Lake Erie & Western Railroad v. James

35 N.E. 395, 10 Ind. App. 550, 1893 Ind. App. LEXIS 30

• Court: Indiana Court of Appeals
• Decided: November 24, 1893
• Docket: No. 967
• Status: Published

Opinions

Gavin, C. J.

The appellee sued appellant to recover damages for its refusal to receive and carry the remains of his deceased wife upon its passenger train.

The State Board of Health is created by statute, and, among other things, ‘ ‘they may adopt rules and by-laws subject to the provisions of this act, and in harmony with the other statutes in relation to the public health, to prevent outbreaks and the spread of contagious and infectious diseases.” Section 5, Acts 1891, p. 16. In order to carry out the purposes of the law, this board adopted regulations concerning the transit of dead bodies. Rule 5 is as follows: “Every dead body must be accompanied by a person in charge, who must be provided with a ticket, and also present a full first-class ticket marked ‘corpse,’ and a transit permit from board of health or proper health authority, giving permission for the removal, and showing name of deceased, age, place of death, cause of death (and if of a contagious or infectious nature), the point to which it is to be shipped, medical attendant, and name of’undertaker.”

The transit permit presented by appellee to the appellant did not contain the name of the medical attendant, as required by this regulation. This being the case, was the refusal of the appellant wrongful?

That the legislature may confer upon the board of health power to make reasonable rules and regulations for the preservation of the public health, is not controverted . The powers thus given should be construed liberally, for the advancement of the purposes for which they were bestowed. Gregory v. City of New York, 40 N. Y. 273; Polinsky v. People, etc., 73 N. Y. 65.

It was clearly within the power of the board of health to make the regulation set out above, with reference to the transmission of dead bodies. Such a provision, reasonable in its character, should be upheld and sustained by the courts. The end sought to be accomplished by it is the protection of the people from the spread of contagious diseases.

Unless appellee, by his complaint, shows some right to have been violated, he can not recover damages. Before the appellant can be required to respond, it must be shown to have violated some duty owing from it to the appellee whereby the damage has been caused. The appellee had no legal right to require of the appellant that the body should be carried without a substantial compliance, upon his part, with the regulations of the board of health. The name of the medical attendant must be deemed a material and essential part of this transit permit. We can not agree that the railroad company must be satisfied with a permit, signed by the health officer, authorizing the removal, whether it conforms to the requirements of the rules or not. It is entitled to and should require a permit complying in all essential features with the requirements of the rules, that the community at large may be properly protected from the evil results which might follow the transmission of infected bodies upon the train.

Filed Nov. 24, 1893.

While some hardship and inconvenience may thus at times be imposed upon individuals, the comfort of the individual must yield to the good of the public in general.

The appellee’s complaint not showing in him a legal right to demand the carrying of the body, no wrong appears from the appellant’s refusal to do so.

The judgment is reversed, with instructions to sustain the demurrer to the complaint.