Harrell, Allen W.

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Dead Bodies -- Recovery for Wrongful Interference with or Neglect

University of North Carolina School of Law

NORTH CAROLINA LAW REVIEWVolume 30 | Number 3 Article 124-1-1952Dead Bodies -- Recovery for Wrongful Interferencewith or NeglectAllen W. HarrellFollow this and additional works at: http://scholarship.law.unc.edu/nclrPart of the Law CommonsThis Note is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina LawReview by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact law_repository@unc.edu.Recommended CitationAllen W. Harrell, Dead Bodies -- Recovery for Wrongful Interference with or Neglect, 30 N.C. L. Rev. 299 (1952).Available at: http://scholarship.law.unc.edu/nclr/vol30/iss3/12NOTES AND COMMENTSasking the court to'direct the jailer to perform his ministerial duty as anofficer of the court and surrender the prisoner to the state authorities.Combined with this request would have to be a prayer for an orderdirecting the state authorities to take him into custody.Should the prisoner already be in a state prison when he realizes theconsequences of the delay in transfer, he may petition for a writ of habeascorpus when the time spent in the state prison lus the period of deten-tion in the county jail after trial equals the total sentence imposed, lessgood conduct allowances, on the ground that he has completed serviceof his sentence.27 And, although there is no authority for such a course,no good reason appears why he could not petition the court for a writof mandamus directing his release.Two steps could be taken immediately without legislative or judicialaction, which would effect a partial remedy to this problem of wastedtime. The prison department could arrange for more frequent trips tojails from which it gets road camp prisoners, or it could arrange to becalled when prisoners are awaiting transfer.28 And, with careful preser-vation of prisoners' rights, a system of prompt waiver of appeal rightsin proper cases would serve to eliminate time wasted while the prisoneris waiting for the expiration of the appeal period. A general tighteningup of all of the procedures involved between arrest and commencementof sentence would immediately effect a saving of time for state prisonerstoo often delayed en route from arrest to punishment, and would payfor itself in the resulting decrease in county penal expenditures.HARPER JOHNSTON ELAM, III.Dead Bodies-Recovery for Wrongful Interference with or NeglectNorth Carolina is in accord' with most jurisdictions in holding thatthere is a quasi-property right in the body of a dead person for purposesof interment. The surviving spouse has the paramount right to the body;if there is no surviving spouse, the right goes to the next of kin. Aninterference with the right to possess the body and bury it is a breach ofduty which may make the wrongdoer liable for damages including mentalanguish. 2 Generally, only the person having the right of burial maymaintain action for wrongs to the body.3" N. C. GEN. STAT. §17-3 (1943) ; Clark v. Surprenant, 94 F. 2d 969 (9th Cir.1938) ; Alexander v. Posey, 32 Ala. App. 494, 27 So. 2d 237 (1946) ; Johnson v.Lindsey, 89 Fla. 143, 103 So. 419 (1925) ; Whalen v. Cristell, 161 Kan. 747, 173P. 2d 252 (1946) ; State ex rel. Murphy v. Wolfer, 127 Minn. 102, 148 N. W. 896(1914)." The assumption is made, of course, that the saving to the prisoners wouldjustify the added expense.1 Kyles v. Southern Ry., 147 N. C. 394, 61 S. E. 278 (1908).'Larson v. Chase, 47 Minn. 307, 50 N. W. 238 (1891); Kyles v. Southern Ry.supra note 1; Koerber v. Patek, 123 Wis. 453, 102 N. W. 40 (1905) ; 25 C. J. S.,Dead Bodies §§2-3, 8 (1941).'Stephenson v. Duke University, 202 N. C. 624, 163 S. E. 598 (1932). SeeNote 19 CORN. L. Q. 108, 111 (1933).19521NORTH CAROLINA LAW REVIEWWhile North Carolina has consistently held this right to be a propertyright, the cases have not been in accord as to the reasons for conferringsuch right nor as to the party possessing the right. The mother of ason whose body had been mutilated has been denied the right to sue fordamage suffered as a direct result of the wrongful mutilation.4 InStephenson v. Duke University,5 the Court held that the statute of dis-tributions no longer determined who possesses the right to the body,6and spelled out its adherence to the majority theory: that the right topossess the body, and therefore, to maintain action for injuries thereto,grows out of the duty to bury the body.7 Yet, in Morrow v. Cline,swithout any discussion of the burial duty theory, the right to sue formutilation of their father's body was conferred upon minor children.9In several respects the use of the duty to bury as the theoretical basisfor the right to maintain action for wrongs to the body leads to confusedreasoning and undesirable results. If the wrongdoer's act makes burialimpossible, so that there is no duty of burial on the plaintiff normallyhaving such duty, may the plaintiff nevertheless maintain an actionagainst the wrong doer?1O When a person without the duty to do soburies a mutilated body, he is legally entitled to recover of the estate ofthe deceased for expenses incurred in performing the burial,"1 therebydiminishing the property available for distribution. Should not thedistributees, therefore, be entitled to sue the wrongdoer whose injuryto the body made interment more expensive?If the right to maintain action for wrongs to the body is made to restupon the theory that the right grows out of the duty of burial, the es-' Stephenson v. Duke University, supra note 3; Floyd v. Atlantic Coast LineRy., 167 N. C. 55, 83 S. E. 12 (1914).202 N. C. 624, 163 S. E. 598 (1932).'In Floyd v. Atlantic Coast Line Ry., 167 N. C. 55, 83 S. E. 12 (1914), it washeld that there could