Wilson v. St. Louis & San Francisco Railroad Company

• Decision Date: 08 January 1912
• Citation: Wilson v. St. Louis & San Francisco Railroad Company, 142 S.W. 775, 160 Mo.App. 649 (Mo. App. 1912)
• Parties: LANE C. WILSON, by Next Friend, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant
• Court: Missouri Court of Appeals

142 S.W. 775

160 Mo.App. 649

LANE C. WILSON, by Next Friend, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, Springfield

January 8, 1912

Appeal from Howell Circuit Court.--Hon. W. N. Evans, Judge.

AFFIRMED.

Judgment affirmed.

W. F Evans and W. J. Orr for appellant.

(1) A dead body is not property. Williams v. Williams, L R. 20 Ch. Div. 652, 21 Am. Law Dig. 508; Guthrie v Weaver, 1 Mo.App. 141; Meagre v. Driscoll, 99 Mass. 284; Pierce v. Proprietors, 10 R. I. 227; Weld v. Walker, 103 Mass. 422; Litteral v. Litteral, 111 S.W. 872; Long v. Railroad, 86 P. 289; Wynkoop v. Wynkoop, 42 Pa. St. 293; Keys v. Konkel, 119 Mich. 550; Griffith v. Railroad, 23 S.C. 25, 2 Blackstone Com. 429; Perley Mortuary Law, 23. (2) Mental anguish is not an element of damages for a breach of contract. Connell v. Tel. Co., 116 Mo. 196; Spahn v. Railroad, 116 Mo. 617. (3) Punitive damages are not allowable in a case of this kind under the proof. Hoagland v. Amusement Co., 170 Mo. 335. (4) Instructions Nos. 1, 2 and 4 given on behalf of respondent do not correctly declare the law of this case. Hoagland v. Amusement Co., 170 Mo. 335. (5) Appellant's request for instruction marked "B" should have been given. Wood on Master and Servant, sec. 286.

I. N. Jett for respondent.

(1) A surviving husband has a qualified property in the dead body of his wife, which the law will recognize and protect. Guthrie v. Weaver, 1 Mo.App. 141; Boggart v. Indianapolis, 13 Ind. 134; Renihan v. Wright, 125 Ind. 536; In re Beckman Street, 4 Brad. Sur. (N. Y.) 503; Koerber v. Patek, 123 Wis. 462; Larson v. Chase, 47 Minn. 307; Foely v. Phelps, 37 N.Y.S. 471; Beam v. Cleveland, 97 Ill.App. 24; 8 Amer. and Eng. Ency. of Law (2 Ed.), 834; 13 Cyc. 280. (2) Mental anguish may be considered as an element of damages when connected with bodily injury or when the wrong complained of was accompanied by circumstances of malice, insult or inhumanity. West v. Forrest, 22 Mo. 334; Trigg v. Railroad, 74 Mo. 147; Crutcher v. Railroad, 132 Mo.App. 319; Harless v. S.W. Mo. Elec. R., 123 Mo.App. 22; Carter v. Oser, 134 Mo.App. 158; Smith v. Railroad, 122 Mo.App. 88; Shellabarger v. Morris, 115 Mo.App. 566; Carmody v. Transit Co., 122 Mo.App. 349; Knight v. Railroad, 120 Mo.App. 327. (3) Where the injury complained of results in any actual or compensatory damages and is done wilfully and intentionally it is a proper case for punitive or exemplary damages. Lambert v. Drug Co., 119 Mo.App. 693; Harlan v. Wabash, 117 Mo.App. 537; Beck v. Railroad, 129 Mo.App. 21; Calcuterra v. Iovaldi, 123 Mo.App. 347; Baxter v. Magil, 127 Mo.App. 398; Glover v. Railroad, 129 Mo.App. 574; White v. Railway, 132 Mo.App. 346; Coffee & Spice Co. v. Welborn, 153 Mo.App. 651; Summers v. Keller, 152 Mo.App. 626; Happy v. Pritchard, 111 Mo.App. 6; Knight v. Railroad, 12 Mo.App. 311. (4) The appellant's instruction marked "B" was properly refused by the trial court, for the reason that neither in his pleadings nor proof was there any issue raised which this instruction was designed to cover. Northup v. Ins. Co., 47 Mo. 435; Guinotte v. Ridge, 46 Mo.App. 254; Musser v. Adler, 86 Mo. 445; Higgins v. Railrod, 43 Mo.App. 547; Mize v. Glenn, 38 Mo.App. 98; Kennedy v. Railway, 128 Mo.App. 297; Holland v. Vinson, 124 Mo.App. 417; Heidbrink v. Railways, 133 Mo.App. 40; Kinlen v. Railway, 216 Mo. 163. (5) That a reviewing court may disturb a verdict on the ground that it is against the evidence or the result of passion or prejudice, the preponderance of the evidence against the verdict must be so strong as to raise the presumption of prejudice and passion on the part of the jury. Snyder v. Railroad, 85 Mo.App. 298; Price v. Evans, 49 Mo. 396; Spohn v. Railroad, 87 Mo. 74; Walton v. Railroad, 49 Mo.App. 620; Emply v. Railroad, 45 Mo.App. 522; Garnett v. Greenwell, 92 Mo. 120; State v. Primm, 98 Mo. 368.

