#### HATTIE G. KYLES v. SOUTHERN RAILWAY COMPANY.

(Filed 22 April, 1908).

1. Judgment — Nonsuit—Evidence,' How Considered — Questions for Jury.

In consideration of the question as of nonsuit upon the evidence the courts will accept the evidence in the most favorable light to the plaintiff; and if there is any evidence, or if different minds can draw different conclusions, it is the duty of the trial Judge to submit the case to the jury.

2. Dead Bodies — Unlawful Mutilation — Widow—Right of Action.

When a widow is living with her husband at the time of his death she has, nothing else appearing, a right of action superior to that of the next of kin for the unlawful mutilation of the remains of her deceased husband.

3. Dead Bodies — Quasi Property — Wrongful Mutilation — Actionable.

While dead bodies are not recognized at common law as property, they aré quasi property, and wrongful mutilation thereof is actionable.

4. Same — Evidence—Punitive Damages, When Recoverable — Wantonness and Malice.

In a suit by the widow punitive damages are recoverable for defendant’s breach of duty in knowingly permitting the mutilated and dismembered body of deceased to remain upon or along its track in an unprotected condition, to be repeatedly run over by its trains, when it was from a willful, wanton or malicious motive.

*3955. Same — Evidence Insufficient.

'JTkere is no evidence of a willful, wanton or malicious motive on the part of defendant or its employees when it appears that the deceased, who was killed by one of defendant’s engines, was permitted to remain along defendant’s track and was repeatedly run over and mutilated, and when it was done at night or under such conditions as to cause the employees not to be aware thereof.

6. Same.

Evidence that the section master manifested some impatience at the prospect of guarding the remains held incompetent.

Actios tried before Justice, J., and a jury, at November Term, 1907, of Ibekell.

Plaintiff appealed. The facts are stated in the opinion.

Armfield & Turner and II. P. Grier for plaintiff.

L. C. Caldwell for defendant.

ClaRK, O. J.

The complaint alleges (1) the careless and negligent mutilation of the dead body of plaintiff’s husband by continuously running its train back and forth over it for nearly twenty-four hours after the killing, the body all this time lying exposed on the track between the rails; (2) the willful, wanton and reckless mutilation of the dead body of plaintiff’s husband by above-recited conduct; (3) for negligent failure to gather up his remains for burial, in that a portion of his remains were not sent home, but lay alongside of the track for four days, till gathered up by relatives, who carried them home, reopened the grave and buried these remains with those which had been sent by the defendant company. There is no allegation of wrongful death or negligent killing, in which case the cause of .action is created by the statute and is vested in the personal representative. Eevisal, sec. 59; Killian v. Railroad, 128 N. C., 261.

As the court below granted a nonsuit, if there is any evidence of either of the matters alleged, whether of willful and wanton or merely negligent misconduct, the nonsuit must be set aside, as they are not separate causes of action, and it is *396not necessary to discuss tbe testimony further than to ascertain if there is evidence of the cause of action to submit the casé to the jury. Matters in defense or in exculpation have no place here, but should be heard on the new trial below.

Was there any evidence of mutilation of the dead body of the deceased except that incident to the killing? If so, his Honor erred in not submitting the case to the jury. In considering this question the courts will accept the evidence in the most favorable light to the plaintiff, and if there is any evidence or if different minds can draw different conclusions, it is the duty of the trial Judge to submit the case to the jury. House v. Railroad, 131 N. C., 103; White v. Railroad, 121 N. C., 484; Wittkowsky v. Wasson, 71 N. C., 454; Moore v. Railroad, 128 N. C., 455. The body was found on the defendant’s track — head, pool of blood, hair, eyeballs, etc., near the four-mile post from Salisbury; arms and legs 75 yards farther in direction of Salisbury, and the body 250 or 275 yards from head in the same direction; hair, blood and parts of body along track, inside and outside of the rails, for some distance; and evidence that body was dragged and knocked from one side, of the track to the other; hair on angle bars or nuts where the rails are joined. The body was stripped 'of its head, legs and arms and all clothing; overcoat found near the place, torn and cut; a piece of it was found one mile east of the body, and a pocket west of Statesville, 27 miles therefrom, in a different direction. The drawers were picked up on the track one-fourth of a mile west from body. Between 9 o’clock on the evening of the 19th and 6 o’clock on the afternoon of the 20th the body and its fragments lay strewn up and down the track between the rails and' were ran over by every passing train. During this time fifteen or more trains passed over the defendant’s track-six or more during the night and six or more during the day — after tire defendant’s agents discovered the body, and one train was seen to strike the body as it lay upon the track. The watch *397that tlie deceased wore was mashed, and the hands pointed to 7% minutes to 9 o’clock. Train No. 12 passed the four-mile post going towards Salisbury and the scene of the killing about this time, with a full headlight. The track was straight for one mile each way and no object was discovered upon the track, as the engineer swore. Train No. 35, from Salisbury, passed No. 12 near that city, and passed the four-mile post a few minutes thereafter. This last train evidently struck the deceased first. That the body was further mutilated is shown by the fact that the headless body was 250 or more yards east of the four-mile post; the drawers were found l1/^ miles west; a part of the overcoat a mile east; pocket of overcoat 27 miles west; arms 7 5 yards east and on north side of track; legs still further east and on the south side of track; head near the four-mile post, and hair all along down the track on angle bars; trunk all rolled up in cinders and dirt, and mangled and mutilated beyond recognition. A dozen or more trains passed over the body, as already stated, and one was seen to strike it. This evidence of all these things can hardly be reconciled with the theory that only one tram struck the deceased.