be no question as to the father's exclusive right as he by thestatute of distributions was entitled to all of the personal property of the deceased.The Steplinson case clearly reversed this holding-the statute does not apply.I The established rule is that the right in the dead body grows out of the dutyof burial. Stephenson v. Duke University, 202 N. C. 624, 163 S. E. 598 (1932) ; 15Am. JUR. 831 (1938).Quaere: Do next of kin, as such, have a legal duty to bury their dead? Thecommon law casts the duty of burial on the person under whose roof death occurred.17 C. J. 1142 (1919). The estate of the deceased is liable for funeral expenses.Ray v. Honeycutt, 119 N. C. 510, 26 S. E. 127 (1896). A search of the authoritieshas revealed no legal duty of burial on next of kin other than spouses and parents.8 211 N. C. 254, 190 S. E. 207 (1937).' Quaere: Do minors have a legal duty to bury their dead?10 See Finley v. Atlantic Transport Co., 220 N. Y. 249, 115 N. E. 715 (1917).Where plaintiff's father died at sea and defendant's employees embalmed the bodyso that it could have been kept without danger to the living, and the deceased hadample funds to defray the expense of shipment home, his address being known, butdefendant's employee had the body thrown overboard, plaintiff was entitled to re-cover. There was a duty on defendant to deliver the body. See Bonaparte v.Fraternal Funeral Home, 206 N. C. 652, 175 S. E. 137 (1934) where a widow re-covered punitive damages for the wrongful withholding of her husband's body.21 See Ray v. Honeycutt, 119 N. C. 510, 26 S. E. 127 (1896).[Vol. 3,0.NOTES,.AND COMMENTSsential injury involved which is the outrage to the sensibilities of closekin is ignored and the person most hurt may be denied recovery'2-having no right because he has no duty of burial. In fact, the right topossess the body may not grow out of the duty to bury it,' 3 but the con-verse may be true.1 4 It is natural that someone should-by virtue ofintimate relationship or for other good reason-have a preferential rightto the body. But why should a preferential right in one survivor clothewrongdoers with immunity to action for mental anguish caused othersurvivors? It is submitted that the better theory upon which to basethese cases is this: There is in the surviving spouse, children, parentsand other close kin'15 a right to have the body of the deceased treatedwith due respect; an interference with that right is a breach of dutyand the wrongdoer may be held liable to any or all of them who sufferinjury.' 6 Such a rationale avoids the technical difficulties inherent inthe quasi property-burial duty theory and is more in accord with theends of justice.17ALLEN W. HARRELL.1. "Obviously, in cases of this character, any pecuniary loss to plaintiff mustusually be merely trifling. The great injury done consists in the outrage upon thesensibilities .... " Koerber v. Patek, 123 Wis. 453, 464, 102 N. W. 40, 44 (1905).In a dissenting opinion in Floyd v. Atlantic Coast Line Ry., 167 N. C. 55, 62,83 S. E. 12, 15 (1914), Clark, C. J., said: "This is a tort pure and simple, and thewife is entitled to recover for it just as she has recovered in actions for failure todeliver a telegram whereby she as well as her husband has suffered mental anguish."He noted that by the very nature of the situation the mother is the person who mostnaturally would suffer mental anguish in mutilation cases.1 "The right had its origin in sentiment, in affection for the dead, in religiousbelief in some future life," O'Donnell v. Slack, 123 Cal. 285, 289, 55 Pac. 906, 907(1899).9 Where the deceased's wife was absent and failed to assume the trust incidentto her right, a waiver was implied; the right of custody descended immediately tothe next of kin-the father of the deceased-and he, having the custody of the body,had the duty of burial. Southern Life and Health Ins. Co. v. Morgan, 21 Ala. App.5, 105 So. 161 (1925)." In Boyle v. Chandler, 3 Harr. 323, 138 Atl. 273 (Del. 1927), the husband andchildren of the deceased were permitted to maintain action. See Note, 19 CoRN. L. Q.108, 112 (1933) which suggests that the immediate family be allowed a right ofaction. In Koerber v. Patek, 123 Wis. 453, 458, 102 N. W. 40, 42 (1905), speakingof the right in the dead body, the court said: "The person having charge of itcannot be considered as the owner.... He holds it only as a sacred trust .. . acourt of equity might control the exercise of those rights by one relative with dueregard to the interest of others ...."In Koerber v. Patek, supra note 15, it was said that there is no right moresacred to the individual than the right to bury the dead, none where the court needless hesitate to impose upon a willful violator the uttermost consequences of hisact. In Larson v. Chase, 47 Minn. 307, 312, 50 N. W. 238, 240 (1891) the court,commenting on a case in which defendant had dug up the body of plaintiff's child,noted that the recovery was made to rest upon the trespass to the land and said:"It would be a reproach to law if a plaintiff's right to recover for mental anguishresulting from the mutilation or other disturbance of the remains of his deadshould be made to depend upon whether in committing the act the defendant alsocommitted a technical trespass upon plaintiff's premises, while everybody's commonsense would tell him that the real and substantial wrong was not the trespass onland but the indignity to the dead." It would seem equally a reproach to law ifrecovery is made to depend upon whether plaintiff was under a duty to bury thebody.17 In Matthews v. Forrest, 235 N. C. 281, 285, 69 S. E. 2d 553, 556 (1952),1952]

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Dead Bodies -- Recovery for Wrongful Interference with or Neglect

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