(dissenting). I fully agree with my associates that the plaintiff has not made out a case entitling her to recover for injured feelings; but I cannot agree with them that she was not entitled to go to the jury on the main issue in the case, to which the principal part of her evidence related. It is true that some part of her evidence upon the question of damages related to the matter of injured feelings, but there was evidence of other, damages. The case shows, as stated in the majority opinion, “that on opening the casket at Highgate it was found that the body was disarranged, the hair ‘unfixed,’ and the head bruised as a result of the accident. ’ ’ Here is a statement at least showing nominal damages, for the holding of the majority is that the plaintiff as next of kin,-‘.‘had a right in the body, that was invaded by the negligence of the defendant.” The invasion of a legal right always imports some damage, though no pecuniary loss results therefrom. Cole v. Drew, 44 Vt. 49, 8 A. R. 363; Starkey v. Waite, 69 Vt. 193, 37 Atl. 292; Fullam v. Stearns, 30 Vt. 443; Simonds v. Pollard, 53 Vt. 343; Bragg v. Laraway, 65 Vt. 673, 27 Atl. 492; Blackburn v. Ala. Great S. R. R. Co., 143 Ala. 346, 39 South. 345, 5 Ann. Cas. 223; Williams v. Atl. C. L. R. Co., 56 Fla. 735, 48 South. 209, 24 L. R. A. (N. S.) 134, 131 A. S. R. 169; Parker v. Griswold, 17 Conn. 288, 42 A. D. 739; *23McConnel v. Kibbe, 33 Ill. 175, 85 A. D. 265; Laflin v. Willard, 16 Pick. (Mass.) 64, 26 A. D. 629; Webber v. M & E. R. R. Co., 35 N. J. Law, 409, 10 A. R. 253; Bank of Meadville v. Bank of New York, 77 N. Y. 320, 33 A. R. 618; Williams v. Esling, 14 Pa. St. 486, 45 A. D. 710. The law presumes damage from the invasion of a- legal right. Collins v. St. Peters, 65 Vt. 618, 27 Atl. 425. When a breach of duty is shown on the part of the defendant, the plaintiff is entitled to nominal damages, at least. Holden v. Butland Ry. Co., 72 Vt. 156, 47 Atl. 403, 82 A. S. R. 926.
There is no dispute but that the plaintiff’s evidence tended to show a breach of duty which the defendant owed the plaintiff, which entitled her to nominal damages at least. The invasion of her legal rights entitled her to it. The demurrer to the plaintiff ’s evidence should be overruled when it tends to show that he is entitled to recover nominal damages. Patterson v. Blakeney, 33 Ala. 338. But the majority hold that, though this may be so, yet, not having raised the question of nominal damages below, she cannot raise it here on review, and so they confine their consideration of the defendant’s motion to the single question of whether the plaintiff is entitled to recover special damages, and, holding that she is not, sustain the judgment directing the verdict for the defendant. In coming to this decision no consideration is given to the plaintiff’s evidence upon her claim that through the defendant’s negligence the corpse in which she had an interest was materially injured. They cite several recent Vermont cases in support of their holding to the effect that the rule in this State is well settled that the party moving for a directed verdict must state the grounds of his motion, and that the other party must state the grounds of his opposition, and that neither, on review, can stand upon grounds not made below. I do not dispute the rule stated in those cases; but the requirements of the rule are met by the party resisting the motion, when he denies that the motion, taken at its face value, does not show a right to the verdict asked for. No one can claim from the statements in the motion that they entitle the defendant to the verdict ordered by the court, though they may be true.
The motion was as follows: “There is no allegation in the declaration, nor any evidence in the case, tending to show any physical injury to the plaintiff, nor to any property of herself, and it is not permissible to recover damages merely for *24mental suffering in an action of this character, without any evidence tending to show any physical injury.” Assuming everything stated in the motion to be true, that alone does not legally entitle the defendant to a directed verdict. The matter involved in the motion affected the damages only, and not the right to recover. Notwithstanding that the plaintiff failed in the opposition to the motion on the grounds stated in it, still that did not settle the question of the plaintiff’s right to recover in the suit, and she then had the right to go to the jury on the question of the defendant’s liability and her right to recover other damages. The question of the right to recover other damages was not touched by anything alleged in the motion, and, as stated by the majority, the court below disposed of the motion “solely on the opposing claims as to the right to recover for mental suffering. ” No other ground could be considered by the court, for no other grounds were stated in the motion. Spencer v. Potter, 85 Vt. 1, 10, 80 Atl. 821. And yet the case had been tried on the theory and claim of - the plaintiff that she was entitled to recover for an injury to the corpse as well as to her injured feelings.
The motion, of course, raised an important question, not to the right of recovery, but to its extent, and that question was discussed by the parties; but the discussion was in chambers and the record does not show what issue was there discussed. But what was there said is of little importance, for the plaintiff clearly stated her claim to recover for injury to the corpse, in her opening statement, and that claim was supported by nearly all the evidence in the case bearing upon the subject of damages, and very little of such evidence bore upon her claim to recover for damages to injured feelings. Indeed, with very few exceptions, the entire trial was expended upon the question of liability and damage to the corpse, casket, and box enclosing the casket. In view of the opening statement and the evidence in the case, I cannot agree with the majority that the question of the plaintiff’s right to recover at least nominal damages was not raised. Perhaps it was not raised in that exact form; but it was raised by the claim that the plaintiff was entitled to recover damages for an injury to the corpse. It was not only raised during the trial, but it was raised by the plaintiff’s exception to the direction of the verdict and the judgment thereon. Not only was that question raised by the exception, but the question of her right to go to the jury on her evidence tending to show the defendant’s *25liability was also raised by that exception. Fitzsimons v. Twigg, 86 Vt. 229, 232, 84 Atl. 811.
This case is to be distinguished from one where the ground of the opposition to the motion is in the nature of an admission that the motion would be well taken, but for something appearing in the case, not directly raised in issue by the pleadings, and where the court might well understand that the matter of opposition, not specifically raised, was not insisted upon. But here the matter of opposition to the motion was the very matter tried on the issues raised by the pleadings and the evidence, of which the court was bound to take notice. It could not have submitted the case to the jury without considering the question of damages to the plaintiff for injury to the corpse and the liability of the defendant- In a demurrer to the evidence, the court must consider the same matters that must be submitted to a jury; for he takes the place of the jury in such case to a certain extent. President, etc., of the Bank of the U. S. v. Smith, 11 Wheat. 172, 174, 6 L. ed. 443.
While the rule that the grounds of motions Mr directed verdicts and oppositions to such motions must be fairly stated is a wholesome rule in the administration of justice, it should not be so technically construed as to defeat the ends of justice. That the plaintiff was entitled to recover some damages, either actual or nominal, considering her evidence in the light most favorable to her, on the issues made by the pleadings, cannot be successfully disputed, and that to 'recover them at all it was necessary for her to recover them in this suit. By the judgment below, she is not only deprived of a legal right to recover her just damages, but the costs are cast upon her.
I tvould reverse the judgment and remand the case for a new trial.