Birmingham Transfer & Traffic Co. v. Still

PELHAM, J. This is an action brought by the ap-pellee, as plaintiff, in the court below against the appellant for damages growing out of the alleged breach of a duty resting upon a contract entered into by appellant, who was engaged in the transfer business in the city of Birmingham, Ala., to carry the small coffined corpse of the appellee’s minor child in a suitable and befitting manner from the Terminal passenger station in the city of Birmingham to the Louisville & Nashville Railroad passenger station in said city. The appellee arrived at said Terminal station, accompanied by a friend, en route to Cullman, Ala., to which place he was carrying the corpse of his child for burial. It was necessary, in order to complete the journey after arriving in Birmingham, to have the corpse carried across the city to the said Louisville & Nashville Railroad station, a distance of six or seven blocks, and the *560 appellee' contracted with the appellant to perform this service, paying the price ($2.50) fixed by the appellant, and stated by its agent to be the customary charge for such a service. The corpse was transferred from the one station to the other in the city by putting the coffin containing the corpse on an ordinary one-horse dray used by the appellant in connection with its regular business in hauling baggage, and carrying it with some seven or eight trunks that Averé also on the dray, which was driven by and in the charge of a negro driver and a negro helper. The coffin Aveighed, Avith is contents, about 75 or 80 pounds; the corpse being that of a small girl about '2;l/3 years old. When the negroes in charge of the dray drove up to the Louisville & Nashville Railroad station, where the father and his friend were aAvaiting its arrival, the coffin Avas piled in Avith the trunks, some of the trunks being over the coffin, and the negro men in charge Avere sitting on the trunks. In each count of the complaint the plaintiff seeks to recover a portion of the sum paid the defendant for carriage, and damages for mental pain and suffering, and also exemplary or punitive damages. The defendant moved to strike from each count of the complaint the claim for pecuniary loss, being the amount claimed as part of the consideration paid the defendant for the services to be performed that were not performed, or Avere improperly performed. The action of the court in denying these motions, even if they were properly grounded, Avould not authorize a reversal of the case.— C. of Ga. Ry. Co. v. McNab, 150 Ala. 332, 43 South. 222; Southern Ry. Co. v. Coleman, 153 Ala. 166, 44 South. 837. The appellant, hoAvever, raised the same question by special charges directed at the plaintiff’s right to recover such damages, and this method of raising the *561 question properly presents it for consideration on review. If tbe defendant charged the plaintiff an unreasonable amount for the service rendered, or rather did not render the kind of service contracted for, the plaintiff would have a cause of action to recover the amount exacted in excess of a proper and reasonable charge; and if the plaintiff suffered recoverable damages for a breach of duty growing out of the same contract, and as a proximate consequence, entitling him to recover for mental pain and suffering, there is no rule of law that would prevent him from recovering for all of the damages in one action. “One who is entitled.to sue at all for the consequences of a wrongful act of another may recover all the damages proximately resulting from that act. — Birmingham Southern Ry. Co. v. Lintner, 141 Ala. 420, 38 South. 369, 109 Am. St. Rep. 40, 3 Ann. Cas. 461;” B. R., L. & P. Co. v. Norris, 2 Ala. App. 610, 618, 56 South. 739. The same principle has often been applied to suits against telegraph companies for damages resulting from a failure to deliver telegrams. — W. U. Telegraph Co. v. Krichbaum, 145 Ala. 409, 41 South. 16; W. O. Telegraph Co. v. Merrill, 144 Ala. 618, 39 South. 121, 113 Am. St. Rep. 66; W. U. Telegraph Co. v. Long, 148 Ala. 202, 41 South 965; W. U. Telegraph Co. v. Westmoreland, 150 Ala. 654, 43 South. 790; Postal Telegraph & Cable Co. v. Beal, 159 Ala. 249, 48 South. 