physical impact not necessary to recover for injuries produced by emotional distress caused by defendant’s tort
How later courts described this case
- physical impact not necessary to recover for injuries produced by emotional distress caused by defendant’s tort
- “[I]t is clear that defendant ... was immune from suit under the statute because at the time he severed the hands from the plaintiffs’ daughter’s corpse he was acting in his capacity as deputy medical examiner for Menominee County.”
- physical impact not necessary to recover for injuries *645 produced by emotional distress caused by defendant’s tort
Written by the judges who cited it.
The opinion
Mackenzie, P.J.
I concur with Judge Allen in finding that the trial judge did not err in granting summary judgment in favor of defendants under Counts I, II, and IV of the plaintiffs’ complaint. However, I disagree with Judge Allen’s determination that the trial judge erred in granting summary judgment in favor of defendants Lenwood E. Kell and Kell-Tondin Chapel, Inc., with respect to Count III of plaintiffs’ complaint.
*817 Count III of plaintiffs’ complaint alleges the defendants "had a duty by contract with your plaintiffs to provide a proper and decent burial of the body of plaintiffs’ deceased daughter, Laura Lee Allinger Gardner”. There is a further allegation of breach of the duty by failing to give a proper and decent burial "by allowing the corpse delivered to their custody to have its hands and hair severed and removed, and by allowing said corpse to be buried and interred in a grotesque and mutilated condition without the knowledge, approval, permission or consent of your plaintiffs”.
The allegations as to express contractual provisions between plaintiffs and defendants Kell are in vague and general language. No written contract was attached to the complaint nor was any reference to a written contract included in the record. A motion for summary judgment on the basis of GCR 117.2(1) was filed by defendants Kell on December 18, 1978, and a hearing was held pursuant to notice on March 8, 1979. No responsive pleading was filed by plaintiffs to the summary judgment motion; nor was any request made at the hearing to amend the complaint to include a statement of the facts upon which plaintiffs rely for their allegations of contractual duty as required by GCR 111.1(1).
The trial court did not grant the motions for summary judgment to defendants until April 11, 1979, after proposed orders granting motions were served with notice of presentment of same.
Plaintiffs had the chance at the trial court level to amend the complaint to specifically plead the terms of the contract which allegedly created the duty plaintiffs claim was breached. However, even if the complaint had properly pled that the burial agreement specifically contained a promise by the *818 funeral director that it would prevent the medical examiner from removing the hands of the deceased for evidentiary purposes, such a provision would not have been enforceable. Private parties cannot contract to avoid actions by public officials specifically authorized by statute. Therefore, a breach of such a provision would not be actionable. I would affirm the trial court’s holding that plaintiffs stated no cause of action upon which relief could be granted, either in tort or contract.
Judge Bronson’s opinion disregards what I see as legislative intent to give the medical examiner responsibility and wide discretion in investigating the cause and manner of death when death is caused by violence, MCL 52.202; MSA 5.953(2).
The authority of the medical examiner is to conduct autopsies without the consent of the next of kin and to retain such portions of the body as "believed by him necessary for the detection of any crime”. MCL 52.205; MSA 5.953(5). The statute does not require that the medical examiner’s belief that the removal and detention of body parts be reasonable, nor does his belief that such removal and detention was necessary for the detection of crime have to be correct. Clearly, the legislative purpose is to promote the public interest in detecting crime and obtaining evidence to convict criminals. The state’s interest in law enforcement outweighs the rights the next of kin of a murdered person may have in keeping the dead body inviolate. In some cases of death from unnatural causes, the next of kin are the perpetrators of the crime and have the most to gain by curtailing investigation. The medical examiner is charged with a public duty, and, in the absence of specific pleading of facts showing that he was acting contrary to his statutory duties, he should be immune from suit.