
    Ann A. Foley, Respondent, v. Charles Phelps, Appellant.
    
      Burial—a widow has the right to the possession, before interment, of the body of he?•! husband—she may recover dunnages for an unauthorized dissection of his remains, she homing claimed the body for burial.
    
    The complaint in an action alleged that the plaintiff's husband, having fallen through an elevator shaft, was taken to Bellevue Hospital where he died three hours later; that the plaintiff was under the duty and obligation and had the right to bury her husband; that she applied at the hospital for his body and begged those who were in charge of it not to allow an autopsy to be performed, stating that she would send an undertaker for the body at once; that, notwithstanding her request and protestations, the defendant, without her knowledge or consent, procured, assisted, aided and abetted in performing an autopsy on her husband’s body, and that this was done without any authority of law. To this complaint a demurrer was interposed.
    
      Held, that the complaint stated a cause of action;
    That, prior to interment, the widow had a right to the possession of the body of her husband for the purposes of preservation and burial, and that her rights in this regard were paramount to those of the next of kin, and that she had a right to the possession of the body in the same condition it was in, when death occurred;
    That the unlawful and unauthorized mutilation of the body was a clear invasion of the plaintiff’s right, and, irrespective of any statutory enactment, entitled her to bring an action for damages.
    
      Queers, whether damages can be allowed for mental suffering and for injury to the feelings although no actual pecuniary loss is proved.
    Appeal by the defendant, Charles Phelps, from an interlocutory judgment of the Supreme Court in favor of the. plaintiff, entered in the office of the clerk of the county of New York on the 29th day of January, 1895, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer to the complaint, and also from the order or decision entered in said clerk’s office on the 13th day of December, 1895, upon which said interlocutory judgment was entered.
    
      FrctmMin Bien, for the appellant.
    
      B. H. Tabor, for the respondent.
   Patterson, J.:

The question presented in this case seems to be one of first impression in this jurisdiction, and comes before the court on appeal from a judgment overruling a demurrer to the complaint. Stated with precision, the inquiry is, whether the defendant is liable cimliter and to this particular plaintiff for the unlawful dissection of the remains of her husband, an act not only unlawful, but constituting, on the assumption that the facts alleged are true, a criminal offense. The complaint sets forth that on the 16th of May, 1891, the plaintiff’s husband fell through an elevator shaft in a building in the city of Hew York, and was taken in an unconscious condition to the Bellevue Hospital, where he died three hours after his admission; that the plaintiff was a loving and devoted wife, and was under the duty and obligation and had the right of burying her husband; that she applied at the hospital for his body, and begged and implored those who were in charge of it not to allow or permit an autopsy to be performed, and gave notice that she would immediately send an undertaker for the body to remove it to her home, where it would be prepared for burial; that notwithstanding her request and protestations the defendant, without her knowledge or consent, procured, assisted, aided and abetted in performing an autopsy on her husband’s body, which autopsy was performed without any authority of law, and was willfully done by cutting open and otherwise abusing and maltreating the dead body. The complaint then proceeds to state matter intended to be in aggravation of damages, and ends with a demand for a money judgment.

The learned judge who decided this demurrer at the Special Term has given no statement of the views which prompted his decision, and we are, therefore, without the advantage of a preliminary judicial examination of the question involved, but we have reached the conclusion that the court below was right in overruling the demurrer on the case as it is stated in the pleading.

The allegations of the complaint clearly establish an unlawful act on the part of the defendant. The unauthorized dissection of human remains is a misdemeanor under the provisions of sections 308 and 309 of the Penal Code of this State. While it is true that the provisions of the criminal law neither give nor recognize a right to institute a civil suit for damages, still they incontestably determine the wrongful nature of the act complained of. There is a statute specially applicable to the case of a patient who dies, as this plaintiffs husband did, in one of the hospitals of the State.

The act of 1854 (Chap. 198), well known as the act to promote medical science, expressly prohibits the dissection of a dead body- or its delivery to any one for the purposes of dissection if the relatives or friends of the deceased object, or if they make application within a certain time (as appears to have been done in this case) for the remains for the purposes of burial.

At the outset of the inquiry the objection is taken to the maintenance of the action; that assuming, for the purposes of the argument, a civil action will lie, the plaintiff has no standing in court to maintain it. This objection proceeds upon the idea that if any one may bring an action of this character it must be the next of kin. It has been stated in general terms in several cases that in the absence of testamentary direction on the part of the deceased the exclusive right of burial, and of designating the place in which human remains shall be interred, is with the next of tin. Those cases are referred to and cited in an opinion of Mr. Justice Landon in the case of Snyder v. Snyder (60 How. Pr. 370), and in commenting upon them that learned judge says: Most of the cases there referred to arose with respect to the right to protect the place where the remains were buried; to prevent a disinterment or to collect from the executors, husband or relative of the deceased the expenses of the funeral. In the absence, of a contention prior to burial, as to the right between relatives to designate the place of burial, the broad doctrine that the right rests exclusively with the next of tin can hardly be considered as a judicial exclusion of the right of the widow.”