676. The appellant, by appropriate methods, challenged the plaintiff’s right to recover damages for mental pain and suffering, and makes the adverse rulings of the trial court against the appellant on this proposition the basis of several assignments of error. The cases cited by appellant in which our Supreme Court has held that ■a plaintiff could not recover for mental pain and suffer- *562 iug alone, without having a night to recover some actual or substantial damages aside from such injuries, are not in the way of plaintiff’s right to recover for mental suffering in this.case; for the'contract, on its face, carried with it the necessary implication that the defendant, for the consideration paid, would carry the corpse in suitable and befitting manner, and its wrongful act in failing in this and hauling it on a dray in the same manner as ordinary baggage furnished the plaintiff with a cause of action for actual damages, aside from damages for mental suffering, for at least a part of the sum exacted for a different service. The further insistence is made that damages for mental pain and suffering are not recoverable in a case of this nature, and that, the improper and wrongful treafment of a dead body, when there is no mutilation or physical injury to the corpse, cannot be made the subject-matter or basis of a recovery of damages for mental pain and suffering by the next of kin, although it is conceded that the next of kin have the right to the custody of the body for the purposes of burial. We cannot subscribe to such a proposition. The right of a father to care for, watch over, and bury, the dead body of his minor child has always been recognized and protected by the law (see 3 Am. & Eng. Ency. Law [1st Ed.] p. 51, note 4); and wherever a legal light is violated or trespassed upon in this connection a real remedy is afforded by the law. — Larson v. Chase, 47 Minn. 407, 50 N. W. 238, 14 L. R. A. 85, 28 Am. St. Rep. 370. In this case the evidence shows that the father was taking the corpse of his 2-*4 year old daughter to its earthly resting place, and contracted with the defendant to carry it from one station to another through the streets of the city of Birmingham in a suitable and befitting manner, with due regard to the feelings and *563 sensibilities of a parent thus situated. That this distance was but six or seven blocks, and that a price of $2.50 was exacted and paid for the service, and that the charge for carrying a trunk or other ordinary article of baggage of the same bulk and weight between, these two points was 25 cents, were facts sufficient, in themselves, to show that the parties contemplated a different service from that given, which was shown by practically the uncontroverted evidence to be that the corpse was carried in a. way naturally calculated to wound the feelings, of the afflicted father, and in the same manner as a trunk or other ordinary piece of baggage would be hauled through the streets; that is, on a dray mingled together with several trunks, on which two negro men in sole charge were sitting. As was appositely said by the court in the opinion rendered in the recent case of Douglas v. Stokes, 149 Ky. 506, 509, 149 S. W. 849, 850: “The most tender affections of the human heart cluster about the body of one’s dead child. man may recover for any injury or indignity done the body, and it Avould be a reproach to the law if physical injuries might be recovered for, and not those incorporeal injuries which would cause much greater suffering and humiliation.” In this case the Court of Appeals of Kentucky held that the parent-had a right to recover damages for mental pain and suffering occasioned by the unauthorized use of a nude photograph of plaintiff’s deformed minor children, as it constituted a violation of the parent’s right of privacy of the bodies of his dead children. Although, strictly speaking, there is no right of property in a dead body, the right of a parent, who has the -custody of the remains of his dead child for burial, to recover for the injury to his feelings by any indignity purposely or wrongfully perpetrated upon the corpse of *564 the child has been directly or by proper analogy recognized in many well-considered cases. — Wright v. Hollywood Cemetery Co., 112 Ga. 884, 88 S. E. 94, 52 L. R. A. 621; Renihan v. Wright, 125 Ind. 536, 25 N. T. 822, 9 L. R. A. 514, 21 Am. St. Rep. 249; Dunn v. Smith (Tex. Civ. App.) 74 S. W. 576; Meagher v. Driscoll, 99 Mass. 281, 96 Am. Dec. 759; Fillebrown v. Hoar, 124 Mass. 585; Larson v. Chase, 47 Minn. 307, 50 N. W. 238, 14 L. R. A. 85, 28 Am. St., Rep. 370; Jacobus v. Congregation of, etc., 107 Ga. 518, 33 S. E. 853, 73 Am. St. Rep. 141; L. & N. R. R. Co. v. Hull, 113 Ky. 561, 68 S. W. 433, 57 L. R. A. 771; Pierce v. Swan Point Cemt. Proprietors, 10 R. I. 227, 14 Am. Rep. 667; Wright v. Beardsley, 46 Wash. 16, 89 Pac. 172; Wells Fargo Co. v. Fuller, 13 Tex. Civ. App. 610, 35 S. W. 824; Mo., K. & T. R. Co. v. Linton (Tex. Civ. App.) 109 S. W. 942; 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, 1 App. Div. 551, 37 N. Y. Supp. 471. And in an action of qnare clausum fregit to recover damages for the unlawful disturbance of the body of a child, our Supreme Court has held that the parent can recover damages for injury to the feelings occasioned thereby. — Bessemer Land & Improvement Co. v. Jenkins, 111 Ala. 135, 18 South. 