Keyes v. Konkel

This is an action of replevin to recover the dead body of plaintiff’s brother. The deceased died at a hospital, and defendants, who are undertakers, took charge of the corpse by request of the hospital authorities. The plaintiff, after the defendants had performed some services in fitting the body for burial, demanded possession of the body, and defendants refused to deliver the body up unless paid for their services. Thereupon plaintiff instituted this suit.

The question presented is whether replevin will lie in this State for a human corpse. The question is happily more novel than difficult. The statute (section 6856, 2 How. Stat.) provides for the proceeding of replevin in justice’s court, and requires an affidavit by the plaintiff setting forth that his “personal goods and chattels” have been unlawfully taken or are unlawfully detained. The *551replevin statutes (2 How. Stat. §§ 8346, 8347) provide for a judgment for defendant, when the plaintiff fails in his case, for a return of the property or for its value. It is apparent that no return of the property can be ordered in case of the replevin of a dead body, and it is equally true that its value in money can neither be appraised nor ascertained by a jury. It was formerly held in England that there could be no property in a human body. Williams v. Williams, 20 Ch. Div. 659, also reported in 21 Am. Law Reg. 508; Guthrie v. Weaver, 1 Mo. App. 141; Meagher v. Driscoll, 99 Mass. 284 (96 Am. Dec. 759); Pierce v. Proprietors of Cemetery, 10 R. I. 227 (14 Am. Rep. 667); Weld v. Walker, 130 Mass. 422 (39 Am. Rep. 465). In certain modern American cases, a dead body has been said to be a quasi property, and the right to control and bury it, and to recover against one who mutilates the corpse, has been maintained. Pierce v. Proprietors of Cemetery, supra; Weld v. Walker, supra; Burney v. Children’s Hospital, 169 Mass. 57 (38 L. R. A. 413, 61 Am. St. Rep. 273); Larson v. Chase, 47 Minn. 307 (14 L. R. A. 85, 28 Am. St. Rep. 370); Foley v. Phelps, (Sup.) 37 N. Y. Supp. 471. Recovery for the refusal of the right to bury or for mutilation of the body is rather based upon an infringement of a right than upon the notion that the property of plaintiff has been interfered with. The recovery in such cases is not for the damage to the corpse as property, but damage to the next of kin by infringement of his right to have the body delivered to him for burial without mutilation. In numerous cases equity has taken jurisdiction to prevent interference with the control of a dead body by persons entitled to control it. See Weld v. Walker, supra; Pierce v. Proprietors of Cemetery, supra. And in Peg. v. Fox, 2 Q. B. 24&, the remedy by mandamus to a jailer was granted. But on every consideration we are of the opinion that replevin cannot be maintained.

It is not contended that the defendants are entitled to maintain a lien. It is obvious that return cannot be ad*552judged. The only proper judgment is one dismissing the -proceeding, with costs of all the courts to the defendants. It is so ordered.