The opinion
On Rehearing.
The court notes the cautious imputation of a “lack of judicial pride” in the preparation of the original opinion in this case. It also notes the suggestion of the smallness of the amount involved and the “importance of the principle.” Nor can we be unmindful of the able presentation of appellant’s case through the agency of some of the most eminent attorneys at the bar of this state and the lack of presentation by the appellee, who, in the-language of appellants in brief filed in support of this application, is “poor ignorant negro,” whose lawyer is dead.
The first insistence of error in- the application for rehearing is made upon the contention that—
“When a man dies leaving a wife surviving him, the wife and not the father of the deceased is the person and the only person who can maintain an action against a wrongdoer for wrong done the dead body of deceased.”
In R. C. L. p. 686 (5), it is laid down as a conceded rule that—
“On the death of a husband or wife, the primary and paramount right to possession of the body and to control the burial or other legal disposition thereof is in the surviving spouse and not in the next of ldn.”
And this rule seems to be supported by authority. The announcement of this rule, however, has grown out of cases where the contest was between interests seeking custody of the body or control of burial plans, such as the case of Enos v. Snyder, 131 Cal. 68 , 63 P. 170 , 53 L. R. A. 221, 82 Am. St. Rep. 330 ; O’Donnell v. Slack, 123 Cal. 285 , 55 P. 906 , 43 L. R. A. 388; Anderson v. Acheson, 132 Iowa, 744 , 110 N. W. 335 , 9 L. R. A. (N. S.) 217.
All of these cases, however, recognize as well-settled law that there is no property in the dead body of a human being, in the commercial sense of the term, and that the right to possession and disposition is in a sense a trust to be exercised for all having affection for the deceased and an interest in seeing the body decently interred.
It follows that, while primarily the surviving spouse has the paramount right to the possession of a dead body, that right may. be waived, unless asserted by the spouse, and, in the case of an express or implied waiver, the right to possession is in the next of kin, which in this instance is the father. In the case of a dead body needing burial, the right of the spouse must be promptly asserted, or the right to possession of the body for the purposes of interment will be held to have been waived in favor of the next of kin. We have found no direct authority holding in hsee verba to the rule announced, but in Hackett v. Hackett, 18 R. I. 155, 26 A. 42 , 19 L. R. A. 558, 49 Am. St. Rep. 762 , a case much cited as authority, it was held that the right of the spouse to the possession of the body was dependent upon the peculiar circumstances of the case or the waiver of such right by consent or otherwise, and in the well-considered case of Larson v. Chase, 47 Minn. 307 , 50 N. W. 238 , 14 L. R. A. 85, 28 Am. St. Rep. 370 , the justice writing the opinion, after stating the general rule, says:
“The right of the surviving wife (if living with her husband at the time of his death) is paramount to that of the next of kin. This is in accordance, not only with common custom and general sentiment, but also, as we think, with reason. * * * But this right is in the nature of a sacred trust, in the performance of which all are interested who are allied to the deceased by the ties of family' or friendship, and, if she should neglect or misuse it, of course, the courts would have the power to regulate and control its exercise.”
We think it is equally in keeping with custom and common reason to hold that, where the wife is not living with her husband at the time of his death, or neglects or refuses to assume the trust incident to her right, a waiver of that right is implied and the right and duty immediately descends to the next of kin present and acting. When this is so, such next of kin having legal custody of the body also has legal rights in the body which the law recognizes and protects and any interference in such rights is an actionable wrong. Larson v. Chase, 47 Minn. 307 , 50 N. W. 238 , 14 L. R. A. 85, 28 Am. St. Rep. 370 ; Pierce v. Proprietors, etc., 10 R. I. 227, 14 Am. Rep. 667 .
The English decisions bearing on the foregoing questions are of little value in aiding us to a correct conclusion, as all English cases and opinions are based upon a system of dealing with the dead, entirely at variance with that of the states of the American Union. A full discussion of these, together with a thorough treatise on the subject, may be found in the very able report of Hon. Sam B. Buggies, referee to the Supreme Court of New York, in Re Widening of Beckman St. 4 Bradford’s Rep. Appendix, p. 503. After *11 quoting from many American decisions, he reaches conclusions under five heads, which, so far as applicable to this case are:
(2) That “the right to bury a corpse and to preserve its remains is a legal right, which courts of law will recognize and protect; (3) that such right, in the absence of any testamentary disposition, belongs exclusively to the next of kin.”
This report has been confirmed by the courts of New York, and cited and quoted as an authority by many of the courts of other states.
From a reading of all the decisions from the American courts, it seems to be the law: (1) A dead body is not property in the common commercial sense of that term, and subject strictly to the laws of descent and distribution; (2) that the person having charge of a dead body for burial is in the exercise of a sacred trust for all who may, from family ties or friendship, have an interest in the remains; (3) that the right of possession for burial is a legal right coupled with certain duties which the courts will protect and that an unlawful interference with these rights is a basis for suit for damages; (4) that, in case of husband and wife, the right of possession is in the surviving spouse, provided the husband and wife were living together at the time of the demise; ,(5) that the absence of the spouse, or his or her failure or refusal to act, has the effect of transferring the right of custody and duty of trusteeship to the next of kin in succession.
