Bonaparte v. Fraternal Funeral Home

BeogdbN, J. An undertaker, over the protest of the surviving wife, holds the dead body of the husband and thereafter embalms the same without the consent or approval of the wife, and upon demand of the wife, refuses to deliver the body until the fees are paid. Can such wife, upon such facts, recover punitive damages? It was stated in the oral argument that the background of the case disclosed the business rivalry of competitive undertakers for posses *656 sion of tbe body of the deceased. It was said of old that “Michael, the archangel, when contending with the devil, he disputed about the body of Moses,” though the record does not disclose whether such contentions arose over the possession of the body for burial. Jude 9. Our decisions upon the question involved are to the effect that the surviving wife has a property right or quasi property right in and to the body of her dead husband, which is paramount to the claim of any other person. Moreover, it is accepted law that she may recover punitive damages for the mutilation or unlawful detention of the body by a third party if such conduct is wilful, wanton, reckless or unlawful. Manifestly, the arbitrary withholding of the dead body of her husband from a widow, as a security for a debt, or for services rendered, is an unlawful act, even though courteously done. The Supreme Court of Washington spoke upon the subject in Gadsbury v. Bleitz, 233 Pac., 299. The Court said: “But we think that the holding of the body after the time for its cremation has passed, and claiming to hold it as a guaranty or as security for the payment of some indebtedness, is making a misuse of the body, just the same as its mutilation or improper burial. The misuse in one ease may be greater in degree, but nevertheless it is a misuse.” While the State of Washington has a statute prohibiting the detention of a dead body for debt, nevertheless the decision was not grounded exclusively upon the statute. In the present case the evidence offered by the plaintiff tended to show that the widow, in deep distress from nervous shock, was compelled to wait an hour or two in the dead of the night tO‘ haggle and barter for the body of her husband. These facts invoke the principles of law heretofore applied in Kyles v. B. R., 147 N. C., 394, 61 S. E., 278; Floyd v. R. R., 167 N. C., 55, 83 S. E., 12. See, also, Stephenson v. Duke University, 202 N. C., 624, 163 S. E., 684; Boyle v. Chandler, 138 Atlantic, 273. After giving notice of appeal to the Supreme Court, the defendants filed a motion for a new trial upon newly discovered evidence at the next term of the Superior Court, before such appeal had been heard. Judge Alley dismissed the motion for such new trial and such ruling is approved. S. v. Edwards, 205 N. C., 661. The same motion was made in this Court, but the record filed does not warrant the award of a new trial. Affirmed.