Morrow v. . Cline

ClaeesoN, J. The first question presented by defendants: “In an action for damages, where it is alleged a dead body has been mutilated, must the action be brought by the widow of deceased or by the minor children ?” The defendants demurred to the complaint of plaintiffs, so on this record it is not necessary to answer this question. The sole question on this record: Are the allegations in the complaint sufficient to sustain the action? ¥e think so. In Stephenson v. Duke University, 202 N. C., 624 (625), is the following: “This action was brought to recover damages for the mutilation or autopsy of the dead body of a child. The plaintiffs were the child’s parents. The court adjudged in effect that the father may maintain the action and that the complaint does not state a cause of action in behalf of the mother. The plaintiffs appealed; the defendant did not appeal. ¥e therefore treat as conceded the defendant’s satisfaction with the judgment and its acquiescence in the conclusion that the action may be prosecuted by the male plaintiff, and that as to him the complaint states a cause of action. The right to bury the dead is generally treated as a g’utm-right of property. Floyd v. R. R., 167 N. C., 55. If the father has a right of action we need discuss neither the divergent views expressed in regard to the right of property in the dead body of a human being, nor the legal right of the proper person to prosecute a suit for its mutilation. In this State the right to maintain an action for such mutilation has been recognized for almost a third of a century. Kyles v. R. R., 147 N. C., 394. The single question with which we are now concerned is whether upon the allegations in the complaint the feme plaintiff, the mother of the deceased child, has a cause of action. . . . (p. 628). Our conclusion is that the father’s relation to the child and the consequent duties imposed upon him by the law, some of which have been enumerated, are of such character as to clothe him with a preferential right of action, and that the judgment should be affirmed.” On demurrer by defendants in the court below, “The court sustained the *257 demurrer as to feme plaintiff’s alleged cause of action and overruled it as to tbe cause stated by C. H. Stephenson.” To this the plaintiff excepted and assigned error and appealed to the Supreme Court. The judgment of the court below was affirmed. In Bonaparte v. Funeral Home, 206 N. C., 652, it is settled in this jurisdiction that a wife has the right to possession of the dead body of her husband and may recover punitive damages for its wrongful detention. In the present case the demurrer against the plaintiff J. W. Morrow, father of the mutilated son, was sustained and he did not appeal. As the cause now stands, therefore, this is an action by two minor children of deceased in which they claim damages for the mutilation of the body of their father. J. W. Morrow has been duly appointed next friend of Carl Morrow and Itasca Morrow, and the complaint alleges that “Carl Morrow and Itasca Morrow are the minor children of the said Robt. Morrow.” The second question presented by defendant: “Should the complaint allege that the plaintiffs, children of the decedent, are the only children left by said decedent, and should it further allege that there was no widow who could bring the action at the time of the alleged mutilation ?” We think the allegations of the complaint, liberally construed, would imply that they are the only children left by decedent, Robert Morrow — ■ a reasonable inference. This phase of the demurrer is too technical and attenuated. We do not think that it was necessary to allege that there was no widow who could bring the action at the time of the alleged mutilation. The defendants further contend: “If the action has to be brought by the widow, if she is alive, or not divorced, it is not necessary for the plaintiffs to allege and prove her death or divorce, and further allege that they are the only children of decedent, in order to maintain a cause of action? We think this is jurisdictional, and without an allegation of the kind the action cannot be maintained, and hence the demurrer should have been sustained in toto.” We cannot so hold. We think that this would be a “speaking demurrer.” McIntosh, N. C. Practice and Procedure in Civil Cases, part sec. 436, p. 447, lays down the following rule: “A speaking demurrer is one which, as a ground of objection, states facts which do not appear in the pleading to which the demurrer is filed. This is not a demurrer, and will not be considered by the court. It is not the function of a demurrer to allege facts, and thereby challenge the validity of the opponent’s claim, but to admit the truth of the facts alleged and question their legal sufficiency.” It nowhere appears upon the face of the complaint that the deceased had a wife surviving him, or that if she did survive, that they had been *258 divorced, or that she had not abandoned him and separated herself from him. Nor does it appear that the deceased left surviving him children other than the plaintiffs Carl Morrow and Itasca Morrow; this is a matter of special defense and not by speaking demurrer. Brick Co. v. Gentry, 191 N. C., 642; Justice v. Sherard, 197 N. C., 237. “The rule stated and applied in most of the cases is that the defense of the real party in interest may only be made by affirmative allegation by the defendant.” Clark on Code Pleading, p. 136; Willey v. Cameron Michel Co., 217 App. Div., 651, 217 N. Y. S., 248. Mr. Pomeroy says on this subject: “The defense that the plaintiff is not the real party in interest is new matter. A general averment, however, to that effect, is not enough; the facts must be stated which constitute the defense, and which show that he is not the real party in interest.” Pomeroy Remedies and Remedial Rights (5th Ed.), sec. 587; Maxwell on Code Pleadings, pp. 66-7; Phillips Code Pleadings (2d Ed.), sec. 348, p. 379; Phœnix Bank v. Donnell, 40 N. Y., 410. For the reasons given, the judgment of the court below is Affirmed.