(1) (2) (3) (4), supra, are, we think, supported by the weight of authority in the adjudicated cases. (5) is based upon the traditions, customs, and the necessities incident to .a proper respect for the dead and the case of Wright v. Hollywood Cem. Corp., 112 Ga. 884 , 38 S. E. 94 , 52 L. R. A. 621. In the instant case the wife was not present, and the only evidence that there was a wife is the testimony of the father :
“My son said he was married. He said he married up here in West Virginia, and was married at the time he died; but I never did see his wife, he just came and said he was married.”
The dead man had been living with his father as a member of the family for some months before his death. Though he was sick and died, his wife never came or eom.municated or showed any interest in him. It therefore seems certain that they were not living together, and, if not legally separated, the facts would disclose a. waiver of any rights as to the custody of the body which she may have had.
There is a duty imposed by universal feelings of mankind to be discharged by some one toward the dead; a duty and a right to protect from violation, which in this ease devolved on the plaintiff, and, as was said in Burney v. Children’s Hospital, 169 Mass, 57, 47 N. E. 401 , 38 L. R. A. 413, 61 Am. St. Rep. 273 :
“It would be discreditable to any system of law not to provide a remedy in such a ease.” Pierce v. Swan Point Cem., 10 R. I. 237, 14 Am. Rep. 667 .
The third and last proposition in appellant’s brief on application for rehearing is that: “On the whole ease, pleadings, and proof the defendants were entitled to a verdict in this case,” or, failing this, that a new trial should have been granted, which we assume is a contention that the trial court erred in refusing the affirmative charge and overruling the motion for new trial. The brief then proceeds With argument interspersed with intentional or -unintentional thrusts at the court, such as:
“We are not willing to accept the unreasonable ipse dixit of the court on such an unreasonable proposition as the final word on the subject. The court cannot sustain such a position on reason, authority, common experience, or common sense. The situation simply does not smell good to us”
—and others of a similar nature. Such expressions may have the effect of relieving the mind of counsel, but they add nothing by way of authority or logic to a consideration of the questions involved; on the contrary, they might create the impression that the absence of authority or logic demanded a substitute. Such expressions have no proper place in a brief.
Let us see as to appellant’s contention. If the plaintiff has a cause of action, has stated it in his complaint and proved it to the reasonable satisfaction of the jury, he would be entitled to a verdict. That the plaintiff had rights in the body of his son which the law will protect, if those rights are unlawfully interfered with, we have herein-above attempted to demonstrate. Was the retention of the death certificate by the defendants a legal wrong, and, if so, did this wrong proximately cause a delay in the burial of plaintiff’s son for such time as to damage the plaintiff as alleged in the complaint? The certificate of death was most certainly the property of the plaintiff at the time he took it to the office of defendants. According to plaintiff’s testimony, the defendant did not accept the certificate as proof of loss under an insurance policy. According to plaintiff’s testimony, plaintiff said to defendant :
“Well, white folks, if you ain’t going to pay off, suppose you let me have my death proof to let (get) my boy buried.”
And:
‘When I handed the paper to him, and he looked at it and read it and shoved it in the drawer, he said, Well, we don’t do nothing like that,’ and he rubbed his hands.”
*12 And:
“White-folks, would you mind giving me my paper to have my boy buried?”
And defendant replied:
“I won’t give you a God damn thing; if you don’t get out of here, I will maul you with my fists.”
The defendant was charged with a knowledge of the law requiring a certificate such as had been presented to him before a burial of the son could take place. Code 1923, § 3870. He was also charged with a knowledge of the health laws of the state embraced in chapter 31, article 1, of the Code of 1923, §| 1071 and 1073, together with the rules and regulations promulgated by the state and county boards in conformity with those statutes, embracing as they do the form of death certificate for obtaining a burial permit for the dead.
The custom of defendants to receive these certificates as proofs of death from their policy holders could not be binding on plaintiff, unless be'knew of the custom. Where custom is not general in character, it is binding only upon persons who have knowledge of its existence. 8 R. C. L. 163; 4 Mich. p. 608, par. 12; U. S. Ins. Co. v. Hill, 9 Ala. App. 222 , 62 So. 954 ; Cooley’s Brief, 3448 (f). Besides,, according to plaintiff’s testimony, defendant was informed for what purpose plaintiff desired a return of the certificate. It is undeniably a fact that the refusal of defendant to return the certificate made it necessary for plaintiff to obtain another, and, according to plaintiff, this could not be done until Sunday morning, thereby causing such delay as'that—
“When I got to the undertaker’s shop, I couldn’t hardly get to the door. The flies were around the door just like bees. I walked in to look at the boy and it looked like to me that he had busted, or something, it was a whole lot of water or something had run out of the coffin and down on the floor, and the flies were simply just like bees, there couldn’t hardly nobody get in there.”
If, as had been said, there had been no tender and acceptance of the certificate as claimed by plaintiff, the plaintiff had a right to the certificate. He could not bury his dead without one. He had procured one for that purpose. The defendant unlawfully and intentionally withheld it, and, as a proximate result of defendants’ wrong, the funeral rites were interfered with, and, according to plaintiff.’s evidence, to his serious damage.
It is the proud boast of our system of jurisprudence that’ the law gives a remedy for every wrong equally to the poor and friendless as to the rich and powerful, and, if the plaintiff’s evidence is to be believed, which evidently the jury did, and which we are not authorized to go behind, there was a wrong and a resultant damage. That" being true, the law will not fail him in the remedy.
The application is overruled.