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Kirksey v. Jernigan

Supreme Court of Florida, en Banc
Mar 24, 1950
45 So. 2d 188 (Fla. 1950)

Summary

In Kirksey v. Jernigan, 45 So.2d 188 (Fla. 1950), an undertaker took a five-year-old child's body and embalmed it without parental consent.

Summary of this case from Hart v. U.S.

Opinion

March 24, 1950.

Appeal from the Circuit Court for Duval County, Miles W. Lewis, J.

Dean Boggs, Jacksonville, for appellant.

Katz Katz and Bedell Bedell, Jacksonville for appellee.


This is an appeal from a final judgment on demurrer entered in the court below in favor of defendant-appellee in a tort action for damages. The lower court sustained defendant's demurrer to plaintiff's Second Amended Declaration on the ground that neither compensatory damages for mental pain and anguish nor punitive damages were recoverable, and that therefore plaintiff's claim was below the amount required to give the court jurisdiction of the cause. The plaintiff declining to amend further, final judgment on demurrer was entered in favor of defendant-appellee.

The facts upon which plaintiff based her cause of action are set forth in her declaration essentially as follows:

On October 20, 1948, the plaintiff's five-year-old child was accidentally shot and killed at her home while she was temporarily absent. She was immediately notified and arrived at the scene soon after the accident occurred. Prior to her arrival, the defendant, an undertaker, had taken the body of the child to his undertaking establishment "without the authority of plaintiff, or of anyone authorized to act in her behalf", it is alleged. Upon learning this, the plaintiff went to the establishment of defendant, advised him that she was the mother of the child, and made demand for the body, directing that it be turned over immediately to the undertaker of her choice. It is alleged that she made this demand within two hours after the accident. Defendant refused to surrender the body at that time, or upon repeated requests for the body made thereafter by plaintiff, or others acting on her behalf, and held the body for two or three days. The defendant also embalmed the body, it is alleged, "wrongfully and without authority from plaintiff, or anyone authorized to act in her behalf, and thereby mutilated said body in deliberate and wanton disregard of the known rights of plaintiff and arbitrarily set his charge or fee in the sum of $50.00." It was also alleged that he refused to deliver the body to plaintiff or anyone else until plaintiff had paid the $50.00 fee, and "wrongfully held said body as security for said charge or fee of $50.00."

The declaration was in three counts, the first of which was based on the wrongful withholding of the body, and the second on this same ground and, in addition, the unauthorized embalming and the holding of the body as security for the payment of the $50.00 fee. The third count contained the allegations of the first two counts and alleged further that the charge of $50.00 for embalming was excessive, the usual fee being $25.00; that the defendant, knowing the plaintiff to be a poor and impecunious colored woman, refused to accept the usual charge of $25.00 or $30.00 to release the body, held the body as security for the fee, and forced her to borrow money to pay the excessive amount demanded.

Plaintiff sought compensatory damages and punitive damages, and the recovery of the $50.00 fee paid plaintiff, in the total amount of $25,000.00

This court is committed to the rule, and we re-affirm it herein, that there can be no recovery for mental pain and anguish unconnected with physical injury in an action arising out of the negligent breach of a contract whereby simple negligence is involved. Dunahoo v. Bess, 146 Fla. 182, 200 So. 541, following International Ocean Telegraph Company v. Saunders, 32 Fla. 434, 14 So. 148, 21 L.R.A. 810.

But we do not feel constrained to extend this rule to cases founded purely in tort, where the wrongful act is such as to reasonably imply malice, or where, from the entire want of care of attention to duty, or great indifference to the persons, property, or rights of others, such malice will be imputed as would justify the assessment of exemplary or punitive damages. See 15 Am.Jur., Damages, Sec. 179, page 596; Restatement of Torts, Section 47(b). The right to recover, in such cases, is especially appropriate to tortious interference with rights involving dead human bodies, where mental anguish to the surviving relatives is not only the natural and probable consequence of the character of wrong committed, but indeed is frequently the only injurious consequence to follow from it.

It is well settled that, in the absence of testamentary disposition to the contrary, a surviving spouse or next of kin has the right to the possession of the body of a deceased person for the purpose of burial, sepulture or other lawful disposition which they may see fit. Dunahoo v. Bess, supra, and cases therein cited; 15 Am.Jur., Dead Bodies, Section 17, page 839; 25 C.J.S., Dead Bodies, § 8, page 1025. And the invasion of such right by unlawfully withholding the body from the relative entitled thereto is an actionable wrong, for which substantial damages may be recovered. Sworski et al. v. Simons et al., 208 Minn. 201, 293 N.W. 309; Teasley v. Thompson, 204 Ark. 959, 165 S.W.2d 940; Lubin v. Sydenham Hospital, Inc., 181 Misc. 870, 42 N.Y.S.2d 654; Gadbury v. Bleitz, 133 Wn. 134, 233 P. 299, 44 A.L.R. 425; and Bonaparte v. Fraternal Funeral Home, 206 N.C. 652, 175 S.E. 137.

