Griffith v. Charlotte, Columbia & Augusta R. R.

23 S.C. 25, 1885 S.C. LEXIS 76

Opinion

The opinion of the court was delivered by

Mr. Chief Justice Simpson.

This action was brought by the plaintiff, appellant, as administrator of W. Scott Hook, deceased, to recover damages for the mutilation of the dead body of the intestate, and the destruction of the apparel in which it was clad, and of a silver watch at the time on the pei’son of the de>ceased, all of which is alleged to have occurred by the gross negligence of the defendant company in running a train of cars over said dead body three several times. The defence denied negligence, and claimed that the complaint did not state facts sufficient to constitute a cause of action.

The whole issue was by consent referred to a special referee to hear and determine the same. The referee found as matter of law that the action by the administrator could be sustained. As matter of fact, that the mutilation of the dead body, and the destruction of the wearing apparel resulted from the careless and negligent action of the defendant, and that the amount of the recovery was not limited to the value of the clothing, $30, and he found for the plaintiff $10,000 damages. The decision of the referee was reviewed by his honor, Judge Aldrich, upon exceptions, who, finding that the alleged negligence by defendant had not been proved, and that the plaintiff could not maintain the action, as administrator, because he had no property in the dead body of his intestate, dismissed the complaint.

The plaintiff has appealed upon numerous exceptions, all of which, however, have been condensed by appellant’s counsel in his argument into certain propositions found below, which we have considered, and upon which we will now announce our conclusions, without reference to the exceptions seriatim. The two first involve questions of procedure, as follows: 1. “This being an action at law, referred by consent to the referee to hear and determine the whole issue, which being found in favor of the plaintiff both as to the law and fact, the plaintiff was at liberty to enter judgment on the referee’s report; and the jurisdiction of the Circuit Judge, if any he had, was only to confirm the report and order judgment thereon.” 2. “That if the Circuit Judge had other and further jurisdiction, in the most adverse view which he could legally take of plaintiff’s rights, he could only have ordered a new trial, and have done this only in the event of the necessary preliminary steps being taken to warrant the exercise of such jurisdiction, which was not done.”

If the reference in this case had been ordered and had before the adoption of the general statutes of 1882, the point raised in the first proposition above would not be so difficult, because then there was a section in the code which provided in terms that the report of a referee upon the whole issue should stand as a decision of the court, and judgment might be entered thereon in the same manner as if the action had been tried by the court. Old Code, § 296. And the practice under this section had been somewhat determined by the decisions of this court, especially in the case of Kirkland v. Cureton (4 S. C., 124), where the Circuit Court ordered judgment upon the report of the referee, subject to ap.peal to this court, and upon appeal this court held that in a case at law, as that was, the decision below upon questions of law only, material to the case, could be reviewed here, the facts found by the referee being regarded as finally adjudicated, and beyond review; citing the case of Sullivan v. Thomas, 3 S. C. 531. This section, however, has been since stricken out (Gen. Stat. of 1882), and it is now no longer a part of the code, nor was it a .part in 1883, when the order of reference was made in this case. It therefore has no application to the question now under discussion; nor has the case of Kirkland v. Cureton, supra, nor Chalk v. Patterson, 5 S. C., 290, relied on by appellant. On the contrary, sections 294 and 290 are the sections which now control in cases of this kind.

These sections, instead of authorizing judgment to be entered upon the report of the referee in the first instance, as formerly, and thereby becoming the judgment of the court, provide that the referee shall make his decision, stating the facts found and conclusions of law separately, when it may be subject to review upon a case or exceptions in like manner and with like effect as in cases of appeal; and although the court authorized to make the review is not mentioned expressly, yet from the subsequent provisions in the same section, where it is provided that when the case shall have been heard and decided upon the report of the referee and exceptions, the decision may be i-eviewed by the Supreme Court, the implication is manifest and necessary that the Circuit Court is the court authorized to review in the first instance. So that there can be no doubt as to the jurisdiction of said court in such cases.

