Louisville & Nashville Railroad v. Blackmon

Powell, J. (After stating the facts.) 1. That the unauthorized, mutilation of the dead body of the husband gives a right of action to the wife is conceded. Medical College of Georgia v. Bushing, 1 Ga. App. 468 (57 S. E. 1083); 13 Cyc. 281; 8 Am. & Eng. Enc. of Law (2d ed.), 834; 64 Central Law Journal, 275. Therefore, under the allegations of the petition, there can be no question as to the liability'- of the individual defendants, Platt and Houston, who participated in the alleged mutilation. So we shall discuss only the proposition whether the two railroad defendants are liable for the acts of their surgeon who committed the mutilation of the body. 2. Conceding that a surgeon of a railway company is such a servant as to be within the purview of section 3817 of the Civil Code of 1895, which provides that “Every person shall be liable for torts committed by his . . servant by his command, or in the prosecution and within the scope of his business, whether the same be by negligence or voluntary,” still we can not hold that the tort complained of here was within the scope of the business for which the servant was employed. Whether the railway company furnished surgical attention to the engineer for the purpose of diminishing the effect of an injury for which they apprehended they might be held liable, or as a mere gratuity, the business entrusted to .the surgeon was that of ministering to a living man; and when death had rendered all further ministration unavailing, the duty and business with which he had been entrusted by the railway companies were at an end. Certainly the limit to the scope of his authority was reached when he had closed the .dead eyelids down and had delivered the body to him to whom next in natural order the corpse should go, — the undertaker. A case might arise in which a railroad company would be liable for the mutilation of a dead body by a surgeon; as, when, for the purpose of obtaining evidence or for other reason, it directed an autopsy to be made. Such is not here-alleged to be.the case. The mere allegation that the person committing the tort was agent and surgeon at the time does not render any the less necessary the statement of facts showing that the act was by command of the employer or within the scope of the employment. Lewis v. Amorous, ante, 50 (59 S. E. 338). [83] As to the plaintiffs in error Houston and' Platt, the judgment is affirmed; as to the plaintiffs in error Louisville & Nashville .Bailroad Company and Atlantic Coast Line Bailroad Company, the judgment is reversed.