Opinion
6 Div. 308.
March 23, 1933. Rehearing Denied April 27, 1933.
Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.
Erle Pettus, of Birmingham, for appellant.
The motion to strike portions of the amended complaint as to claim for damages should have been sustained. W. U. Tel. Co. v. Howle, 156 Ala. 331, 47 So. 341; Lucas v. So. R. Co., 122 Ala. 529, 25 So. 219; Deavors v. So. Exp. Co., 200 Ala. 372, 76 So. 288, 292. The gravamen of the complaint is not for a failure to bury the body but for wrongful detention of same. Jefferson County B. S. v. Scott, 223 Ala. 384, 136 So. 788. No damage to the estate being alleged or proved, mental anguish is not a recoverable element. W. U. Tel. Co. v. Howle, supra; Deavors v. So. Exp. Co., supra; Jefferson County B. S. v. Scott, supra. The preponderance of the evidence shows there was no attempt to hold the body to enforce collection of the charges, nor does the evidence show a wrongful detention. Jefferson County B. S. v. Scott, supra. Only nominal damages should have been assessed, and the jury should have been so charged. Blackburn v. Ala. G. S. R. Co., 143 Ala. 346, 39 So. 345, 5 Ann. Cas. 223. A mistrial should have been entered on account of improper statements of plaintiff's counsel in the presence of the jury. Ala. F. I. Co. v. Andrews, 212 Ala. 336, 102 So. 799; Hartford F. I. Co. v. Armstrong, 219 Ala. 208, 122 So. 23. Membership and burial certificate had no proper bearing on the issue in this case. Rollings v. State, 160 Ala. 82, 49 So. 329; Ala. G. S. R. Co. v. Bell, 200 Ala. 562, 76 So. 920; Jefferson County Burial Soc. v. Scott, 218 Ala. 358, 118 So. 644.
Ewing, Trawick Clark, of Birmingham, for appellee.
It is not error to refuse to give requested instructions substantially covered by given instructions. Catanzana v. Jackson, 198 Ala. 302, 73 So. 510; Birmingham S. R. Co. v. Vanderford, 217 Ala. 342, 116 So. 334; Wood v. Hacker, 23 Ala. App. 12, 121 So. 437. In an action by a proper person based on the wrongful refusal to deliver a dead body after proper demand, damages for mental anguish claimed and proven are recoverable. The recovery in such case is not limited to mere nominal damages. Deavors v. So. Exp. Co., 200 Ala. 372, 76 So. 288, 292; Jefferson County Burial Soc. v. Scott, 218 Ala. 354, 118 So. 644; Id., 223 Ala. 384, 136 So. 788; Birmingham T. T. Co. v. Still, 7 Ala. App. 556, 61 So. 611; Loy v. Reid, 11 Ala. App. 231, 65 So. 855; Larson v. Chase, 47 Minn. 307, 50 N.W. 238, 14 L.R.A. 85, 28 Am. St. Rep. 370; Mensinger v. O'Hara, 189 Ill. App. 48; Lindh v. Gt. N. R. Co., 99 Minn. 408, 109 N.W. 823, 7 L.R.A. (N.S.) 1018; O'Meara v. Russell, 90 Wn. 557, 156 P. 550, L.R.A. 1916E, 743. A remark of counsel indicating that a previous trial had resulted in a verdict for plaintiff is remedied by the action of the court excluding the remark and instructing the jury to disregard the result of the former trial. Tennessee R. N. Co. v. Walls, 209 Ala. 320, 96 So. 266. Statements of counsel addressed to the court relating to the admissibility of testimony cannot be made the basis of a motion for a mistrial or new trial. Jefferson County Burial Soc. v. Cotton, 222 Ala. 578, 133 So. 256. Testimony is not subject to the general objection when its natural tendency is to prove some issue in controversy. Farmers' M. I. Ass'n v. Stewart, 192 Ala. 23, 68 So. 254; Atlanta St. A. B. R. Co. v. Fowler, 192 Ala. 373, 68 So. 283.
Action for damages for tort in wrongfully detaining the dead body of a daughter from the mother, as lawful custodian thereof.
This is the third appeal. For former decisions, see Jefferson County Burial Society v. Scott, 218 Ala. 354, 118 So. 644; Id. (second appeal) 223 Ala. 384, 136 So. 788.