565, 56 Am. St. Rep. 26. This doctrine is also adhered to in the telegraph company cases allowing a recovery for mental anguish occasioned by failure to deliver messages in case of death and the disposition of the remains of the decendent. See, also, L. & N. R. R. Co. v. Hull, 113 Ky. 561, 68 S. W. 433, 57 L. R. A. 771, analyzing this right of recovery as applied and'reconciled in the two classes of cases, and the principal upon which it is based as upheld and followed by the states of Kentucky, Texas, Alabama, Indiana, Iowa, North Carolina, and Tennessee. In this *565 connection note the bolding of onr Supreme Court in tbe case of W. U. Telegraph Co. v. Long, 148 Ala. 203, 41 South. 965, where a recovery for mental anguish of the father was alloAved and sustained because, on account of the failure to deliver a telegram, the burial of the corpse of his child was delayed) and the remains left with strangers during the delay. It is further contended by the appellant that the trial court was in error in refusing to instruct the jury that there could be no recovery for punitive or exemplary damages. “The kind of wrongs to which exemplary damages are applicable are those which, besides the violation of a right or the actual damages .sustained, import insult, fraud, or oppression, and are not merely injuries, but injuries inflicted in the spirit of wanton disregard.” — 13 Cyc. 105. We do not think it could be seriously disputed that for the defendant to carry the corpse in the manner shown by the evidence in this case an inference was not afforded from which the jury might reasonably find that it was an act done in a spirit of wanton disregard of the natural feelings and sensibilities of the afflicted father. The breach of the contract declared upon involves a tort, and as the complaint counts upon a breach of this duty growing out of the contract, and not simply the failure to comply with the contract, dissociated with such duty, as a basis for the recovery of exemplary damages, there can be no question of the plaintiff’s right to recover such damages in this action, if the proof is such as to support the allegations of the complaint, alleging the Avanton and willful violation of the plaintiff’s right to have the corpse of his child carried in decent and becoming manner. A recovery of exemplary damages was held to be authorized under somewhat similar conditions, where *566 damages were allOAved for injury to tlie feelings in connection -with an interference with dead bodies, in the following cases hereinbefore cited: Wright v. Hollywood Co.; Jacobus v. Congregation of, etc.; Meagher v. Driscoll; and Burney v. Children’s Hospital. See, also, W. U. Telegraph Co. v. Stokes, 171 Ala. 168, 54 South. 181; W. U. Telegraph Co. v. Crowley, 158 Ala. 583, 48 South. 881; W. U. Telegraph Co. v. Seed, 115 Ala. 670, 22 South. 474; W. U. Telegraph Co. v. Cunningham, 99 Ala. 314, 14 South. 579. In the case of Catzow v. Buening, 106 Wis. 1, 81 N. W. 1003, 49 L. R. A. 475, 80 Am. St. Rep. 1, cited by appellant, it was held that exemplary damages might be recovered for depriving the plaintiff of the use of a hearse and stopping it as he was burying the body of the child, although it Avas held in that case that as there Avas no actual damage or physical injury there could be no recovery for mental suffering. The city ordinance fixing the price for the drayáge of baggage, etc., was properly admitted in evidence. If not admissible for any other purpose, it Avas relevant for the purpose of affording a basis for the jury to arrive at the fair and reasonable charge to be made for the carriage of packages of the same Aveight as the coffined corpse, when carried in the ordinary mode of transporting articles of baggage. The court correctly limited the effect of this evidence, and charged the jury that it Avas not to be taken as prescribing or fixing the price that the defendant Avould be allOAved to charge for the proper transporting or carriage of a corpse. We have discussed all the questions argued by counsel as constituting reAmrsible error as presented by the record in this case, and the conclusion reached, as will be seen from Avhat Ave have said, is that the rulings of *567 the trial court are free from error, and an affirmance of the case necessarily follows. Affirmed.