Whitehair v. Highland Memory Gardens, Inc., No. 16247

CourtSupreme Court of West Virginia
Writing for the CourtMILLER
Citation327 S.E.2d 438,174 W.Va. 458
Parties, 53 A.L.R.4th 383 Mulvina WHITEHAIR v. HIGHLAND MEMORY GARDENS, INC.
Decision Date01 March 1985
Docket NumberNo. 16247

Page 438

327 S.E.2d 438
174 W.Va. 458, 53 A.L.R.4th 383
Mulvina WHITEHAIR
v.
HIGHLAND MEMORY GARDENS, INC.
No. 16247.
Supreme Court of Appeals of West Virginia.
March 1, 1985.

Page 439

[174 W.Va. 459] Syllabus by the Court

1. "The trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Syllabus Point 3, Chapman v. Kane Transfer Co., Inc., 160 W.Va. 530, 236 S.E.2d 207 (1977). (Citations Omitted).

2. A cause of action exists for negligently or intentionally mishandling or losing a dead body, even when its disinterment and reinterment are authorized.

3. A cause of action for negligent or intentional mishandling of a dead body does not require a showing of physical injury or pecuniary loss. Mental anguish is a sufficient basis for recovery of damages.

Daniel V. Lane, Clarksburg, for appellant.

Berry, Waters, Warner & Harris, Boyd L. Warner, Clarksburg, for appellee.

MILLER, Justice:

The plaintiff appeals this suit which seeks damages for the mishandling and loss of several bodies during their exhumation and reburial. The Circuit Court of Upshur County granted defendant's motion to dismiss on the ground that the complaint failed to state a claim upon which relief could be granted. For the reasons set out, we reverse the judgment.

Because this case was dismissed under Rule 12(b)(6) for failure to state a claim upon which relief can be granted, we apply the traditional standard set out in Syllabus Point 3 of Chapman v. Kane Transfer Co., Inc., 160 W.Va. 530, 236 S.E.2d 207 (1977):

"The trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 [78 S.Ct. 99, 101-102, 2 L.Ed.2d 80] (1957)."

See also Flowers v. City of Morgantown, W.Va., 272 S.E.2d 663 (1980); John W. Lodge Distrib. Co. v. Texaco, Inc., 161 W.Va. 603, 245 S.E.2d 157 (1978). For purposes of ruling on a Rule 12(b)(6) motion to dismiss, the facts as set out in the plaintiff's complaint are deemed to be true. Sticklen v. Kittle, W.Va., 287 S.E.2d 148, 157 (1981); Mandolidis v. Elkins Indus., Inc., 161 W.Va. 695, 717, 246 S.E.2d 907, 920 (1978); John W. Lodge Distrib. Co., 161 W.Va. at 605, 245 S.E.2d at 158. The complaint reveals the following facts.

In January, 1980, the defendant, Highland Memory Gardens, entered into a contract with the West Virginia Department of Highways to relocate bodies buried in the Old Baptist Cemetery in Buckhannon, West Virginia. According to the complaint, this removal was done in an incredibly careless manner. The plaintiff asserts that the remains of her sister and two aunts were lost or misplaced after removal, and that the defendant failed to remove all of the remains of her cousin. She also alleges that the defendant refused to remove the reasonably accessible remains of her uncle and [174 W.Va. 460] father, which presumably now rest somewhere under the new highway constructed

Page 440

through the cemetery. Furthermore, despite its assurances that it would do so, the defendant failed to notify the plaintiff of when the disinterment would take place, so that she could be present.

All of these actions and omissions are alleged to be not only negligent but wilful, wanton and reckless, and resulting in great mental anguish and suffering on the part of the plaintiff. No pecuniary loss or physical injury is alleged. There is no dispute that the defendant had lawful authority to disinter and reinter these bodies pursuant to its contract with the State. The plaintiff's sole challenge is to the manner in which these acts were performed.

This case presents a question of first impression in this State as to whether a person can recover damages for mental anguish caused by the intentional, reckless or negligent mishandling of a relative's remains where the removal itself is lawful. Our previous cases authorizing injunctions and the recovery of damages are not directly applicable, because they involved wrongful removals. See Sherrard v. Henry, 88 W.Va. 315, 106 S.E. 705 (1921); England v. Central Pocahontas Coal Co., 86 W.Va. 575, 104 S.E. 46 (1920); Ritter v. Couch, 71 W.Va. 221, 76 S.E. 428 (1912).

The plaintiff seeks recovery for the intentional infliction of emotional distress, sometimes known as the tort of outrage, a cause of action recognized in Syllabus Point 6 of Harless v. First National Bank in Fairmont, W.Va., 289 S.E.2d 692 (1982): "One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm." The facts alleged in the complaint might state a cause of action on this theory. A number of courts have held that intentional misconduct involving the disposition of corpses can create a cause of action for intentional infliction of emotional distress. 1 However, independent of the claim of the tort of outrage, the complaint seeks to recover damages for emotional distress by virtue of the defendant's negligent mishandling of the disinterment and reburial. It is this cause of action that appears to be the main focus of the complaint.

A brief historical survey of the law may be helpful. Under the early common law in England, matters relating to the burial and preservation of dead bodies were within the exclusive jurisdiction of the ecclesiastical courts, so that no action for damages would lie for injuries or indignities inflicted upon a corpse, or for interference with the right of burial. Infield v. Cope, 58 N.M. 308, 311, 270 P.2d 716, 718 (1954); P. Jackson, The Law of Cadavers 126 (2d ed. 1950); 25A C.J.S. Dead Bodies § 8(4) at 516 (1966). Remedies were afforded, however, if any element of trespass to real or personal property appeared in the molestation of the remains of the dead. Infield v. Cope, supra; Pierce v. Proprietors of Swan Point Cemetery, 10 R.I. 227, 236, 237 n. 1 (1872); P. Jackson, supra, at 126 n. 16.

