
    Wilde, imp., Appellant, vs. Milwaukee Electric Railway & Light Company, Respondent.
    
      October 3
    
    October 24, 1911.
    
    
      Dead, bodies: Bight to custody: Unlawful removal: Parent and child.
    
    1. The father has the right to the care and custody of the body of his unmarried daughter for the purpose of providing proper obsequies and sepulture, and any one wrongfully invading this right is liable to respond in damages.
    2. The body of a girl killed by defendant’s electric car at a highway crossing was placed by the trainmen upon the car and, accompanied by a girl companion, was taken to Milwaukee, less than fifteen miles distant, where it was placed in a morgue and the father promptly notified. It appeared that the place of the accident was two and one-half miles from the father’s house, that snow had rendered the roads nearly impassable, that there was an uninclosed and unattended shelter for passengers at the place and a farmhouse near hy, and that defendant’s road ran through a well settled farming country. Held,, that the jury were warranted in finding that no right of the father was invaded by such disposition of the body.
    3. The jury were properly instructed in such case that defendant was not liable if what was done hy its servants with the body was done in good faith and solely for the purpose of accomplishing an early return thereof to the plaintiff, and if the acts and conduct of such servants were not characterized by recklessness or heartlessness.
    • Appeal from a judgment of tbe circuit court for Waukesba county: MaetiN L. Luece:, Circuit Judge.
    
      Affirmed.
    
    On April 23,1910, Edna Wilde, tbe fifteen-year-old daughter of tbe plaintiff, was struck and killed by an electric car-ón defendant’s railway at Sunny Slope station, about two and one-balf miles from ber borne. Tbe body was placed upon tbe car and taken to Milwaukee by defendant’s employees, and left at a morgue in said city. Tbis action was brought, to recover damages for tbe unlawful removal of tbe body from tbe place at which tbe accident occurred. Tbe jury returned a general verdict in favor of tbe defendant and judgment was entered thereon, from which judgment plaintiff appeals.
    Eor tbe appellant tbe cause was submitted on tbe briefs of F. 0. Weed.
    
    Eor tbe respondent there was a brief by Merton, Newbury & Jacobson, attorneys, and a supplemental brief by Glarlce M* Rosecrantz, of counsel, and oral argument by JE. Merton.
    
   BaeNEs, J.

Plaintiff’s daughter was billed by one of defendant’s cars at a highway crossing in Waukesba county. Cars stopped at tbis crossing to receive and discharge passengers, and deceased and a companion were intending to take a car to Waukesba when the accident occurred, deceased being struck by a car east bound for Milwaukee. There was a shelter for passengers at tbe crossing, but it was not inclosed and no one was in charge of it. Tbe same was true of County Line, tbe next stopping place east of where tbe injury occurred. There had been a severe snow storm which rendered the county roads well nigh impassable. The plaintiff lived two and a half miles from where his daughter was hilled, and it took nearly three hours to make the distance with a horse on the morning of the casualty. There was one dwelling house quite close to the place of the accident, and the railroad ran through a well settled farming country until the city limits were reached. Death resulted almost immediately. The body was picked up by the trainmen and placed on one of the Car seats and covered over. There is no pretense that any indignity was offered to the remains and it is not at all certain that the employees knew that thé girl was dead when they lifted her body into the car. The dead girl’s companion was asked to accompany the remains, and the car proceeded to County Line station, the next stopping place. Here the trainmen got into telephonic communication with the officials of the defendant and related the details of the accident. At this time the trainmen knew the girl was dead. They were requested to carry the body to Milwaukee. On its arrival it was placed in the morgue, and the father of the dead girl was promptly notified of the death of his daughter and where the body was.

One point argued is that the verdict is perverse and should be set aside as not supported by the testimony. We think the verdict is supported by the evidence. The trainmen could not well abandon their car to notify the plaintiff. It would have been inhuman to permit the body to lie where it fell, and it might well be considered indecent to leave it in the open shed provided for passengers, without any attendant. The trainmen might have asked the farmer who lived near where the girl was killed to care for the body, and such farmer might have done so, in which event it would be but two and one-half miles from the home of the plaintiff. But the parties were no doubt laboring under excitement, and the jury might well have reached the conclusion, under the circumstances, that the defendant’s employees made as reasonable a disposition of tbe body as conld be expected, all things considered. Tbe plaintiff bad tbe undoubted right to tbe care and custody of tbe body of bis daughter for tbe purpose of providing proper obsequies and sepulture of tbe remains, and for any wrongful invasion of this right tbe guilty party is liable to respond in damages. Koerber v. Patek, 123 Wis. 453, 102 N. W. 40. However, tbe evidence warranted tbe jury in finding that no right of plaintiff was invaded by tbe defendant.

Four exceptions were taken to tbe charge of tbe court. Three of them were frivolous. Tbe remaining one raises tbe question of tbe correctness of tbe following language used by tbe court:

“But if, on tbe other band, you find that what was done by tbe servants of tbe defendant with tbe dead body was done in good faith and solely for tbe purpose of accomplishing an early return thereof to the plaintiffs, and that tbe acts and conduct of tbe defendant’s servants were not characterized by recklessness or beartlessness, then tbe plaintiffs cannot recover, and your verdict should be for tbe defendant.”

It is tbe opinion of this court that this charge, as applied to tbe facts in tbe case before us, is a correct exposition of tbe law.

By the Court. — Judgment affirmed.  