Now, what is the extent of the jurisdiction of the Circuit Court in a case at law tried by a referee, when the decision of the referee is brought before it for review, as in the case at bar, is the next question. Section 294, supra, is the authority for the review, and it declares the extent of the power conferred. It provides that said review may be had in the same manner and to the same extent as appeal cases under section 290. In other words, it confers the same power upon the Circuit Courts as belongs to this court in appeals here. What is that power? This court, in cases at law, has jurisdiction only for the correction of errors of law. It has nothing to do with the facts, except to apply the law to the facts as found; the facts, as was said in Kirkland v. Cureton, supra, must “be regarded as finally adjudicated,” whether found by a jury, or a referee substituted for the jury, and cannot be modified or reversed on appeal. Nor has the Circuit Court on the review of the referee’s decision any such power. This court, as we have said, has power to correct and review the rulings of law below, and this may sometimes lead to a new trial, and sometimes to a dismissal of the complaint, and so may the action of the Circuit Court upon the review of the referee’s decision,- as that review is expressly authorized in like manner and with like effect as in cases of appeal. But neither-this court nor the Circuit Court is empowered in a case at law to disregard the findings of fact by the referee or the jury, and to re-try the case on its merits. It is conceded, too, that the Circuit Court has power to set aside the decision of the referee and to order a new trial for the reasons for which new trials are usually granted when the necessary steps are taken to that end.

Such being our judgment as to the power of the Circuit Court in such cases, it follows that we must hold that his honor, the Circuit Judge, was in error when he undertook' to review the findings of fact of the referee, and to apply the law to the new state of facts as found by himself. We think he should have taken the facts as reported — should have regarded them as finally adjudicated, and have applied the law as they might demand, reversing or affirming the conclusions of law of the referee as, in his judgment, they were erroneous or correct.

Apart from the question of procedure, the appellant contends, next, that there is such property or interest in the dead body of a human being as to sustain an action for its wilful or negligent mutilation, and that the right of action in such, cases belongs to the administrator of the deceased. This proposition raises three questions as applicable to the case at bar: 1. What is meant by the term property ? 2. Can this property attach to the dead body of a human being ? And, 3. If so, does it belong to the administrator?

The term property may be defined to be the interest which can be acquired in external objects or things. The things themselves are not, in a true sense, property, but they constitute its foundation and material, and the idea of property springs out of the connection, or control, or interest which, according to law, may be acquired in them, or over them. This interest may be absolute, or it may be limited and qualified. It is absolute when a thing is objectively and lawfully appropriated by one to his own use in exclusion of all others. It is limited or qualified when the control acquired falls short of the absolute, which may be the case sometimes for several reasons not necessary to be adverted to here. Now, to entitle one to bring action for an injury to any specific object or thing, he must have a property therein of the one kind or the other mentioned. If he has no such property, he can have no cause of action, however flagrant or reprehensible the act complained of may be.

Can property, either absolute or qualified, be acquired in a corpse, and especially as involved in the case under investigation, can such property be acquired by the administrator of the deceased ? As to absolute property, Mr. Blackslone says: “Though the heir has a property in the monuments and escutcheons of his ancestors, yet he has none in their bodies or ashes.” 2 Bl. Com., 429. In Jae. Fish. Dig. it is said: “A dead body by law belongs to no one, and is therefore under the protection of the public.” Mr. Bishop says: “There can be no property in a person deceased, consequently larceny cannot be committed of his body, but it can be of the clothes found upon the body, or of the shroud.” Bish. Grim. L., § 792. Citing Fast P. C., 652;. Hawkins’ and Hales Pleas of the Croton. Mr. Wharton says : “Corpus humanum non recipit estimationem.” Whart. L. Max., 228. Lord Coke said: The “burial of the cadaver, nullius in bonis, caro data vermibus” ; flesh given to the worms. Mr. Blackstone said again : “This is the case of stealing a shroud out of the grave, which is the property of those, whoever they may be, that buried the deceased, but stealing the corpse itself, which has no owner, (though a great indecency) is no felony, unless some grave’s clothes be stolen with it.” 4 Bl. Com., 235.

These are strong expressions from leading and distinguished authors, all tersely conveying the same doctrine and concurring to the full. We have been referred to no case by appellant in conflict with this doctrine, nor have we been able ourselves to find a case, or a single expression in any text-book, which affects it in the slightest degree. And that this should be so is not surprising. Because, while it is natural that we should all feel that the remains of ancestors and' loved ones should be tenderly watched, and their decent interment carefully guarded, and the mutilation of their dead bodies and the disturbance of their sepulchres severely punished, and while all laws necessary to that end should be passed and strictly and sternly enforced, yet even for this purpose, to make such venerated remains the absolute property of any one, in the sense of objective appropriation, would be abhorrent to every impulse and feeling of our natures.

It is true, it is said that in some portions of Europe during the middle ages the law allowed a creditor to seize the dead body of his debtor, and in ancient Egypt the corpse of the father might be hypothecated by the son in order to borrow money. But these were in semi-barbarous and heathenish times, and such ideas have no existence now in any portion -of the globe. On the contrary, wherever civilization at least has dawned, or has commenced to throw even a flickering light upon the people, reverence for the dead has become a universal and a most sacred sentiment, one which would revolt at the idea of their remains becoming property, much less property in the sense of being appraised and placed upon the inventory of the administrator, subject to the payment of debts, and to distribution among the next of kin, which would be required by the law of this State if such remains could be regarded as property, and on that account passing to the administrator.