The evidence indicates rather that the body was struck after death by different trains going east and west, and that it and parts thereof were thrown hither and thither, backwards and forwards, by the passing trains going in opposite directions. This was an infringement upon the legal right of the plaintiff to have the body for burial in the condition in which it was when life became extinct. To hold otherwise would be a violation of “rights and duties recognized by the laws and usages of society as growing out of the natural relations of human beings to each other and the divine and human laws which bind society together.” Thayer, J., in Fox v. Gordon, 16 Phila. (Pa.), 185.

All the employees of the defendant who participated in the mutilation of the body were retained in the defendant’s em*398ployment. This Avas a ratification, and it cannot be heard to say that the act Avas unauthorized. 12 A. and E. (2d Ed.), 36 et seq.

The nonsuit, however, it seems, Avas granted, not on the ground of lad! of evidence to support the allegations of fact in the complaint, but on the ground that they did not constitute a cause of action. As this is the first time that such cause of action has been presented in the history of this Court, it is proper to review somewhat the authorities elsewhere Avhich sustain the proposition that mutilation of a dead body entitles the surviving husband or wiffe (and if none, the next of kin) to recover compensatory damages for the mental anguish caused thereby, and, in addition, punitory damages, if such conduct Avas willful and wanton or in recklessness of the rights of others.

The 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 Avife or next of kin, and when the Avidow Avas living Avith her husband at the time of his death her right to the possession of the husband’s body for such purpose is paramount to the next of kin. Larson v. Chase, 47 Minn., 307. A widow has a right of action for the unlawful mutilation of the remains of her deceased husband. Larson v. Chase, supra; 28 Am. State, 370; Foley v. Phelps, 37 N. Y. Supp., 471.

While a dead body is not property in the strict sense of the common law, yet the right to bury a corpse and preserve its remains is a legal right which the courts will recognize and protect, and any violation of it will give rise to an action for damages. 8 A. and E. (2d Ed.), 834, and cases cited; 13 Cyc., 280, and cases cited. While the common law does not recognize dead bodies as property, the courts of America and other Christian and civilized countries have held that they are quasi property and that any mutilation thereof is actionable. Larson v. Chase, supra.

*399Tbis is not an action for tire negligent killing of tbe deceased, but an action by tbe widow [8 A. and E. (2d Ed.), 838, and cases cited] for tbe willful, unlawful, wanton and negligent mutilation of bis dead body. Sbe was entitled to bis remains in tbe condition found when life became extinct; and for any mutilation incident to tbe killing tbe defendant would not be liable, but it is liable in law for any furtber mutilation thereof after death, if done .either willfully, recklessly, wantonly, unlawfully or negligently. Larson v. Chase, supra; Foley v. Phelps, supra; Railroad v. Wilson, 123 Ga., 62; Lindh v. Railroad (Minn.), 7 L. R. A. (N. S.), 1018. Where tbe rights of one legally entitled to the custody of a dead body are violated by mutilation of tbe body or otherwise, tbe party injured may in an action for damages recover for tbe mental suffering caused by tbe injury. Perley Mortuary Law, 20; Reniham v. Wright, 125 Ind., 536; Larson v. Chase, supra; Hole v. Bonner, 82 Texas, 33.

