The complaint alleges (1) the careless and negligent mutilation of the dead body of plaintiff's husband by continuously running its train back and forth over it for nearly twenty-four hours after the killing, the body all this time lying exposed on the track between the rails; (2) the willful, wanton, and reckless mutilation of the dead body of plaintiff's husband by above recited conduct; (3) for negligent failure to gather up his remains for burial, in that a portion of his remains were not sent home, but lay alongside the track for four days, till gathered up by relatives, who carried them home, reopened the grave and buried these remains with those which had been sent by the defendant company. There is no allegation of wrongful death or negligent killing, in which case the cause of action is created by the statute and is vested in the personal representative. Revisal, 59; Killian v. R. R., 128 N.C. 261.
As the court below granted a nonsuit, if there is any evidence of either of the matters alleged, whether of willful and wanton or merely negligent misconduct, the nonsuit must be set aside, as they are not separate causes of action, and it is not necessary to discuss the testimony (396) further than to ascertain if there is evidence of the cause of action to submit the case to the jury. Matters in defense or in exculpation have no place here, but should be heard on the new trial below.
Was there any evidence of mutilation of the dead body of the deceased *Page 295 except that incident to the killing? If so, his Honor erred in not submitting the case to the jury. In considering this question the courts will accept the evidence in the most favorable light to the plaintiff, and if there is any evidence or if different minds can draw different conclusions, it is the duty of the trial judge to submit the case to the jury. House v. R. R., 131 N., 103; White v. R. R., 121 N.C. 484;Wittkowsky v. Wasson, 71 N.C. 454; Moore v. R. R., 128 N.C. 455. The body was found on the defendant's track — head, pool of blood, hair, eyeballs, etc., near the 4-mile post from Salisbury; arms and legs 75 yards farther in direction of Salisbury, and the body 250 or 275 yards from head in the same direction; hair, blood, and parts of body along track, inside and outside of the rails, for some distance; and evidence that body was dragged and knocked from one side of the track to the other; hair on angle bars or nuts where the rails are joined. The body was stripped of its head, legs, and arms and all clothing; overcoat found near the place, torn and cut; a piece of it was found 1 mile east of the body, and a pocket west of Statesville, 27 miles therefrom, in a different direction. The drawers were picked up on the track one-fourth of a mile west from body. Between 9 o'clock on the evening of the 19th and 6 o'clock on the afternoon of the 20th the body and its fragments lay strewn up and down the track between the rails and were run over by every passing train. During this time fifteen or more trains passed over the defendant's track — six or more during the night and six or more during the day after the defendant's agent discovered the body, and one train was seen to strike the body as it lay upon the track. The watch that the deceased wore was mashed, and the hands pointed to 7 minutes (397) to 9 o'clock. Train No. 12 passed the 4-mile post going towards Salisbury and the scene of the killing about this time, with a full headlight. The track was straight for 1 mile each way and no object was discovered upon the track, as the engineer swore. Train No. 35, from Salisbury, passed No. 12 near that city, and passed the 4-mile post a few minutes thereafter. This last train evidently struck the deceased first. That the body was further mutilated is shown by the fact that the headless body was 250 or more yards east of the 4-mile post; the drawers were found 1 1/4 miles west; a part of the overcoat a mile east; pocket of overcoat 27 miles west; arms 75 yards east and on north side of track; legs still further east and on the south side of track; head near the 4-mile post, and hair all along down the track on angle bars; trunk all rolled up in cinders and dirt, and mangled and mutilated beyond recognition. A dozen or more trains passed over the body, as already stated, and one was seen to strike it. This evidence of all these things can hardly be reconciled with the theory that only one train struck the deceased. *Page 296
The evidence indicates rather that the body was struck after death by different trains going east and west, and that it and parts thereof were thrown hither and thither, backwards and forwards, by the passing -trains going in opposite directions. This was an infringement upon the legal right of the plaintiff to have the body for burial in the condition in which it was when life became extinct. To hold otherwise would be a violation of "rights and duties recognized by the laws and usages of society as growing out of the natural relations of human beings to each other and the divine and human laws which bind society together." Thayer, J., in Fox v. Gordon, 16 Phila. (Pa.), 185.
