Wright v. Beardsley

• Decision Date: 19 March 1907
• Court: Washington Supreme Court
• Parties: WRIGHT et ux. v. BEARDSLEY et al.

89 P. 172

46 Wash. 16

WRIGHT et ux. v. BEARDSLEY et al.

Supreme Court of Washington

March 19, 1907

Appeal from Superior Court, Chehalis County; Mason Irwin, Judge.

Action by Samuel Wright and wife against C. A. Beardsley and others. Judgment for plaintiffs, and defendants appeal. Reversed and remanded.

John C. Hogan and W. I. Agnew, for appellants.

Boner &amp Boner and Ben Sheeks, for respondents.

MOUNT J.

The respondents brought this action to recover damages against appellants for the improper burial of a deceased child. They recovered a verdict and judgment for $2,510. From this judgment, the defendants appealed.

The complaint alleged, in substance, that the plaintiffs were husband and wife; that the defendants were copartners doing business as undertakers in the city of Aberdeen; that on December 12, 1905, plaintiffs lost their infant child, and contracted with defendants to bury the body in a decent respectable manner, according to the usual customs and usage in performing burials; that, in pursuance of the agreement defendants took the said body and deposited it in a grave which was then used as the grave of another child, and left the body in a rough coffin without a box and within six inches of the surface of the ground, and on top of the coffin of another child; that after said pretended burial, and without knowledge of the manner of said burial, plaintiffs paid defendants the charges therefor; that, by reason of the failure of defendants to perform their duties under said contract, plaintiffs have been damaged and have been caused to suffer great mental anguish, to their damage in the sum of $5,000. The prayer was for that amount. The defendants interposed a demurrer to this complaint, upon the grounds that there was a defect of parties plaintiff and defendant, and that the complaint fails to state facts sufficient to constitute a cause of action. This demurrer was overruled. Defendants then filed an answer, admitting that plaintiffs were husband and wife, that defendants were copartners in the undertaking business, and that they entered into an agreement to bury plaintiffs' deceased child, but denied all the other allegations of the complaint. As a separate defense, the defendants alleged that they agreed with the plaintiffs to furnish a certain coffin and bury the body of the infant cheaply and temporarily in a lot used for the burial of stillborn infants, and that defendants fully and completely performed the said agreement, and that thereafter the body of said infant was exhumed by plaintiffs, in the presence of one of the defendants, and, at said time, with full knowledge of the manner of said burial, the plaintiffs expressed complete satisfaction, and the body was thereupon reinterred in the same grave. At the close of plaintiffs' evidence, the defendants moved for a directed verdict upon the ground that the evidence was insufficient to sustain a judgment. This motion was denied by the court. Thereafter the court instructed the jury to the effect that, if the jury found for the plaintiffs, they might award plaintiffs actual damages for mental suffering. After verdict the defendants moved for a new trial upon the statutory grounds. This motion was also denied.

It is first contended by appellants that there is a defect of parties plaintiff, but, in view of the allegations in the complaint and the admissions in the answer that the plaintiffs are husband and wife, and that the defendants are copartners, there seems to be no merit in this contention. The persons who are the lawful custodians of a deceased body may maintain an action for its desecration. Dunn & Co. v. Smith (Tex. Civ. App.) 74 S.W. 576; Koerber v. Patek, 102 N.W. 40, 123 Wis. 453, 68 L. R. A. 956. The mother and father certainly may join in such an action.

The question whether the complaint states a cause of action whether the evidence was sufficient to go to the jury, and whether the court erred in instructing the jury that damages might be given for mental anguish of the plaintiffs, are all based upon the same contention, viz., that the action is for damages for a breach of contract, and that mental anguish is not a proper element of damage in such cases. These questions may therefore all be considered together. While it is true that the complaint alleges that a contract was entered into, and that by reason of the failure of defendants to perform their duty under the contract plaintiffs have been damaged, etc., still the facts stated in the complaint and testified to by the plaintiffs show that the action is for a wrong against the feelings of the plaintiffs inflicted by a wrongful and improper burial of their dead; in other words, a tort or injury against the person. In cases of this character, the rule has frequently been applied that damages may be had for mental suffering. Dunn v. Smith, supra; Koerber v. Patek, supra; Larson v. Chase, 47 Minn. 307, 50 N.W. 238, 14 L. R. A. 85, 28 Am. St. Rep. 370; Burney v. Children's Hospital, 169 Mass. 57, 47 N.E. 401, 38 L. R. A. 413, 61 Am. St. Rep. 273; Foley v. Phelps, 37 N.Y.S. 471, 1 A.D. 551. In the case of Koerber v. Patek, supra, the court said: 'Doubtless other illustrations might be suggested, but these suffice to satisfy us that there is neither solecism nor unreason in the view that the right of custody of the corpse of a near relative for the purpose of paying the last rites of respect and regard is one of those relative rights recognized by the law as springing from the domestic relation, and that a willful or wrongful invasion of that right is one of those torts for which...