In Larson v. Chase, 47 Minn., 311, it is said, discussing tbis cause of action: “Where tbe wrongful act constitutes an infringement of a legal right, mental suffering may be recovered for, if it is tbe direct, proximate and natural result of tbe wrongful act. It was early settled that substantial damages might be recovered in a class of torts where tbe only injury suffered is mental, as, for example, an assault without physical contact. So, too, in actions for false imprisonment, where tbe plaintiff was not touched by tbe defendant, substantial damages have been recovered, though physically tbe plaintiff did not suffer any actual detriment. In an action for seduction substantial damages are allowed for mental sufferings, although there be no proof of actual pecuniary damages other than tbe nominal damages which the law presumes. The same is true in actions for breach of promise of marriage. Wherever the act complained of constitutes a violation of some legal right of the plaintiff which always in contemplation of law causes injury, he is entitled to recover all dam*400ages which are the proximate and. natural consequence of the wrongful act. That mental suffering and injury to the feelings would be the ordinary and proximate result of knowledge that the remains of a deceased husband had been mutilated is too plain to admit of argument.” This case cites Meagher v. Driscoll, 99 Mass., 281, where a father recovered damages for-mental anguish in digging up and removing the body of his child. Chase v. Larson, supra, is quoted and followed by many cases, among them Foley v. Phelps, 37 N. Y. Supp., 471. “Where the injury inflicted upon the plaintiffs was an unlawful and unwarranted interference with the right of decent burial, .and such conduct was wanton or malicious or the-result of gross negligence or reckless disregard of the rights of others, exemplary damages may be awarded.” Wright v. Hollywood, 112 Ga., 884. This whole subject is fully reviewed, with full citation of authorities sustaining the right of action for compensatory damages for reckless indifference to the rights of others, by Judge Dodge in the late ease (1905) of Koerber v. Patek, 123 Wis., 462-467. In Lombard v. Lennox, 155 Mass., 70, it is said: “If the ordinary and natural consequence of the tort is.to cause an injury to the feelings of the plaintiff, and if the acts are done willfully or with gross carelessness of the rights of the plaintiff, damages maybe-recovered for mental sufferings.” To same purport 1 Sedg. Dam. (8th Ed.), secs. 43-47; 1 Suth. Dam., secs. 95 ei seq. The defendant also owed the plaintiff the duty to gather the body and its fragments and prepare the same for burial, and a negligent failure to do so was an infringement upon her legal rights, and therefore actionable. Commonwealth v. Susquehanna Coal Co., 5 Kulp, 195 (Pa. case, 1889); Scott v. Riley, 40 Leg. Int., 382 (Pa. case). Parts of the body were left along the track and gathered up by the father on the Monday following.

It is no answer to- such negligence or indifference to say that the defendant did not remove the body from the track *401because the section master was waiting for the coroner. Humanity and decency required that the body and its scattered members should be reverently picked up, laid off the track in some nearby spot and sheltered by a covering from the sun and flies and dust and irreverent eyes, and protected from the dogs by some better agency than, according to the testimony, the volunteer aid of small boys attracted thither by curiosity, but who showed more respect for humanity than those who represented this defendant. On this condition of affairs being reported to the proper official, he should have seen that such steps were promptly taken as were required by decency and the respect shown in all civilized communities to the dead. It could in nowise aid the investigation of the coroner to expose the headless body on the track beneath the passing trains, becoming begrimed with cinders and dust beyond recognition, nor was there excuse for leaving the other portions of the body uncollected and scattered up and down the track, and for days even after a part of the body was sent home. Besides, there was negligence in keeping the body for eleven hours waiting for a coroner, when Salisbury was only four miles distant. The president of the defendant company was unfortunately killed on its track not long since. Was his body thus kept on the track to be run over by passing trains all day long, waiting for the coroner?

The above facts, if sustained on the trial, will entitle the plaintiff to recover damages for mental anguish for such indignities to the body of her husband, and punitive damages also, if the jury find that such conduct was willful and wanton or in reckless indifference to the rights and feelings of the plaintiff and to their own duties. The jury should, however, be cautioned (as in actions for delay in delivery of telegrams concerning sickness and death) to carefully dissociate this from the plaintiff’s grief at learning of the death of her husband, for this action does not concern that phase of the case. Nor is the plaintiff entitled to recover anything for grief at *402seeing tbe condition of tbe body in tbe coffin. Sbe knew, or her friends should bave told her, of tbe condition’ of tbe remains, and sbe herself is to blame that sbe chose to look in upon them. It may have been a natural impulse, but tbe defendant is not responsible for tbe mental anguish resulting therefrom.

