Wilson v. St. Louis & San Francisco Railroad Company
Decision Date | 08 January 1912 |
Parties | LANE C. WILSON, by Next Friend, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant |
Court | Missouri Court of Appeals |
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.
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;
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 ...
To continue reading
Request your trial-
Gill v. Sovereign Camp of Woodmen of World
... ... cover the whole case. Shanahan v. St. Louis Transit ... Co., 109 Mo.App. 228; Evers v. Wiggins Ferry ... Mo. 71; Dorsey v. Railway, 175 Mo.App. 150; ... Wilson v. Railway, 160 Mo.App. 649. (a) The court ... did not err ... suit is brought, or it must be shown that the company had ... some agent or officer in the county transacting ... ...
-
The Peoples Bank v. Stewart
... ... checks of Roley & Company. This was the only fact which ought ... to have been ... 292; Cole v. McDaniel, 33 Mo. 363; ... McCord v. Railroad, 21 Mo.App. 95; Darrett v ... Donnelly, 38 Mo. 492; State ... ...