In this case it will be observed that the question is directly presented with reference to the duty and right the widow owes and has to and over the body of her dead husband prior to mterment; that is, before the remains have passed beyond the necessity of human care and attention. It is provided by the Penal Code of this State that, except in cases specially provided for by law, the dead body of a human being lying within this State must be decently buried within a reasonable time after death. That duty must be performed by somebody. It has been held in this country that the primary duty of burying a deceased wife is upon the husband. (Weld v. Walker, 130 Mass. 423.) And it has been expressly determined that if a husband and wife are living together at the time of the death of the former, the widow’s right to the possession of the dead body for the purposes of preservation and burial is a right in the widow paramount to that of the next of kin. (Larson v. Chase, 47 Minn. 307.) We think, therefore, as a matter of law upon the facts as they are stated in this complaint and without reference to the allegation of the plaintiff’s duty and right, she may maintain this action, if it may be maintained at all. The foregoing observations are made to meet the possible suggestion that the allegation of the complaint respecting the duty and right referred to is merely one of a conclusion of law, and, of course, if it is such it is not admitted by the demurrer. But, construing the words of the complaint with reference to this matter, as we think they should be construed, they are equivalent to an allegation that as a matter of fact the plaintiff was the person upon whom had devolved the obligation and responsibility of complying with that requirement of the law respecting the interment of human remains to which reference has been made, and that the demurrer admits that she was such person.

This brings us to the consideration of the other question involved, namely, that concerning the right to maintain an action at all. The ground of objection urged by the appellant is that there can be no such action because there.can be no such thing as property in human remains. By the common law and strioti juris the proposition as to property may be maintainable. A long line of judicial decisions appears to have established a general doctrine to that effect, but courts of equity have frequently interfered to protect the remains of the dead ; and courts of'law have also afforded remedies through formal legal actions wherever any element of trespass to property, real or personal, was associated with the molestation of the remains of the dead. In more recent times the obdurate common-law rule has been very much relaxed, and changed conditions of society, and the necessity7 for enforcing that protection which is due to the dead, have induced courts to re-examine the grounds upon which the common-law rule reposed, and have led to modifications of its stringency. The old cases in England were decided when matters of burial and the care of the dead were within the jurisdiction of the Ecclesiastical Courts, and they are no longer absolutely controlling. Thus, in the case of Pierce v. The Proprietors, etc. (10 R. I. 227), it is stated by the court: “ That there is no right of property in a dead body, using the word in.its ordinary sense, may well be admitted ; yet, the burial of the dead is a subject which interests the feelings of mankind to a much greater degree than many matters of actual property7. There is a duty imposed byr the universal feelings of mankind to be discharged by some one toward the dead. A duty, and we may also say a right, to protect from violation, and a duty on the part of others to abstain from violation ; and it may, therefore, be considered as a sort of quasi property, and it would be discreditable in any7 system of law not to provide a remedy in such a case.”

But we are not disposed to ¡3ut the right of the plaintiff to maintain this action on the ground of a property right in the remains of her husband, nor do we think that the discussion is properly placed when it is rested exclusively upon that proposition. Irrespective of any claim of property, the right which inhered in the plaintiff as the decedent’s widow, and in one sense his nearest relative, was a right to the possession of the body for the purpose of burying it; that is, to perform a duty which the law required some one to perform, and which it was her right by reason of her relationship to the decedent to perform. That right of possession is a clear legal right, and, to use the language of Mr. Buggles in his valuable report adopted by the court in the Brick Church Case (4 Bradf. Surr. Rep. 532), the right to bury a corpse and to preserve its remains is a legal right which the courts of law will recognize and protect.” The right is to the possession of the corpse in the same condition it was in when death supervened. It is the right to what remains when the breath leaves the body, and not merely to such a hacked, hewed and mutilated corpse as some stranger, an offender against the criminal law, may7 choose to turn over to an afflicted relative. If this right exists, as we think it clearly does, the invasion or violation of if furnishes a ground for a civil action for damages. It is not a mere idle utterance, hut a substantial legal principle, that wherever a real right is violated, a real remedy is afforded by the law. A right to vote can in no sense he called a pure right of property; it is merely a personal right; yet, who would now contend that a person obstructing a voter’s right or preventing his voting would not be, irrespective of any statutory enactment, liable even if the candidate of the choice of the person thus obstructed was elected % (Ashby v. White, 1 Smith L. C. *342.) Although the precise question involved in this case has not been judicially passed upon, so far as we have heen able to ascertain, in the courts of this State, yet it has been decided in favor of the maintenance of the action by the Supreme Court of Minnesota in the case of Larson v. Chase (supra). In the well-considered and well-reasoned opinion of the court in that case it was held that the right to the possession of a dead body for the purposes of preservation and burial is a legal right — one which the law recognizes and protects, and that the violation of that right, by an unauthorized and unlawful mutilation of the corpse before burial, gives rise to an action for damages in favor of the surviving wife of the deceased. It is there also held that the rule of damages would allow a recovery for mental suffering and for injury to the feelings occasioned directly by the unlawful mutilation, and that although no actual pecuniary loss or damage was proven. It is not for us at this time to express any opinion with respect to the measure of damages in a case of this kind; but we are satisfied that the action will lie, and will lie in favor of the widow under the circumstances disclosed by this complaint.

The judgment overruling the demurrer must be affirmed, with costs.

Van Bbunt, P. J., Barrett, Bumsey and Williams, JJ., concurred.

Judgment affirmed, with costs.  