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  "name": "MICKEY DUMOUCHELLE AND TWYLA NARAGON v. DUKE UNIVERSITY",
  "name_abbreviation": "Dumouchelle v. Duke University",
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    "judges": [
      "Chief Judge VAUGHN and Judge HEDRICK concur."
    ],
    "parties": [
      "MICKEY DUMOUCHELLE AND TWYLA NARAGON v. DUKE UNIVERSITY"
    ],
    "opinions": [
      {
        "text": "WELLS, Judge.\nA motion for summary judgment is properly granted under N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) of the Rules of Civil Procedure \u201cif the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law.\u201d Lowe v. Bradford, 305 N.C. 366, 289 S.E. 2d 363 (1982). Summary judgment is a somewhat drastic remedy and should be granted cautiously, especially in actions alleging negligence as a basis of recovery. McNair v. Boyette, 282 N.C. 230, 192 S.E. 2d 457 (1972).\nPlaintiffs contend that the trial judge erred in granting summary judgment for defendant because genuine issues of material fact remain and because defendant is not entitled to judgment as a matter of law.\nIn reviewing the merits of plaintiffs\u2019 appeal, we turn first to their claim for damages for mental anguish resulting from defendant\u2019s alleged negligent disposition of Mrs. Post\u2019s body. In order to establish actionable negligence, plaintiff must show (1) that there has been a failure to exercise proper care in the performance of some legal duty which defendant owed to plaintiff under the circumstances in which they were placed; and (2) that such negligent breach of duty was a proximate cause of plaintiffs\u2019 injury. See Hairston v. Alexander Tank & Equipment Co., 310 N.C. 227, 311 S.E. 2d 559 (1984) and cases cited therein.\nThe person entitled to possession of a body may recover damages for mental suffering caused by negligent or intentional mishandling or mutilation of the body, Parker v. Quinn-McGowen Co., 262 N.C. 560, 138 S.E. 2d 214 (1964). If such mishandling or mutilation is wilful, malicious or grossly negligent, punitive damages may also be recovered. Id. As a general rule, only the person entitled to possession and disposition of a body may maintain an action for mishandling or mutilation of the body. See Gurganious v. Simpson, 213 N.C. 613, 197 S.E. 163 (1938), Annot., 48 A.L.R. 3d 261 (1973).\nIn the case before us, plaintiffs allege no mutilation of their mother\u2019s body by defendant, but only that the body was mishandled when defendant arranged for burial of Mrs. Post\u2019s body, instead of cremation, as requested by plaintiffs. Plaintiffs\u2019 argument rests upon the proposition that a decedent\u2019s nearest next-of-kin have final authority over funeral arrangements. As a general rule, the next-of-kin have the right to possess the body of a decedent for the purpose of burial. Parker v. Quinn-McGowen Co., supra. The issue of whether the wishes of the decedent concerning burial may prevail over those of the next-of-kin has never been directly addressed by the courts of our state. There is authority, however, for the proposition that a testamentary provision concerning burial should override contrary wishes of the decedent\u2019s next-of-kin. In Kyles v. R. R., 147 N.C. 394, 61 S.E. 278 (1908) our supreme court noted in dicta that \u201c[t]he right to the possession of a dead body for the purpose of preservation and burial belongs, in the absence of any testamentary disposition, to the surviving husband or wife or next of kin . . .\u201d (Emphasis added.) Although the foregoing language was dicta, it has been cited with approval by our supreme court in at least one later case, Floyd v. R.R., 167 N.C. 55, 83 S.E. 12 (1914) and we see no reason to adopt a contrary rule today. Parker v. Quinn-McGowen Co., supra, cited by plaintiffs as opposing authority, is inapposite as it does not deal directly with the issue whether the wishes of the next-of-kin prevail over a testamentary provision for disposition of the testator\u2019s body.\nPlaintiffs also contend that the language of N.C. Gen. Stat. \u00a7 90-210.25(e)(2) (1981 & 1983 Cum. Supp.) expresses a legislative intent that the wishes of the next-of-kin concerning funeral arrangements must prevail. The statute provides, in relevant part: \u201cNo funeral service establishment shall accept a dead human body . . . without having first made due inquiry as to the desires of the next of kin ... If any such kin be found, his or her authority and directions shall govern the disposal of the remains of such decedent. . . .\u201d The statute plaintiffs rely on does not resolve the issue before us, as it does not directly address the question of the effect of a testamentary provision for funeral arrangements.