Wilson v. St. Louis & S. F. R. Co.

• Citation: 142 S.W. 775,160 Mo. App. 649
• Court: Court of Appeal of Missouri (US)
• Decision Date: 08 January 1912
• Parties: WILSON v. ST. LOUIS & S. F. R. CO.

142 S.W. 775

160 Mo. App. 649

WILSON v. ST. LOUIS & S. F. R. CO.

Springfield Court of Appeals. Missouri.

January 8, 1912.

1. ACTION (§ 27)—TRANSPORTATION OF DEAD BODY—INJURY TO—FORM OF ACTION.

An action by a husband against a carrier for negligence in handling the corpse of his wife in transportation, and for exemplary damages for its wanton and willful negligence in the same, against plaintiff's objection and in disregard of his rights and feelings, is an action in tort, the reference in the petition to a contract for transportation being mere matter of inducement.

2. DEAD BODIES (§ 1)—RIGHTS OF POSSESSION AND DISPOSITION—RIGHT OF ACTION FOR INJURY.

While a dead human body is not property in a commercial sense, a surviving husband has a quasi property right to the dead body of his wife, which entitles him to its possession and control for the purpose of proper and decent burial, and he may maintain an action against a carrier for negligent and willful injury to the body while in transportation.

3. DAMAGES (§ 48)—MENTAL ANGUISH—IN GENERAL.

The allowance of damages for mental anguish, as a general rule, is limited to actions where the plaintiff has received some injury to his person, or where some legal right has been so invaded as naturally to cause grief or distress of mind.

4. DAMAGES (§ 49)—ELEMENTS—MENTAL ANGUISH—WILLFUL OR WANTON WRONG.

The general rule that mental anguish unaccompanied by bodily injury is not an element of damages does not apply in cases of willful and wanton wrong, and those committed with malice or intention to cause mental distress.

5. CARRIERS (§ 135) — DAMAGES—ELEMENTS—MENTAL ANGUISH—INJURY TO DEAD BODY.

The body of plaintiff's wife was taken as baggage for transportation by a carrier, and plaintiff accompanied it in the baggage car, and at a stopping place the baggageman stood on the box containing the coffin and pulled heavy trunks from the top of the car and let them fall with full force on the box so that they would bound to the floor of the baggage car, the plaintiff at the time pleading with the baggageman to be careful and not to handle the body in such a rough and inhuman manner. Held, in plaintiff's action for damages for injury to the body, that he was entitled to recover damages for mental anguish.

6. TRIAL (§ 251)—INSTRUCTIONS—CONFORMITY TO PLEADINGS AND ISSUES.

Where the petition in an action to recover for injury to the dead body of plaintiff's wife while in transportation alleged certain specific acts of negligence, an instruction that, if the body was in good condition when received for transportation and in bad condition when delivered, plaintiff was entitled to recover, not only for the specific negligence alleged, but for any other negligence, unless defendant showed an entire absence of negligence on its part, was erroneous.

7. TRIAL (§ 296) — INSTRUCTIONS — ERROR CURED BY OTHER INSTRUCTIONS.

Error in an instruction in an action for damages for negligence in handling the dead body of plaintiff's wife while in transportation by permitting the jury, upon proof that the body was in good condition when received and

not when delivered, to find for the plaintiff, not only for specific acts of negligence alleged, but for any negligence unless defendant showed an entire absence of negligence, is cured by instructions that, unless the condition of the body when delivered was due to defendant's rough handling, nothing could be allowed as exemplary damages or for mental anguish.

8. DAMAGES (§ 9) — NOMINAL DAMAGES — RIGHT TO RECOVER.

Where plaintiff, in an action against a carrier for alleged negligent handling of the dead body of his wife in transportation, shows an invasion of his legal rights, he is entitled to recover nominal damages at least.

9. TRIAL (§ 296) — INSTRUCTIONS — ERROR CURED BY OTHER INSTRUCTIONS.

In an action to recover for negligent, rough handling of the dead body of plaintiff's wife while in transportation, an instruction that if the body was received in good condition and was delivered in bad and injured condition, plaintiff was entitled to recover unless defendant showed entire absence of negligence, though failing to state what plaintiff was entitled to recover for, when read with instructions that plaintiff could recover only such sum as would compensate him for damage to the box, and what he was compelled to expend to prepare the body for burial, unless defendant's alleged negligent acts were willful, fairly submitted the question of damage from mere negligence, and was unobjectionable.