OPINION

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, Indiana; "that the defendant by and through its agents, servants and employees, 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 salesman'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, Missouri, said defendant by and through its agents, servants and employees 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 defendant by and through its agents, servants and employees 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 employees 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 employees 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 employees, said body of plaintiff's said wife reached Jamestown, Indiana, in bad and unsightly condition, to-wit: badly purging, blood running from mouth, face and neck badly swollen, and otherwise showing that it had been violently disturbed. Plaintiff states that he was thus forced to take the box containing said body, and said body, into the presence of near relatives who had gathered for the funeral, in this damaged and unsightly condition, as aforesaid, by reason of the willful, wanton, malicious and grossly inhuman conduct of the defendants, by and through its agents, servants and employees, as aforesaid, and that he was thus forced to incur extra expense in preparing the body for interment, and that he has suffered and will suffer great grief, pain, mental anguish, humiliation and loss of sleep; all to plaintiff's damage in the sum of seven thousand five hundred dollars ($ 7500), three thousand seven hundred and fifty dollars ($ 3750) compensatory and three thousand seven hundred and fifty dollars ($ 3750) exemplary damages, for which sums he prays judgment."

Respondent at the time of the death of his wife, resided on a farm about three miles from West Plains. Her parents resided at Jamestown, Indiana, and it was decided to take the remains there for burial. Under the rules of the defendant, dead bodies are transported as baggage, and the corpse was accepted and carried as such. It was necessary to transfer at Springfield, and also at St. Louis. The corpse was in a casket and the casket in a box, such as are usually used for such purposes.

The defendant filed a general denial, and the cause was tried before a jury in Howell county on the 14th day of July, 1911, resulting in a verdict in favor of the plaintiff, awarding him $ 500 compensatory damages, and $ 1000 exemplary damages. A judgment was rendered on this verdict, and the defendant appealed to this court.

It is appellant's first contention that the plaintiff's cause of action is for a breach of contract and his rights are to be measured accordingly. It is plain that the action is in tort. It is true the petition refers to a contract, but this is only matter of inducement. [Boling v. Railroad, 189 Mo. 219, 88 S.W. 35; Book v. Railroad, 75 Mo.App. 604.]

The next reason assigned for reversal, is that a corpse is not property, and that no action will lie to recover damages for injuries thereto. This is true when speaking of property in a commercial sense. [Guthrie v. Weaver, 1 Mo.App. 136; Litteral v. Litteral, 131 Mo.App. 311, 111 S.W. 872.] But in the broader meaning of the term, the husband has what the courts name a quasi property right in the dead body of his wife, which entitles him to the possession and control of the same for the purpose of proper and decent burial. [Litteral v. Litteral, supra; Koerber v. Patek, 123 Wis. 453, 102 N.W. 40, 68 L.R.A. 956.]

In Koerber v. Patek, supra, the Supreme Court of Wisconsin said "For the purposes of this case we shall not deem it necessary to consider whether a corpse can be, in any respect, property. From the authorities above cited, and from original reason, the conclusion seems to us irresistible that in the nearest relative of one dying, so situated as to be able and willing to perform the duty of ceremonious burial, there vests the right to perform it, and that this is a legal right, which, as said in some...