Burns v. Anchorage Funeral Chapel

495 P.2d 70, 1972 Alas. LEXIS 212
CourtAlaska Supreme Court
DecidedMarch 22, 1972
Docket1465
StatusPublished
Cited by22 cases

This text of 495 P.2d 70 (Burns v. Anchorage Funeral Chapel) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burns v. Anchorage Funeral Chapel, 495 P.2d 70, 1972 Alas. LEXIS 212 (Ala. 1972).

Opinion

*72 RABINOWITZ, Justice.

Gordon Burns, as administrator of the Estate of Wilma Fuglemsmo, brought suit against the Anchorage Funeral Chapel in the superior court. In Count I of his complaint Burns stated a claim for relief for wrongful death asserting that Anchorage Funeral had prematurely embalmed Wilma Fuglemsmo. This claim was tried to a jury which returned a verdict in favor of Anchorage Funeral. In Count II the administrator alleged a claim for wrongful interference with the right of the next of kin to preserve the body of the deceased. This count stated that Anchorage Funeral had embalmed the body of Wilma Fuglems-mo without the consent of her next of kin, and that this unauthorized act caused the next of kin emotional distress. Subsequent to the filing of this count, the trial court issued a pre-trial order in which the administrator was required “either to file an amended complaint [adding the next of kin as plaintiffs] or to defend a challenge against the second claim of want of capacity in the administrator.” The administrator decided to defend the position that he had previously adopted, namely that he was the real party in interest, whereupon Anchorage Funeral moved for judgment on the pleadings. At this point the administrator moved to add the next of kin of Wilma Fuglemsmo as parties plaintiff. The superior court granted Anchorage Funeral’s motion for judgment on the pleadings and denied the administrator’s motion to add parties plaintiff on the ground that any claim the next of kin might have possessed arising from the unauthorized embalming was barred by the controlling two year statute of limitations. 1 The trial court reasoned that since Burns, as administrator, was not the real party in interest, a new claim for relief would be introduced by an amendment adding parties plaintiff, and that, therefore, the amendment could not relate back to the date on which the administrator instituted suit against Anchorage Funeral. 2

The issues, as framed by the parties to this appeal, involve substantive and procedural facets of the subject of real parties in interest; the propriety, within the context of this case, of amendment of the pleadings in order to add additional parties plaintiff; the impact of such an amendment upon the bar arising from the applicable two year statute of limitations; and whether the second count of the complaint stated a claim for relief. We first turn to the real party in interest issues.

Civil Rule 17(a) provides in part:
Every action shall be prosecuted in the name of the real party in interest; but an . . . administrator . . . may sue in his own name without joining with him the party for whose benefit the action is brought ....

The first clause of Civil Rule 17(a) requires that every action be prosecuted in the name of the real party in interest. Rule 17(a), Federal Rules of Civil Procedure, which parallels Alaska’s Civil Rule 17, has been consistently interpreted to mean that an action or claim for relief shall be prosecuted in the name of the party who, by the substantive law, possesses the right sought to be enforced. 3 Thus Burns, as administrator, must under the substantive law *73 of Alaska, have had the right which is to be judicially enforced.

In Edwards v. Franke, 364 P.2d 60, 63 (Alaska 1961), we said that

[i]t is generally the law in this country that the right to possess, preserve and bury, or otherwise dispose of, a dead body belongs to the surviving spouse and, if none such, then to the next of kin in the order of their relation to the decedent; that a violation of that right is a tort; and that damages for mental suffering are recoverable for a wilful invasion of the rights relating to dead bodies. (Footnote omitted.)

It follows that a claim for relief for wrongful interference with the right to preserve a dead body belongs exclusively to the surviving spouse or to the next of kin of the decedent. This substantive right is in the surviving spouse or next of kin, whether the claim is analyzed as a tortious invasion of a property right or infliction of emotional harm. 4 We therefore conclude that under the first clause of Civil Rule 17(a) the trial court correctly held that Burns was not a real party in interest to this litigation.

In his appeal Burns argues that he properly instituted the suit as administrator because of a specific exception to the real party in interest rule. In support of this contention, Burns points to the language of the second clause of Civil Rule 17(a) which provides in part that “ . . . but an administrator may sue in his own name without joining with him the party for whose benefit the action is brought.” Burns’ position that this language embodies an exception to the main rule is not borne out by the federal experience under the similar Rule 17(a), Federal Rules of Civil Procedure. In 1966 the “but” of the enumerative second clause was deleted from the federal Rule 17(a) “to make it clear that the specific instances enumerated are not exceptions to, but illustrations of, the rule.” 5 Under the common law, and by statute in Alaska, an administrator may sue for the benefit of the estate. 6 The administrator possesses the bare legal title to any claim for relief which is the property of the estate. 7 Since the estate in the case at bar had no claim for relief for wrongful interference with the right to preserve the body of the deceased, or for any emotional harm that may have resulted from the unauthorized embalming *74 of the deceased, Burns, as administrator, was not the real party in interest. 8

Burns further contends that Anchorage Funeral waived any objection to Count II of the complaint Because the real party in interest issue was attempted to be raised in a procedurally impermissible and untimely manner. Specifically, Burns says that Civil Rule 9(a), which requires that the capacity of a party to sue be raised by specific negative averment, controls the manner by which the real party in interest objection should have been raised. 9

In previous decisions this court has held that the specific negative averment requirements of Civil Rule 9(a) are an appropriate vehicle by which a real part in interest question may be raised. Weaver v. O’Meara Motor Co., 452 P.2d 87, 90 (Alaska 1969); Wilson v. Interior Airways, Inc., 384 P.2d 956, 957 (Alaska 1963); Smith v.

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Bluebook (online)
495 P.2d 70, 1972 Alas. LEXIS 212, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burns-v-anchorage-funeral-chapel-alaska-1972.