Respect for tbe dead is an instinct that none may violate. The democracy of death is superior to tbe edicts of kings. Rizpab became forever famous among her kind when sbe defied tbe King of Israel, who would treat tbe bodies of her dead with contempt. Sophocles has immortalized Antigone, who vindicated tbe like sentiment of human nature as a higher law than that of her sovereign.

Tbe deceased may bave moved in tbe bumbler walks of life, but to tbe plaintiff be was husband and tbe father of her children. It was her right, old as time, as- broad as humanity and as deep* as tbe heart of man, that bis mortal remains should be treated with due respect. So far as tbe defendant, through its agents, recklessly, willfully or negligently failed to do’ this, it has violated her rights under tbe law. What damages will compensate her for tbe mental anguish tbe defendant’s conduct has caused her, .and Avhat would be proper punitory damages for tbe recklessness, negligence or indifference of its agents (if proven), is a matter for a jury of her countrymen to determine, subject to tbe supervision of a just Judge, that .an excessive sum be not assessed.

This action is brought by tbe widow of an employee of tbe Southern Railway Company. It is brought against tbe corporation and not against any of its employees. Employees of railroads render arduouá and usually faithful service and are subject to many dangers, some of which cannot be avoided and some that can and should be. That they render faithful service when living is no excuse for indignities to their bodies when dead. Tbe engineers on these passing trains could not risk their trains by stopping without orders. Tbe responsibility for keeping this body on tbe track, with the attendant *403and revolting details, rests not with them, but on some one “higher up.”

PIoKE, J., concurring.

BeowN, J.,

concurring:. While I am of opinion that his Honor erred in sustaining the motion to nonsuit, the grounds upon which I base this conclusion are entirely different from those stated in the opinion of the Court.

The plaintiff claims damage of the defendant:

(1) For that the servants of the defendant, its engineers, willfully, wantonly and brutally mutilated the dead body of her husband.

(2) For the negligent failure to gather up his remains and prepare the same for burial.

A most careful examination of the record convinces me that there is no evidence to support the first allegation, either as against the engineers, the section master or any other employee of the defendant.

I should be loth to charge any man with the willful, wanton and brutal mutilation of the dead, much less those men who daily take their lives in their hands for our benefit and who belong to a profession whose unpretending, self-sacrificing heroism has been immortalized in song and story. Many of them, in endeavoring to save the lives of those committed to their care, have held an unfaltering hand upon the lever when they knew they were rushing onward to certain 'death. Many humble heroes of the throttle have, like Jim Bludsoe,

> “Held lier nozzle ag’in’ the hank

> ’Til the last galoot’s ashore,”

and then died at the post of duty that others, whom they did not even know, might live.

The evidence, to sustain such an accusation and against such men, should be clear, not only as to fact of mutilation, but that the engineers of the defendant did it willfully, wantonly and therefore knowingly.

*404Tbe evidence taken on tbe trial was all introduced by tbe plaintiff, and, as I read it, there is nothing to show a willful and wanton mutilation upon tbe part of any engineer of the defendant or any other employee of tbe defendant. It is admitted that tbe deceased was not killed through any negligence of defendant’s servants, and no claim is made for such negligent killing.

Tbe evidence tends to prove that plaintiff’s husband, Robert Kyles, an employee of defendant, left Statesville on 19 January, 1905, on defendant’s train for Landis, Cabarrus County, and that be intended to stop off somewhere that night m route to visit his aunt. It seems to be conceded that the deceased never reached Salisbury, and it appears that he was killed somewhere near the four-mile post from Salisbury. At that point blood, brains and hair were first discovered on the rail. Farther down the trunk of the body was found, rolled over and lying in between the rails and almost unrecognizable as that of a human being. The watch of the deceased was found near the four-mile post, mashed in and the hands stopped at 7% minutes to 9. The engineer, Keever, of train No. 12, testifying for plaintiff, states that his train passed this spot at 8:53 P. HI.; that his electric headlight was shining, and that he neither saw nor struck anyone on the track, and if he had.struck a man with the pilot of his engine he would have known it. There is no evidence that the deceased was struck by any engine, and the condition of the body repels that theory. All the evidence tends to prove that the body was not thrown from the track by the pilot, but that the fragments of the body — limbs, blood, hair and clothing — were carried eastward for a mile or more from the point on the track where the evidence of his death was first seen. It was on an eastbound train that the deceased left Statesville on the evening of the 19th, and it is a most reasonable and in fact about the only legitimate inference to draw from the facts and circumstances in evidence that the deceased fell from the train upon which he was traveling, between the cars, and, becoming entangled *405in tbe machinery under the cars, was ground up .and his body crushed and dismembered in the running gear and rods under the cars, and his flesh and blood scattered for some distance along the track. It would require only a second or two to do this at the usual speed of a passenger train.