In this country, where we have no ecclesiastical courts, the law has long recognized a "quasi-property" right in the survivors to control the disposition of a loved

Page 441

[174 W.Va. 461] one's remains. This right has been discussed in a number of our earlier decisions. In England, 86 W.Va. at 577-78, 104 S.E. at 47, for instance, we observed that:

"It is conceded that at the common law there was no right of property in a dead body, and that once interred it became a part of the soil where laid; and in England the protection of sepulcher was generally controlled by the Ecclesiastical law. 2 Blackstone, 428; Meagher v. Driscoll, 99 Mass. 281, 96 Am.Dec. 759. In this country we have no Ecclesiastical law controlling the subject. The right however to bury a corpse and to preserve the remains is a legal right which the courts of this country recognize and protect; and this right is regarded as a quasi right of property. 17 Corpus Juris, p. 1139; 8 Ruling Case Law, p. 684; State v. Highland, 71 W.Va. 87, 76 S.E. 140. And the right, according to the authorities in this country, exists in near relatives, and is cognizable in courts of law as well as in equity, and so long as the right of interment exists it may be vindicated by them in such courts."

See also Sherrard, 88 W.Va. at 319-20, 106 S.E. at 707; Ritter, 71 W.Va. at 226-28, 76 S.E. at 430; State v. Highland, 71 W.Va. 87, 89-90, 76 S.E. 140, 141 (1912).

The quasi-property rights of the survivors include the right to custody of the body; to receive it in the condition in which it was left, without mutilation; to have the body treated with decent respect, without outrage or indignity thereto; and to bury or otherwise dispose...

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32 practice notes
  • Coleman v. Sopher, No. 23943.
    • United States
    • Supreme Court of West Virginia
    • November 20, 1997
    ...would have known." In response to Sopher's inquiry, we briefly will address this issue. In Whitehair v. Highland Memory Gardens, Inc., 174 W.Va. 458, 460-61, 327 S.E.2d 438, 440-41 (1985), we observed that "[i]n this country, where we have no ecclesiastical courts, the law has long recogniz......
  • Board of Educ. of Hancock County v. Slack, No. 16555
    • United States
    • Supreme Court of West Virginia
    • March 1, 1985
    ...such other places that the bond-issuing authority may designate, provide sufficient authority to permit the bonds to be registered at the [174 W.Va. 458] place of payment. Duplicate lists of the registered bonds can be kept at both the State Treasurer's office and the Chemical Bank, with th......
  • Cochran v. Securitas Sec. Servs. USA, Inc., No. 4–15–0791.
    • United States
    • United States Appellate Court of Illinois
    • August 3, 2016
    ...distress without physical injury for negligent mishandling of a corpse by a mortuary”); Whitehair v. Highland Memory Gardens, Inc., 174 W.Va. 458, 327 S.E.2d 438, 443 (1985) (“A cause of action for negligent or intentional mishandling of a dead body does not require a showing of physical in......
  • Courtney v. Courtney, No. 20122
    • United States
    • Supreme Court of West Virginia
    • December 19, 1991
    ...W.Va. 681, 379 S.E.2d 485 (1989); Price v. Halstead, 177 W.Va. 592, 355 S.E.2d 380 (1987); Whitehair v. Highland Memory Gardens, Inc., 174 W.Va. 458, 327 S.E.2d 438 (1985); Sticklen v. Kittle, 168 W.Va. 147, 287 S.E.2d 148 (1981). With this standard in mind, we address the merits of each cl......
  • Request a trial to view additional results
32 cases
  • Coleman v. Sopher, No. 23943.
    • United States
    • Supreme Court of West Virginia
    • November 20, 1997
    ...would have known." In response to Sopher's inquiry, we briefly will address this issue. In Whitehair v. Highland Memory Gardens, Inc., 174 W.Va. 458, 460-61, 327 S.E.2d 438, 440-41 (1985), we observed that "[i]n this country, where we have no ecclesiastical courts, the law has long recogniz......
  • Board of Educ. of Hancock County v. Slack, No. 16555
    • United States
    • Supreme Court of West Virginia
    • March 1, 1985
    ...such other places that the bond-issuing authority may designate, provide sufficient authority to permit the bonds to be registered at the [174 W.Va. 458] place of payment. Duplicate lists of the registered bonds can be kept at both the State Treasurer's office and the Chemical Bank, with th......
  • Cochran v. Securitas Sec. Servs. USA, Inc., No. 4–15–0791.
    • United States
    • United States Appellate Court of Illinois
    • August 3, 2016
    ...distress without physical injury for negligent mishandling of a corpse by a mortuary”); Whitehair v. Highland Memory Gardens, Inc., 174 W.Va. 458, 327 S.E.2d 438, 443 (1985) (“A cause of action for negligent or intentional mishandling of a dead body does not require a showing of physical in......
  • Courtney v. Courtney, No. 20122
    • United States
    • Supreme Court of West Virginia
    • December 19, 1991
    ...W.Va. 681, 379 S.E.2d 485 (1989); Price v. Halstead, 177 W.Va. 592, 355 S.E.2d 380 (1987); Whitehair v. Highland Memory Gardens, Inc., 174 W.Va. 458, 327 S.E.2d 438 (1985); Sticklen v. Kittle, 168 W.Va. 147, 287 S.E.2d 148 (1981). With this standard in mind, we address the merits of each cl......
  • Request a trial to view additional results

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