All the employees of the defendant who participated in the mutilation of the body were retained in the defendant's employment. This (398) was a ratification, and it cannot be heard to say that the act was unauthorized. 12 A. F. (2 Ed.), 36 et seq.
The nonsuit, however, it seems, was granted, not on the ground of lack of evidence to support the allegations of fact in the complaint, but on the ground that they did not constitute a cause of action. As this is the first time that such cause of action has been presented in the history of this Court, it is proper to review somewhat the authorities elsewhere which sustain the proposition that mutilation of a dead body entitles the surviving husband or wife (and if none, the next of kin) to recover compensatory damages for the mental anguish caused thereby, and, in addition, punitory damages if such conduct was willful and wanton or in recklessness of the rights of others.
The right to the possession of a dead body for the purpose of preservation and burial belongs, in the absence of any testamentary disposition, to the surviving husband or wife or next of kin, and when the widow was living with her husband at the time of his death her right to the possession of the husband's body for such purpose is paramount to the next of kin. Larson v. Chase, 47 Minn. 307. A widow has a right of action for the unlawful mutilation of the remains of her deceased husband. Larson v.Chase, supra; 28 Am State, 270; Foley v. Phelps, 37 N.Y. Supp., 471.
While a dead body is not property in the strict sense of the common law, yet the right to bury a corpse and preserve its remains is a legal right which the courts will recognize and protect, and any violation of it will give rise to an action for damages. 8 A. F. (2 Ed.), 834, and cases cited; 13 Cyc., 280, and cases cited. While the common law does not recognize dead bodies as property, the courts of America and other Christian and civilized countries have held that they are quasi property and that any mutilation thereof is actionable. Larson v. Chase, supra.
This is not an action for the negligent killing of the deceased, *Page 297 but an action by the widow [8 A. E. (2 Ed.), 838, and cases (399) cited] for the willful, unlawful, wanton, and negligent mutilation of his dead body. She was entitled to his remains in the condition found when life became extinct; and for any mutilation incident to the killing the defendant would not be liable, but it is liable in law for any further mutilation thereof after death, if done either willfully, recklessly, wantonly, unlawfully, or negligently. Larson v. Chase, supra; Foley v.Phelps, supra; R. R. v. Wilson, 123 Ga. 62; Lindh v. R. R. (Minn.), 7 L.R.A. (N.S.), 1018. Where the rights of one legally entitled to the custody of a dead body are violated by mutilation of the body or otherwise, the party injured may in an action for damages recover for the mental suffering caused by the injury. Perley Mortuary Law, 20; Renihamv. Wright, 125 Ind. 536; Larson v. Chase, supra; Hole v. Bonner,82 Tex. 33[82 Tex. 33].
In Larson v. Chase, 47 Minn. 311, it is said, discussing this cause of action: "Where the wrongful act constitutes an infringement of a legal right, mental suffering may be recovered for, if it is the direct, proximate and natural result of the wrongful act. It was early settled that substantial damages might be recovered in a class of torts where the only injury suffered is mental, as, for example, an assault without physical contact. So, too, in actions for false imprisonment, where the plaintiff was not touched by the defendant, substantial damages have been recovered, though physically the plaintiff did not suffer any actual detriment. In an action for seduction substantial damages are allowed for mental sufferings, although there be no proof of actual pecuniary damages other than the nominal damages which the law presumes. The same is true in actions for breach of promise of marriage. Wherever the act complained of constitutes a violation of some legal right of the plaintiff which always in contemplation of law causes injury, he is entitled to recover all damages which are the proximate and natural consequence (400) of the wrongful act. That mental suffering and injury to the feelings would be the ordinary and proximate result of knowledge that the remains of a deceased husband had been mutilated is too plain to admit of argument." This case cites Meagher v. Driscoll, 99 Mass. 281, where a father recovered damages for mental anguish in digging up and removing the body of his child. Chase v. Larson, supra, is quoted and followed by many cases, among them Foley v. Phelps, 37 N.Y.S., 471. "Where the injury inflicted upon the plaintiffs was an unlawful and unwarranted interference with the right of decent burial, and such conduct was wanton or malicious or the result of gross negligence or reckless disregard of the rights of others, exemplary damages may be awarded." Wright v. Hollywood, 112 Ga. 884. This whole subject *Page 298 is fully reviewed, with full citation of authorities sustaining the right of action for compensatory damages for reckless indifference to the rights of others, by Judge Dodge in the late case (1905) of Koerber v. Patek,123 Wis. 462-467. In Lombard v. Lennox, 155 Mass. 70, it is said: "If the ordinary and natural consequence of the tort is to cause an injury to the feelings of the plaintiff, and if the acts are done willfully or with gross carelessness of the rights of the plaintiff, damages may be recovered for mental sufferings." To same purport, 1 Sedg. Dam. (8 Ed.), secs. 43-47; 1 Suth. Dam., secs. 95 et seq. The defendant also owed the plaintiff the duty to gather the body and its fragments and prepare the same for burial, and negligent failure to do so was an infringement upon her legal rights, and therefore actionable. Commonwealth v. Susquehanna Coal Co., 5 Kulp, 195 (Pa. cases, 1889); Scott v. Riley, 40 Leg. Int., 382 (Pa. case). Parts of the body were left along the track and gathered up by the father on the Monday following.