But can there not be a qualified property in the dead? one which gives control to some one with the view to protection, to decent interment, and to undisturbed repose, while they are dissolving and returning to the dust from which they were created ? Can it be that there is no legal guardianship of the dead ? And that when the life escapes the body is left, so far as the law is concerned, without protection, even from wanton and malicious depredation, and that those to whom it was bound in life by the tenderest of ties can invoke the aid of no court in preventing its mutilation ? And must they resort to violence and force for this purpose? If such be the fact, it is a reproach to our judicial system, and one which calls earnestly for legislative interposition. And yet such seems to be the fact, at least the matter is left in great doubt, so far as our limited examination of the cases, both in this country and in England, amid the press of our duties, has enabled us to ascertain.

Certainly the administrator has no legal control or authority over the dead body of the person upon whose estate he has administered. His entire authority is derived from the act, by virtue of which his letters have been granted to him, and that gives him charge only of the “goods and chattels, rights and credits,” which were of the deceased. The body of the intestate belongs to neither of these classes, and there is, therefore, no law for him to take it in charge. True, he is required to pay, as the first of debts, the funeral expenses, but it would be a violent assumption to conclude on that account that he becomes the legal custodian of the remains, or even if he should, it could only be so as to the funeral and burial, because the expenses extend no further — they stop at the grave. The question would then arise, who could legally protect beyond that point, and in whose behalf could the law be invoked to redress an invasion of the tomb?

We have looked diligently through the common law reports of England, and have found no case in which the civil courts have been appealed to in mattei's connected with the bodies of the dead. On the contrary, their burial, the grave-yards and cemeteries in which they are interred, and the religious ceremonies observed, have been left exclusively to ecclesiastical cognizance, the civil courts universally holding, in the language of Lord Coke, that the burial of the cadaver is nullius in bonis. In some of the States upon this continent, especially in Rhode Island, Indiana, Pennsylvania, and New York, the courts, endeavoring to escape from this reproach, have held in general terms that the corpse belongs, not to the administrator, but to the next of kin, and that is as far as the cases referred to by appellant’s counsel seem to go.

In the case of Pierce v. Proprietors of Swan Point Cemetery (10 R. I., 227), it was held that while a dead body is not property in the strict sense of the common law, it is quasi property, over which the relatives of the deceased have rights which the courts will protect. In the case of In re Widening Beekman Street (4 Bradf. Rep., 508), it was held that the right to bury the corpse and to preserve its remains is a legal right which the courts will protect; that such right, in the absence of any testamentary disposition, belongs exclusively to the next of kin. In Bogert v. City of Indianopolis (13 Ind., 135), it was held that the bodies of the dead belong to the surviving relatives in the order of inheritance, as property. In Wynkoop v. Wynkoop (42 Pa. St., 293), it was held: “That a wife has no right or control over the body of her husband deceased, after burial. The disposition of the remains of the deceased belongs thereafter exclusively to his next of kin; that though it was her duty to bury the body, that as widow after interment her right ended.”

Upon what authority or established principle of the common law these decisions were founded, even to the extent of legalizing the right of the nearest of kin, does not fully appear, but they afford no support to the position that the administrator has any. control whatever, which is the question here. We have no case in our own reports upon the subject, certainly no case bearing upon the precise point before us, i. e., the rights of the administrator. In the absence of all authority, and looking at the act which authorizes administration, and defines the duties and powers of administrators, and describes the property which by operation of law becomes his, we are constrained to the conclusion, that so far as this action is founded upon the mutilation of the deceased by the defendant company, whether accidental, wilful,, or negligent, it cannot be sustained by the plaintiff, and that his honor, the Circuit Judge, was correct in so holding.

This, however, does not apply to the clothes in which the body was clad, and the silver watch upon the person. As to these, the administrator ivas the legal owner, and his appointment, though made after the occurrence, reached to the death, his title commencing at that time. As to these, then, the action was maintainable, and we think that his honor was in error in not so holding. McClanes Adm'r v. Elder, 2 Mill Con. R., 184; Dealy v. Lance, 2 Speer, 487.

But the majority of this court having, in the case of Meetze v. C. C. & A. R. R. Co. (ante 1), determined that the Circuit Judge had the power to review and reverse the findings of fact of the referee, and he having exercised that power in this case—

The judgment of this court, thérefore, is that the judgment of the Circuit Court be affirmed.