Meyers v. Clarke

OPINION op the Court by Judge C'antrill — Affirming. On November 28, 1902, Alice Roberts was admitted to the Good Samaritan Hospital in Lexington, Ky., as a charity patient having been. sent there by the city. The record shows that she had been sick but a few days, but it does not show what was the matter with her before her admission into, the hospital. Suddenly, next morning, between half past 6 and 7 o’clock, she died. Her parents were notified of her death. It seems that her stepfather, James Meyers, went to M-ilward’s undertaking establishment and employed him to go to the hospital and take charge of the body, and remove it to the girl’s home,' and prepare it for burial. The undertaker, or one of bis assistants, went to the hospital, and was told that the body was in the morgue, and after conference with the interne at the hospital he went to the home- of the girl and notified her stepfather. James Meyers, that the body wias in bad condition, and that speedy burial was necessary, and suggested thatothe doctors at the hospital had to make an autopsy to ascertain the cause of- her death in order to procure a burial permit from the board of health. Before he could- report to the doctor in charge of the hospital what the stepfather, James Meyers, had said, they (Dr. Duddenhauser and Dr. F. H. Clarke) [869] took it for granted that there were no objections because of the silence of Milward, the undertaker’s assistant, and proceeded to- hold an autopsy, which autopsy disclosed the fact so they say, that she died from perforation' of the bowels, caused by typhoid fever. It appears that the autopsy wias made in the usual way, and there was no unnecessary disfigurement of the body so far as disclosed by the testimony. Between 12 and 2 o’clock the body was turned over to the undertaker’s assistants, who placed it in what is called an undertaker’s basket, and removed it to her home, where it was laid out, and the neighbors gathered in and prepared the corpse for burial. The undertaker brought the coffin to the house that afternoon or evening, and she was placed in the coffin. It does appear from the proof, however, that neither the stepfather nor mother, after being notified of the girl’s death, went to see the corpse at the hospital, nor sent any clothing to be placed upon the body. The doctors and undertaker both testified that the body was in bad condition by reason of the swelling of the bowels and collection of gases inside, and, as they called it, there was an overflow or discharge of putrid matter from her mouth and nostrils. The plaintiff sues the undertaker and doctors for disfiguring the body and for holding the autopsy without her consent. On the trial of the case, all the witnesses — both for the plaintiff and defendants —were sworn, put under the rule, and excluded from the courtroom; but it seems that the plaintiff’s witness, James Meyers (stepfather of the girl), stayed in the courtroom and heard the statement of the case made by the attorneys pro and con. Upon the introduction; of t estimony the plaintiff called [870] James Meyers (stepfather of the girl), and his testimony was objected to because he had remained in- the courtroom and heard the statements of the attorneys, and the court sustained that objection, and refused to let James. Meyers testify. This ruling wias excepted to at the time by the plaintiff. There is no avowal, or anything, in the record which discloses what James Meyers, would testify about. Inasmuch as this record does not show what the witness would testify to, this court cannot say that the appellant was prejudiced by the refusal of the court below to allow him to testify; and therefore the record is not so presented as to raise the question whether the court erred in refusing to allow him to testify. Upon the trial of the cause a verdict was rendered by the jury for each and all of the defendants. Motion wias made for a new trial, which was overruled by the lower court, and she institutes this appeal. The court gave several instructions, each of which were objected to- and excepted to- at the time; but upon an examination of these instructions we do not discover any error. There is nothing in the record to show that the undertaker or the doctors purposely mutilated or disfigured the body, but that their sole purpose was to comply with the rule of the board of health, so- as to enable the undertaker or doctors in authority to procure a burial certificate, which was required by the board of health under the charter and ordinances of the city of Lexington. We see no reason in law or otherwise why the city authorities or the board of health should not. make the requirements as above set out. We are of opinion that the court gave the jury [871] proper instructions', which are as follows.: “Thie; jury should find for the • plaintiff, unless the jury believe from the evidence that the defendants Clarke and Duddenhauser, in making the autopsy upon the body of Alice Roberts, did so for the sole purpose in good faith of ascertaining the cause of the death of said Roberts, in order that they, or one of them, might be able to correctly give a certificate stating the cause of the death of said Roberts for the purpose of obtaining a permit for the burial of the body of said Roberts; and the jury should also find for the plaintiff, unless they believe from the evidence that said autopsy was properly and decently performed with due regard to the sex of said Roberts, and without making any unnecessary incisions into, or mutilation of, the body of said Roberts. If the jury find for the plaintiff, they should find against the defendants Clarke and Duddenhauser. If they find against said two defendants, they should also find against the defendant Milward, provided the jury further believe from the evidence that said Milward, after having custody of the body of said Roberts, consented that an autopsy might be made upon said body, and voluntarily gave to said Clarke or Duddenhauser or both of them, permission to make said autopsy. If the jury believe, from the evidence, that the defendants Clarke and Duddenhauser, in malting the autopsy upon the body of Alice Roberts, made said autopsy decently, with due regard to the sex of said Roberts, making no' unnecessary incisions into or mutilation of the body, and that said autopsy was made in good faith for the purpose of ascertaining the cause of the death of said Roberts, in order that such a certificate [872] might be given as would procure a permit for the burial of the body of said Roberts, the jury should find for the defendants. The jury should find for the defendant Milward, no matter whatever fact may be proved in this case unless the jury believe from the evidence that, after Milward had the custody of the body of Alice Roberts, he voluntarily consented to the making of an autopsy upon said body. ' If the jury find for the plaintiff, they should find for her in such sum in damages, not excedeing $5,000, as will fairly compensate her for' any suffering caused her by reason of the fact that the body of Alice Roberts bad been dissected or mutilated. If the jury find for the plaintiff, they may find against all of the defendants, or they may find against Clarke and Duddenhauser, and find for Milward,- as the facts in this case, under the law given in these instructions, may warrant them.” Nothing appears in the record that the doctors who' made the autopsy, or the undertaker, did anything to outrage the feelings, of the girl’s mother or stepfather, or any of her kin whose duty it was. to take charge of the remains and prepare it for burial; and it would seem that, if anybody was amiss, in their duties in regard to the interment of the girl’s remains, it was the stepfather and mother, who virtually abandoned the corpse and left it in the hands, of the hospital authorities to get rid of it as best they could. We think the judgment of the lower court ought to be affirmed, and it is so ordered.