. If no such objection is taken, either by demurrer or answer, the defendant shall be deemed to have waived the same, except only the objection to the jurisdiction of the court over the subject of the action, and the objection that the complaint does not state facts sufficient to constitute a cause of action."

We are also of the opinion that appellee, on the facts presented was the proper party to bring the suit. While it appears that appellee's daughter, Inez Nelson Cabe, was married at the time of her death, she had spent the greater part of the last year of her life in the home of her mother. During her last illness she was in her mother's home and was administered to and provided for by her mother. During all of her illness, which resulted in her death, her husband manifested not the slightest interest in his wife's welfare, made no inquiry or provisions for her, did not visit her and in fact there was no evidence in this record that he even attended the funeral. Under these circumstances we think it clear that the husband, as surviving spouse, waived any rights to custody, burial and other legal disposition of his wife's body, that he may have had. The general rule as to the rights of the surviving spouse is stated in American Jurisprudence, vol. 15, p. 834, § 9, in this language: "It is generally conceded that on the death of a husband or a wife, the primary and paramount right to possession of the body and to control the burial or other legal disposition thereof is in the surviving spouse, . . . The right of a surviving spouse to control the burial is dependent on the peculiar circumstances of each case, and may be waived by consent or otherwise," and in footnote 11, in support of the text, the author says: "Where the wife is not living with her husband...