'" As was well said in Kyles v. Southern Ry. Co., 147 N.C. 394 ( 61 S.E. 278, 281): "Respect for the dead is an instinct that none may violate. The democracy of death is superior to the edicts of kings.
American Paint Works v. Lawrence, 3 Zabriskie, 590, 57 Am. Dec. 420; Hale v. Lawrence, 1 Zab. 714, 47 Am. Dec. 190. (b) Defendant had no right to throw the wall upon the dead bodies, caught in the ruins, and would have been liable for so doing, to the relatives of the dead, unless exercised upon the doctrine of necessity above stated. Larsen v. Chase, 47 Minn. 307, 28 Am. St. Rep. 370; Foley v. Phelps, 1 N.Y. App. Div. 551; Kyles v. Southern Railroad, 147 N.C. 394; Pierce v. Proprietors of Swan Cemetery, 10 R.I. 227, 14 Am. Rep. 667; Floyd v. Atl. Coast Line Ry. Co., L.R.A. 1915B, p. 519. (c) It was defendant's duty to rescue the dead bodies as quickly and with as little mutilation as possible.
But being trapped in an elevator for 30 minutes on the first floor, see id. at 175, is significantly different from a forced sexual encounter involving oral sex and actual or attempted anal sex. That mental suffering would be the ordinary and proximate result of a sexual assault, even without evidence of physical trauma, “is too plain to admit of argument.” Kyles v. S. Ry. Co., 147 N.C. 394, 61 S.E. 278, 280 (1908) (holding the same about mutilation of remains of a deceased husband). And it has long been the rule that mental injury is simply another type of injury, like physical and pecuniary injuries, for which a plaintiff can recover in a negligence case.
A number of our early cases dealt with emotional distress caused by negligent acts relating to corpses. E.g., Morrow v. R.R., 213 N.C. 127, 195 S.E. 383 (1938) (mutilation of corpse); Bonaparte v. Funeral Home, 206 N.C. 652, 175 S.E. 137 (1934) (husband's body withheld from widow to induce payment for embalming services); Kyles v. R.R., 147 N.C. 394, 61 S.E. 278 (1908) (mutilation of corpse). In Byers v. Express Co., 165 N.C. 542, 81 S.E. 741 (1914) (Clark, C.J.), rev'd on other grounds, 240 U.S. 612, 60 L.Ed. 825 (1916), the plaintiff widower sued the defendant railway for mental anguish caused by the defendant's negligent misrouting of the casket and burial clothes to be used for his wife's funeral in South Carolina. As a result of the delay, the body was buried in a "cheap casket" and "without proper burial clothing."
An examination of the cases referred to upon the premise of those facts will reveal that where an action based on negligence is recognized, there is something involved which could be considered a violation of the respect due to the dead and thus as "offending against the generally accepted standards of decency" in that regard. Examples of cases recognizing an action for mental distress resulting from the mistreatment of bodies: see Brown Funeral Homes Ins. Co. v. Baughn, 226 Ala. 661, 148 So. 154 (1933); and Carey v. Lima, Salmon and Tully Mortuary, 168 Cal.App.2d 42, 335 P.2d 181 (1959) (recovery allowed for emotional distress suffered by bereaved family members because of negligent embalming); and see St. Louis Southwestern Ry. Co. v. White, 192 Ark. 350, 91 S.W.2d 277 (1936); Kyles v. Southern Ry. Co. (1908), 147 N.C. 394, 61 S.E. 278, 16 L.R.A., N.S., 405, and Morrow v. Southern Ry. Co., 213 N.C. 127, 195 S.E. 383 (1938). (These cases involve negligence in failing to look out for dead persons lying on railroad tracks).
Upon the death of a husband or a wife, the surviving spouse has the primary right to the custody of the body for burial as well as the preparation therefor. Lamm v. Shingleton, 231 N.C. 10, 55 S.E.2d 810; Kyles v. R. R., 147 N.C. 394, 61 S.E. 278; 15 AM. JUR., Dead Bodies 9 (1938). Our law recognizes that the next of kin has a quasi-property right in the body — not property in the commercial sense but a right of possession for the purpose of burial — and that there arises out of this relationship to the body an emotional interest which should be protected and which others have a duty not to injure intentionally or negligently. The rights of one legally entitled to its custody are violated if another unlawfully withholds the dead body from him, Bonaparte v. Funeral Home, 206 N.C. 652, 175 S.E. 137. Furthermore, the survivor has the legal right to bury the body as it was when life became extinct.
The first question is easily answered in the affirmative. The right of the surviving spouse to have, protect and dispose of the remains of the other is a right recognized by law. Foley v. Phelps, 37 N.Y. S. 471; Larson v. Chase, 50 N.W. 238, 14 L.R.A. 85 (Minn.), 15 Am. Juris., Sec. 9, Dead Bodies; 82 Fed. 2d 799; 97 Ill. App. 24; 76 So. 288 (Ala.); 17 C. J. 1139; 8 R. C. L. 684; So. Life Health Ins. Co. v. Morgan, 105 So. 161 (Ala.); England v. Central Pocahontas Coal Co., 104 S.E. 46, 17 C. J. 1139, 8 R. C. L. 684 (W.Va.); Patrick v. Employers Mutual Liability Ins. Co., 118 S.W.2d 116 (Mo.); Morrow v. Cline, 190 S.E. 207 (N. Car.); Spiegel v. Evergreen Cemetery Co., 186 A. 585; Ekles v. So. R. R. Co., 61 S.E. 278, 16 L.R.A. (N.S.) 405 (N. Car.). The second question is whether the law of Florida will sustain an action for mental anguish unconnected with physical injury under the stated facts.
DEVIN, J. The right of a father to prosecute an action for damages for the wrongful mutilation of the dead body of his son has been established by the decisions of this Court ( Kyles v. R. R., 147 N.C. 394, 61 S.E. 278; Floyd v. R. R., 167 N.C. 55, 83 S.E. 12; Morrow v. R. R., ante, 127), and this principle has been extended to include an action based upon an unauthorized autopsy. Stephenson v. Duke University, 202 N.C. 624, 163 S.E. 698. The right to bury the dead is generally treated as a quasi right of property, and the mutilation of the body held actionable.
This leaves for determination the one question as to whether there is sufficient evidence in the record to show the tortious mutilation of the body of the deceased by the defendant to be submitted to the jury. The first case in our courts dealing with the right to recover for wrongful mutilation is Kyles v. R. R., 147 N.C. 394, in which it is said: "This is not an action for the negligent killing of the deceased, but an action by the widow (here the next of kin) for the willful, unlawful, wanton and negligent mutilation of his dead body. She was entitled to his remains in the conditions found when life became extinct; and for any mutilation incident to the killing the defendant would not be liable, but it is liable in law for any further mutilation thereof after death, if done either willfully, recklessly, wantonly, unlawfully or negligently.
In this State the right to maintain an action for such mutilation has been recognized for almost a third of a century. Kyles v. R. R., 147 N.C. 394. The single question with which we are now concerned is whether upon the allegations in the complaint the feme plaintiff, the mother of the deceased child, has a cause of action.