It is no answer to such negligence or indifference to say that the defendant did not remove the body from the track because the (401) section master was waiting for the coroner. Humanity and decency required that the body and its scattered members should be reverently picked up, laid off the track in some near-by spot and sheltered by a covering from the sun and flies and dust and irreverent eyes, and protected from the dogs by some better agency than, according to the testimony, the volunteer aid of small boys attracted thither by curiosity, but who showed more respect for humanity than those who represented this defendant. On this condition of affairs being reported to the proper official, he should have seen that such steps were promptly taken as were required by decency and the respect shown in all civilized communities to the dead. It could in no wise aid the investigation of the coroner to expose the headless body on the track beneath the passing trains, becoming bergrimed [begrimed] with cinders and dust beyond recognition, nor was there excuse for leaving the other portions of the body uncollected and scattered up and down the track, and for days even after a part of the body was sent home. Besides, there was negligence in keeping the body for eleven hours waiting for a coroner, when Salisbury was only 4 miles distant. The president of the defendant company was unfortunately killed on its tracks not long since. Was his body thus kept on the track to be run over by passing trains all day long, waiting for the coroner?
The above facts, if sustained on the trial, will entitle the plaintiff to recover damages for mental anguish for such indignities to the body of her husband, and punitive damages also, if the jury find that such conduct was willful and wanton or in reckless indifference to the rights and feelings of the plaintiff and to their own duties. The jury should, bow *Page 299 ever, be cautioned (as in actions for delay in delivery of telegrams concerning sickness and death) to carefully dissociate this from the plaintiff's grief at learning of the death of her husband, for this action does not concern that phase of the case. Nor is the plaintiff entitled to recover anything for grief at seeing the condition of the body in the coffin. She knew, or her friends should have (402) told her, of the condition of the remains, and she herself is to blame that she chose to look in upon them. It may have been a natural impulse, but the defendant is not responsible for the mental anguish resulting therefrom.
Respect for the dead is an instinct that none may violate. The democracy of death is superior to the command of kings. Rizpah became forever famous among her kind when she defied the King of Israel, who would treat the bodies of her dead with contempt. Sophocles has immortalized Antigone, who vindicated the like sentiment of human nature as a higher law than that of her sovereign.
The deceased may have moved in the humbler walks of life, but to the plaintiff he was husband and the father of her children. It was her right, old as time, as broad as humanity, and as deep as the heart of man, that his mortal remains should be treated with due respect. So far as the defendant, through its agents, recklessly, willfully, or negligently failed to do this, it has violated her rights under the law. What damages will compensate her for the mental anguish the defendant's conduct has caused her, and what would be proper punitory damages for the recklessness, negligence, or indifference of its agents (if proven), is a matter for a jury of her countrymen to determine, subject to the supervision of a just judge, that an excessive sum be not assessed.
This action is brought by the widow of an employee of the Southern Railway Company. It is brought against the corporation and not against any of its employees. Employees of railroads render arduous and usually faithful service and are subject to many dangers, some of which cannot be avoided and some that can and should be. That they render faithful service when living is no excuse for indignities to their bodies when dead. The engineers on these passing trains could not risk their trains by stopping without orders. The responsibility for keeping this body on the track, with the attendant and revolting details, rests not with them, but on some one "higher up."
HOKE, J., concurring. (403)