\nPlaintiffs next contend that an executor has no authority to act prior to formal appointment by a probate court. Plaintiffs overlook N.C. Gen. Stat. \u00a7 28A-13-1 (1976) which provides, in pertinent part:\nThe duties and powers of a personal representative commence upon his appointment. The powers of a personal representative relate back to give acts by the person appointed which are beneficial to the estate occurring prior to appointment the same effect as those occurring thereafter. Prior to appointment, a person named executor in a will may carry out written instructions of the decedent relating to his body, funeral and burial arrangements. . . .\nPlaintiffs also argue that a testamentary provision for disposition of the testator\u2019s body can have no validity before the will is probated, but cite no authority for their position. Plaintiffs\u2019 argument runs counter to the intent of G.S. \u00a7 28A-13-1. Since the terms of the statute clearly permit a personal representative to carry out written funeral instructions before formal appointment, it follows that there is no need to wait for probate when the instructions are contained in a will. We find further support for our position in N.C. Gen. Stat. \u00a7 130A-406 (1983 Supp.), which provides that gift of part or all of a body may be made by will and becomes effective on the death of the donor without waiting for probate. If the will is later declared invalid, the anatomical gift remains valid to the extent that it has been acted upon in good faith. We think that a similar rule should apply to cases of testamentary directions for disposition of the testator\u2019s body. The provision must be treated as valid upon the death of the testator, and funeral directors who act upon the provision in good faith cannot later be held liable in tort because they acted before the will was probated.\nPlaintiffs next contend that, even if the wishes of a testator prevail over those of the next-of-kin, defendant had a duty to inform them of the change in funeral plans before they took place. Again, plaintiffs cite no support for their position nor are we willing to impose such a duty.\nBased on the foregoing discussion, we hold that a testamentary provision directing disposition of the testator\u2019s body must prevail over conflicting wishes of the testator\u2019s next-of-kin. It follows that the next-of-kin in such a case have no right to possession of the body for the purpose of selecting funeral arrangements and therefore they have no standing to sue defendant for negligence for its failure to carry out the cremation of Mrs. Post\u2019s body. Accord, O\u2019Dea v. Mitchell, 350 Mass. 163, 213 N.E. 2d 870 (1966).\nWe turn now to plaintiffs\u2019 claim for mental anguish stemming from defendant\u2019s breach of the cremation contract. Plaintiffs\u2019 standing to sue for breach of the contract rests upon the right to direct disposition of their mother\u2019s body, for the reasons stated in the discussion of plaintiffs\u2019 tort claim. While plaintiffs may neither enforce the cremation contract, nor collect damages for mental anguish caused by its breach, defendant must return the $200.00 cremation fee to plaintiffs to avoid unjust enrichment. Defendant has stipulated that plaintiffs are entitled to a refund, and the record clearly shows that plaintiffs\u2019 attorney has been issued a $200.00 check by defendant. Under the facts before us, we hold that summary judgment was properly entered for defendant.\nAffirmed.\nChief Judge VAUGHN and Judge HEDRICK concur.\n. The courts of other jurisdictions are somewhat divided over the degree of deference accorded a decedent\u2019s wishes concerning disposition of his or her body, Annots., 54 A.L.R. 3d 1037 (1973), 7 A.L.R. 3d 747 (1966), although most courts appear to accord at least some weight to the decedent\u2019s expressed desires. Id.\n. Although we only decide today that a written testamentary provision overrules conflicting wishes of the next-of-kin concerning disposition of the testator's body, we note that G.S. \u00a7 28A-13-1 permits the personal representative of the deceased to carry out written instructions pertaining to disposition of the body, whether they appear in a will or not. The statute does not deal with the authority of other persons to carry out the deceased\u2019s wishes, nor does it discuss the validity of oral instructions. As a general rule, we note that courts of most other jurisdictions appear to permit enforcement of orally stated preferences, see Annot., 54 A.L.R. 3d 1037 (1973) and cases cited therein.",
        "type": "majority",
        "author": "WELLS, Judge."
      }
    ],
    "attorneys": [
      "Richard N. Weintraub for plaintiffs.",
      "Newsom, Graham, Hedrick, Bryson, Kennon & Faison, by E. C. Bryson, Jr. and David S. Kennett, for defendant."