Assuming that during the night defendant’s engines passed over the remains as they lay scattered along the track between the rails, it was ignorantly done upon the part of the engineers. It cannot be said to have been wantonly and willfully done unless knowingly done. There is not a scintilla of evidence that any engineer of defendant knew that the scattered debris of a human body were anywhere on the track until next morning. The only part of the remains found between the rails (nothing was found on the rails except blood and hair) was the trunk of the body, with an arm doubled up under it, and a hand and a foot and legs. The body was rolled over, lying in between the rails, in an unrecognizable mass. The witnesses testified that “it was a mighty hard matter to tell what the body was by itself.” The legs were equally as difficult to recognize and were 100 yards west from the trunk. All the evidence shows that, if the engineers ran over these remains during the night, they not only did it ignorantly, but that no human eye could have discovered from the cab window of a rushing engine what they were.

As to the actual mutilation by passing engines during the day, after the remains were discovered to be those of a human being, there is hardly a scintilla of evidence, and absolutely nothing to indicate wanton and willful injury.

After the body was discovered next day the witnesses testify that the passing trains were stopped and passed slowly over the body without touching it, except in one instance. One witness states that in passing over the dead trunk between the rails an engine rod on one engine touched the shoulder, but did not cut or mutilate it. Why these remains were allowed to remain on the track all day is best explained by plaintiff’s witness, J. M. Nice, who says:

> *406“Q. Why was it you did not take bis body off tbe track before that?

> “A. We did not think we had any right to move it. People said not to move it until the coroner got there. Some said move it and others said don’t until the coroner comes.

> “Q. And after the coroner came the remains that had been found up to that time were picked up' and taken to Salisbury?

> “A. Yes, sir.”

The persons who insisted on not touching the remains until the coroner came were the citizens of the .neighborhood, and they were governed by what we all know to be a very prevalent error as to the requirements of the law. I fully agree with the learned counsel for plaintiff that the defendant owed the plaintiff the duty to gather the body of her husband and its fragments found on its track and to decently protect and prepare them for burial. A negligent failure to do so is an infringement of the plaintiff’s legal rights and therefore actionable. Therefore, if the section master negligently permitted the remains to be exposed on the track and failed to properly care for them, the defendant would be liable to plaintiff in damages for such actual physical, including mental, suffering as she sustained by reason of the knowledge thereof, notwithstanding the fact that the section master acted in good faith and under a mistaken sense of duty.

If there was any evidence that the section master refused to remove, the remains from a willful, wanton or malicious motive, I should say that, in addition to actual or compensatory damages, punitive damages would be allowable in the discretion of the jury. But there is no such evidence in the record. It is perfectly evident from the testimony of Rice and other witnesses that the section master failed to' remove the body out of deference to the prevalent opinion that the coroner .must first be sent for. Accordingly, as testified to by L. A. Rice, the section master left one of his men in charge of the body and went at once to Salisbury for the coroner and returned some time before the coroner arrived. The declara*407tions of tbe section master manifesting some impatience at tbe prospect of spending tbe nigbt guarding tbe remains while waiting for tbe coroner were properly excluded. After tbe coroner arrived tbe remains were gathered up, under bis direction, properly cared for and carried to Salisbury on tbe next train.

Tbe details of this dreadful occurrence are well calculated to shock anyone and to disturb that judicial serenity and impartiality with which all cases should be considered. But I am glad to say, for humanity’s sake, that a careful examination and mature consideration of tbe record convince me that, while tbe section master,erred in bis duty through an honest mistake, there is no evidence of willful, wanton, intentional or reckless brutality upon tbe part of anyone. *

I think the judgment of nonsuit should be set aside and a new trial ordered along the lines laid down in this opinion, and it is so ordered.

Walker and OoNNOR, JJ., concur in the opinion of BrowN, J.