On the trial now under review the complaint was amended so as to recite: "* * * And plaintiff was put to much trouble and inconvenience in her efforts to obtain said dead daughter from the defendant and was caused to spend the sum of to-wit ten dollars to the defendant in order to obtain the remains of said dead daughter from the defendant and she was caused to suffer much mental anguish," etc.
Other elements of special damages were charged out and need not be considered.
So far as appears, the $10 paid at the time defendant agreed to surrender the remains was justly due the defendant for services for embalming, etc.
But if its collection was coerced by unlawfully detaining the body until the money was paid, as plaintiff's evidence tended to show, it was obtained by the tortious act complained of.
We do not mean to hold that pecuniary loss is essential to recovery for mental suffering in cases of this class. The question is not here involved. See, however, Bessemer L. I. Co. v. Jenkins, 111 Ala. 135, 18 So. 565, 56 Am. St. Rep. 26; Deavors v. Southern Express Co., 200 Ala. 372, 76 So. 288; Jefferson County Burial Soc., Inc., v. Scott, 223 Ala. 384, 136 So. 788; F. Becker Asphaltum Roofing Co. v. Murphy, 224 Ala. 655, 141 So. 630; Finley v. Atlantic Transport Co., 220 N.Y. 249, 115 N.E. 715, L.R.A. 1917E, 852, Ann. Cas. 1917D, 726; Larson v. Chase, 47 Minn. 307, 50 N.W. 238, 14 L.R.A. 85, 28 Am. St. Rep. 370; Cooley on Torts, § 240; Sutherland on Damages, § 1029; Vol. 1, Sedgwick on Damages, § 43i; 17 C. J. p. 1144, § 17; Id., page 1147; Id., p. 828, § 151.
The defendant having raised an issue as to whether the detention was by defendant corporation, or another corporation under the same management and ownership, which was under contract to bury policyholders of defendant corporation, there was no error in admitting evidence that the deceased held and had paid for a policy in defendant corporation.
While the suit was for wrongful detention of this body, not for breach of obligation to bury, the evidence went to the question of who took possession of the body and held it for several days pending efforts of plaintiff to raise the money or give the security required to procure a burial, and, on failure to make such arrangements, detained the body, if it was detained, until charges already incurred were paid.
The trial court carefully limited this testimony by proper instructions to the jury.
During the direct examination of defendant's witness, Mr. Bradford, he was asked: "You heard Charlotta (plaintiff) crying and going on on the stand today? Did she ever cry like that before?"
Plaintiff's counsel interposed: "I object, she didn't have to cry to get a verdict before."
The defendant moved for a mistrial because of this improper remark in the presence of the jury.
The question and answer sought imputed to plaintiff a crying demonstration for effect, evidenced by a change in that regard from her manner at former trials.
As addressed to the trial court, the suggestion that the results of the former trial negatived any idea of a change for effect, was not improper. It would seem this could have been presented to the court without the very suggestive terms used in the presence of the jury. But the court took special care to then and there instruct the jury to disregard everything touching the results of a former trial, and try the case solely on the evidence presented to them on this trial. We see no reason to say a jury could not and would not follow these instructions in keeping with their oaths. Nor can it be said the verdict reflects any such disregard of duty. Jefferson County Burial Soc. v. Cotton, 222 Ala. 578, 133 So. 256; Tennessee River Nav. Co. v. Walls, 209 Ala. 320, 96 So. 266.
Since the amended complaint properly presents mental suffering as an element of damages, the recovery was not limited to nominal damages as held on second appeal, supra. See, also, opinion on first appeal, supra.
The evidence does not place blame on any one for possession of the body by defendant, nor the holding of same from Saturday over until Thursday; nor does it disclose the cause of the delay in burial from Friday until Monday by the second undertaker, Pugh.
The court carefully limited the damages for mental suffering proximately resulting from the refusal to turn over the body on Thursday, if the jury found there was such refusal, until the body was released to Pugh on Friday.
In passing on the mental suffering as a proximate result of the unlawful detention of the body during this period, the jury were authorized to look to the circumstances conducive to such suffering. We need not go into further details.
Rulings on pleadings or testimony touching elements of damages charged out at defendant's request, we have no occasion to review.
Refused charges were either covered by given instructions, or were properly refused upon grounds disclosed in opinions on former appeals or in this opinion.
No further treatment is deemed necessary.
Affirmed.
ANDERSON, C. J., and GARDNER and FOSTER, JJ., concur.