10. TRIAL (§ 296) — INSTRUCTIONS — ERROR CURED BY OTHER INSTRUCTIONS.

An instruction in an action for damages from alleged willful negligence in handling a dead body while in transportation, submitting as a willful tort the act of defendant in putting other baggage on top of the box, not supported by evidence that such act was wrongful, is not prejudicial when read with defendant's instructions that the right to recover for mental anguish was conditioned upon the finding that the condition of the body was due to defendant's rough handling.

11. CARRIERS (§ 135)—TRANSPORTATION OF DEAD BODY—ACTION FOR INJURIES—DAMAGES.

Where a dead body was delivered by a carrier in bad condition, due to its rough handling while in the baggage car, the plaintiff's compensatory damages were limited to the amount he was compelled to expend to prepare the body for burial.

12. TRIAL (§ 256)—INSTRUCTIONS—REQUESTS —DAMAGES.

Error in an instruction given in an action for alleged willful negligence in handling the dead body of plaintiff's wife while in transportation, not limiting the plaintiff's damages for injury to the body to the amount which he was entitled to recover, was not reversible error where defendant did not ask to have the instruction limit the amount of recovery.

13. CARRIERS (§ 137)—TRANSPORTATION OF DEAD BODY—INJURY TO—ACTION—INSTRUCTIONS—DAMAGES.

An instruction in an action for damages for alleged willful negligence in handling the dead body of plaintiff's wife, permitting a finding for the plaintiff without defining the elements of damage that the jury might consider, or limiting them to the evidence to determine the amount, was not reversible error.

14. APPEAL AND ERROR (§ 1064)—REVIEW—HARMLESS ERROR—INSTRUCTIONS—VERDICT.

Where plaintiff, in an action for willfully negligent handling of the dead body of his wife while in transportation, claimed compensatory damages of $3,750, including expenses, humiliation, and mental anguish, an instruction permitting him to recover that amount for mental anguish alone, in view of a verdict for mental anguish of $500, was not reversible error.

15. TRIAL (§ 252)—INSTRUCTIONS—CONFORMITY TO EVIDENCE.

Where the evidence in an action for alleged willful negligence in roughly handling a dead body in transportation showed that the handling complained of was committed by defendant's baggageman, an instruction that defendant would not be liable unless the act was shown to have been the act of its servants, acting in the scope of their employment, was properly refused.

Appeal from Circuit Court, Howell County; W. N. Evans, Judge.

Action by Lane C. Wilson, by next friend, against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

W. E. Evans, W. J. Orr, and J. H. Orr, for appellant. I. N. Jett, for respondent.

GRAY, J.

The plaintiff for his cause of action alleges the following facts: The appellant as a common carrier undertook to transport a casket containing the body of the dead wife of respondent from West Plains, in this state, to Jamestown, Ind.; "that the defendant by and through its agents, servants, and employés, wholly disregarded its duties under said contract of transportation, and in wanton and willful disregard of the rights and feelings of plaintiff, at divers times and places between West Plains and Springfield willfully, wantonly, and maliciously, and in an inhuman manner threw, stacked, and piled upon said body heavy baggage, to wit, heavy trunks, having the appearance of trunks containing salesmen's samples; that said trunks and other baggage were piled and stacked upon and around said body as high as the ceiling of the baggage car. Plaintiff states that at Springfield, Mo., said defendant, by and through its agents, servants, and employés, willfully, wantonly, and maliciously, and in a grossly inhuman manner, pulled and dislodged said heavy baggage from the top of said stacks or piles as aforesaid, causing them to fall upon the box containing the body of plaintiff's deceased wife, causing them to bounce or bound from said box to the floor of the baggage car. Plaintiff states that the defendant by and through its agents, servants, and employés so used the said corpse as a bounding or bouncing board as aforesaid in the plaintiff's presence in the willful, wanton, malicious, and inhuman manner aforesaid, and in wanton, willful, and malicious disregard of the plaintiff's repeated entreaties to desist. Plaintiff states that in consequence of the aforesaid willful and grossly insulting and negligent conduct upon the part of the defendant by and through its agents, servants, and employés said box containing said body was bursted, the lid torn loose, the screws placed in the lid to hold same on the box were torn out and bent down, and the whole outer surface of the box badly defaced and otherwise damaged. Plaintiff states that by reason of the willful, wanton, malicious, insulting, and inhuman acts of the defendant by and through its agents, servants, and employés as aforesaid, plaintiff was made to suffer great grief, pain, mental anguish, humiliation, nervous excitement, and loss of sleep. Plaintiff further states that by reason of the aforesaid and other grossly wrong and negligent conduct of the defendant by and through its agents, servants, and employés, said body of plaintiff's said wife reached Jamestown, Ind., in bad and unsightly...