We hold that the declaration in the instant case stated a cause of action against the defendant and alleged facts which, if established upon the trial, could justify a recovery of punitive damages as well as damages for mental suffering and anguish to the plaintiff. See 15 Am.Jur., Dead Bodies, Section 34, page 852; Bonaparte v. Fraternal Funeral Home, supra; Lubin v. Sydenham Hospital, Inc., supra.

The judgment is, accordingly, reversed and the cause remanded for trial.

TERRELL, CHAPMAN, SEBRING and HOBSON, JJ., concur.

ADAMS, C.J., and THOMAS, J., dissent.


Summaries of

Kirksey v. Jernigan

Supreme Court of Florida, en Banc
Mar 24, 1950
45 So. 2d 188 (Fla. 1950)

In Kirksey v. Jernigan, 45 So.2d 188 (Fla. 1950), an undertaker took a five-year-old child's body and embalmed it without parental consent.

Summary of this case from Hart v. U.S.

In Kirksey v. Jernigan, Fla. 1950, 45 So.2d 188, 17 A.L.R.2d 766 this Court held that punitive damages were allowable for and that malice could be imputed from the entire want of care or attention to duty, or great indifference to the persons, property or rights of others.

Summary of this case from Splitt v. Deltona Corp.

In Kirksey, however, the Florida Supreme Court recognized for the first time, not a new tort, but, that damages for emotional distress alone could be recovered if the defendant was guilty of another recognized intentional tort.

Summary of this case from In re E. Airlines, Inc., Engine Failure

In Kirksey, the Florida Supreme Court reaffirmed the long-standing Florida rule that "there can be no recovery for mental pain and anguish unconnected with physical injury in an action arising out of the negligent breach of a contract whereby simple negligence is involved."

Summary of this case from In re E. Airlines, Inc., Engine Failure

In Kirksey, the court permitted damages for mental pain and anguish, finding that the defendant was guilty of the separate tortious act of "tortious interference with rights involving dead human bodies.

Summary of this case from In re E. Airlines, Inc., Engine Failure

In Kirksey v. Jernigan, 45 So.2d 188 (S.Ct.Fla. 1950), defendant funeral home took the dead body of plaintiff's child without authorization.

Summary of this case from Gibson v. Greyhound Bus Lines, Incorporated

In Kirksey, the plaintiff sought compensatory and punitive damages for mental pain and anguish for the wrongful withholding and handling of her child's dead body under a scenario in which there was, again, no physical impact to the claimant.

Summary of this case from Willis v. Gami Golden Glades, LLC

In Kirksey v. Jernigan, 45 So.2d 188 (Fla. 1950), which involved the unauthorized actions of an undertaker who allegedly removed the corpse of a five-year-old child without permission, refused to surrender the body, negligently embalmed the body and ultimately held the body as security for the payment of an excessive fee, this Court reaffirmed the Dunahoo rule that damages are not recoverable for mental pain and anguish unconnected with physical injury in an action for simple negligence.

Summary of this case from Gonzalez v. Metro. Dade Cty. Health Trust

In Kirksey v. Jernigan, Fla. 1950, 45 So.2d 188, 17 A.L.R.2d 766 this Court held that punitive damages were allowable for and that malice could be imputed from the entire want of care or attention to duty, or great indifference to the persons, property or rights of others.

Summary of this case from Griffith v. Shamrock Village

In Kirksey, however, the Florida Supreme Court recognized for the first time, not a new tort, but, that damages for emotional distress alone could be recovered if the defendant was guilty of another recognized intentional tort.[3] Later Florida Supreme Court opinions support this interpretation of Kirksey.

Summary of this case from King v. Eastern Airlines, Inc.

In Kirksey, the Florida supreme court held that liability would attach for a plaintiff's psychic injury engendered by a defendant's intentionally tortious conduct.

Summary of this case from Sguros v. Biscayne Recreation Development Co.

In Kirksey v. Jernigan, Fla. 1950, 45 So.2d 188, 17 A.L.R.2d 766, this court held that punitive damages were allowable for and that malice could be imputed from the entire want of care or attention to duty, or great indifference to the persons, property, or rights of others.

Summary of this case from Paterson v. Deeb

In Kirksey, an undertaker took the body of a five year old child, killed by accident, from her home in her mother's absence.

Summary of this case from Sherer v. Rubin Memorial Chapel

In Kirksey, the Supreme Court dealt with the sufficiency of the initial pleading and pointed out that the general rule that there can be no recovery for mental pain and anguish unconnected with physical injury arising out of the negligent breach of contract would not apply when the case was fully in tort and the wrongful act is such as reasonably to imply malice.

Summary of this case from Przybyszewski v. Metropolitan Dade
Case details for

Kirksey v. Jernigan

Case Details

Full title:KIRKSEY v. JERNIGAN

Court:Supreme Court of Florida, en Banc

Date published: Mar 24, 1950

Citations

45 So. 2d 188 (Fla. 1950)

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