    ],
    "corrections": "",
    "head_matter": "MICKEY DUMOUCHELLE AND TWYLA NARAGON v. DUKE UNIVERSITY\nNo. 8314SC924\n(Filed 3 July 1984)\n1. Dead Bodies \u00a7 3\u2014 damages for mishandling or mutilation of body\nThe person entitled to possession of a body may recover damages for mental suffering caused by negligent or intentional mishandling or mutilation of the body, and if such mishandling or mutilation is wilful, malicious or grossly negligent, punitive damages may also be recovered.\n2. Dead Bodies g 1\u2014 funeral arrangements \u2014 wishes of next-of-kin contrary to wishes of decedent \u2014 effect of statute\nThe statute providing that directions of the next-of-kin shall govern the disposal of the remains of a decedent, G.S. 90-210.25(e)(2), does not express a legislative intent that the wishes of the next-of-kin concerning funeral arrangements must prevail over the wishes of the decedent.\n3. Dead Bodies \u00a7 1\u2014 instructions in will concerning burial \u2014 authority of executor to act before probate\nSince G.S. 28A-13-1 clearly permits a personal representative to carry out written funeral instructions before formal appointment, it follows that there is no need to wait for probate when the instructions are contained in the will. G.S. 130A-406.\n4. Dead Bodies \u00a7 1\u2014 burial instructions by next-of-kin \u2014 contrary instructions by personal representative \u2014 no duty to inform next-of-kin\nWhere decedent\u2019s next-of-kin instructed defendant hospital to cremate decedent\u2019s body, but decedent\u2019s personal representative canceled the cremation and instructed defendant to send the body to Ohio for burial pursuant to decedent\u2019s wishes, defendant had no duty to inform the next-of-kin of the change in funeral plans before they took place.\n5. Dead Bodies \u00a7 1\u2014 testamentary provision for burial \u2014 conflicting wishes of next-of-kin\nA testamentary provision directing disposition of the decedent\u2019s body must prevail over conflicting wishes of the decedent\u2019s next-of-kin. Therefore, the next-of-kin in such a case have no right to possession of the body for the purpose of selecting funeral arrangements and have no standing to sue defendant hospital for negligence in its failure to carry out their instructions for cremation of decedent\u2019s body.\nAPPEAL by plaintiffs from Lee, Judge. Order entered 16 May 1983 in Durham County Superior Court. Heard in the Court of Appeals 4 June 1984.\nPlaintiffs filed this suit against defendant, seeking compensatory and punitive damages for alleged breach of contract and negligence relating to the disposition of their mother\u2019s body.\nThe pleadings, affidavits and answers to discovery reveal the following events and circumstances. Plaintiffs\u2019 mother, a Florida resident, died in defendant\u2019s hospital on 5 September 1980. Upon learning of their mother\u2019s death, plaintiffs paid $200.00 and instructed defendant to cremate the body. Plaintiffs then drove to Florida, where they discovered their mother\u2019s will and learned for the first time that it was Mrs. Post\u2019s wish to be buried in Ohio. Plaintiffs did not attempt to cancel the cremation as they believed it had already been completed. Plaintiffs then contacted Robert Randolph, Mrs. Post\u2019s grandson, and told him that he had been named executor of the will, but did not inform him of the provision for burial in Ohio.\nDuring her life Mrs. Post told Randolph she wanted to be buried in Ohio, and on learning of her death, Randolph telephoned defendant and cancelled the cremation. It is unclear whether Randolph told defendant that the change in funeral plans was due to his personal wishes or those of Mrs. Post. Defendant did not contact plaintiffs or consult them before carrying out Randolph\u2019s instructions to have the body shipped to Ohio for burial. Plaintiffs learned of the change in plans about two months later.\nDefendant issued a refund check for the $200.00 cremation fee in September 1980, but the check was returned uncancelled. After plaintiffs filed suit, defendant sent another check to plaintiffs\u2019 attorney on 1 April 1982.\nFollowing completion of discovery, defendant moved for summary judgment, which was granted on 20 July 1983. From entry of the order granting defendant\u2019s motion, plaintiffs appealed.\nRichard N. Weintraub for plaintiffs.\nNewsom, Graham, Hedrick, Bryson, Kennon & Faison, by E. C. Bryson, Jr. and David S. Kennett, for defendant."
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