Summary
deciding the issue of who the proper party to bring an action for the mutilation of a corpse where the relatives sought damages for injuries to his feelings, the court stated: "Suffice it to say that in our opinion the weight of authority throughout the country holds that the surviving spouse is the proper party to maintain an action for the willful and negligent mutilation of the corpse, and if none such there be, then the next of kin would be the proper one."
Summary of this case from District of Columbia v. SmithOpinion
15420
June 2, 1942.
Before BELLINGER, J., Richland County, January, 1942. Affirmed.
Action by Cassie Simpkins against the Lumbermens Mutual Casualty Company for a wrongful autopsy on the body of plaintiff's husband. From an order sustaining defendant's demurrer to the complaint, the plaintiff appeals.
The order of Circuit Judge Bellinger, directed to be reported, follows:
This cause came on before me upon the demurrer interposed by the defendant to the complaint of the plaintiff. The demurrer was based on two grounds, which may be generally stated: (1) That the complaint does not state a cause of action, and that there are no legally recoverable damages alleged in favor of the plaintiff; (2) that the complaint does not state a cause of action in that all of the acts complained of were done in accordance with the Workmen's Compensation Act, 39 St. at Large, p. 1231 et seq.
After argument by counsel for the parties involved, and due consideration, the Court undertakes to dispose of the issues raised.
The first ground raises the question as to the capacity of the plaintiff alone to maintain the action. Counsel, in argument, and in their written briefs which were filed with the Court, narrowed and confined the issues to the legal capacity of the plaintiff to sue; defect in parties plaintiff, and with reference to the alleged mutilation of a dead body being the basis of any cause of action. They are accordingly so treated.
The complaint alleges that the "deceased was the plaintiff's husband," and that she was "the wife and spouse of the said Connie Simpkins." There are no allegations as to any other relatives or next of kin. The action is solely for the benefit of the plaintiff. The counsel for plaintiff conceded in argument that there are surviving brothers and sisters of the deceased, and perhaps there may be other next of kin of greater or lesser degree.
The exact point involved in this controversy has never been directly passed upon by our Courts. There have been cases where actions were brought by the administrator for the mutilation of a corpse, and at least one case in which a relative sought damages for injuries to his feelings and rights as a passenger while escorting a corpse. But the question as to who is the proper party to bring an action of the kind now before the Court has never been definitely passed upon.
In the case of Griffith v. Charlotte, Columbia Augusta R.R. Co., 23 S.C. 25, 55 Am. Rep., 1, the plaintiff was the administrator of an estate and brought his action against the railroad company for willful and negligent mutilation of the body of his intestate. The Court held that the administrator had no property right in the cadaver of his intestate, and therefore could not maintain that action, but in its decision the Court did not decide who would be the proper one to institute such an action. In its decision the Court said:
"We have looked diligently through the common-law reports of England, and have found no case in which the civil courts have been appealed to in matter connected with the bodies of the dead. On the contrary, their burial, the graveyards and cemeteries in which they are interred, and the religious ceremonies observed, have been left exclusively to ecclesiastical cognizance, the civil courts universally holding in the language of Lord Coke, that the burial of the cadaver is nullius in bonis. In some of the States upon this continent, especially in Rhode Island, Indiana, Pennsylvania, and New York, the courts, endeavoring to escape from this reproach, have held in general terms that the corpse belongs, not to the administrator, but to the next of kin, and that is as far as the cases referred to by appellant's counsel seem to go.
"In the case of Pierce v. Proprietors of Swan Point Cemetery, 10 R.I. 227, 14 Am. Rep., 667, it was held that while a dead body is not property in the strict sense of the common law, it is quasi-property, over which the relatives of the deceased have rights which the courts will protect. In the case of In re. Widening Beekman Street, 4 Bradf. Sur., N Y, 503, it was held that the right to bury the corpse and to preserve its remains is a legal right which the courts will protect; that such right, in the absence of any testamentary disposition belongs exclusively to the next of kin. In Bogert v. City of Indianapolis, 13 Ind. [134], 135, it was held that the bodies of the dead belong to the surviving relatives in the order of inheritance, as property. In Wynkoop v. Wynkoop, 42 Pa., 293, 82 Am. Dec., 506, it held: `That a wife has no right or control over the body of her husband deceased, after burial. The disposition of the remains of the deceased belongs thereafter exclusively to his next of kin; that though it was her duty to bury the body, that as widow after interment her right ended.'"
The Court, in discussing the right to the disposition of a corpse, holding that the administrator had no rights therein, did say that as far as the case referred to by the appellant went, those cases in general terms held that the disposition of a corpse belonged "to the next of kin." While the discussion of the Court is most interesting, and shows that no one has a property right in a corpse, it is quasi-property over which the relatives of the deceased have some right.
The Griffith case was followed by that of Pinson v. Southern Railway Co., 85 S.C. 355, 67 S.E., 464. In this case the administrator sought to maintain his action for the willful and negligent mutilation of the body of his intestate, and the Court reaffirmed its holding in the Griffith case to the effect that the administrator could not maintain the action. The Court in this case, however did not point out in whom the right of action would lie.
In Osteen v. Southern Railway Co., 101 S.C. 532, 86 S.E., 30, 31 L.R.A., 1916-A, 565, Ann. Cas., 1917-C, 505, the plaintiff was a brother-in-law of the deceased and was escorting the corpse and the members of the deceased's family. He had secured tickets for the family and had paid the required fare for the transportation of the corpse. The conductor had demanded an additional fare for the corpse. That action involved the question of whether or not the plaintiff could maintain an action for injury to his rights and feelings as a passenger brought about by a threat to breach the contract in making an unlawful and unjust demand for fare that had already been paid. This did not involve the question as to who is a proper party to bring an action for mutilation to a corpse. In this case, as in those above cited, there was no occasion for the Court to decide this question. In its discussion the Court said:
"While it has been decided in Griffith v. [Charlotte, C. A.] Ry. Co., 23 S.C. 25, 55 Am. Rep., 1, that under that common law there can be no property in a corpse, and that decision was correct in the facts presented in that case, it is to be remembered that the common law of England had nothing to do with burial of deceased persons, etc., but that the ecclesiastic court had jurisdiction over such matters, and not the courts of common law. This court will not commit itself to such a barbarous and savage doctrine as to hold that, when a person dies, no one has such a property interest in the body as to see the body [is] decently interred, and resting place uninterfered with; and a relative or friend has a right to see that the body is protected, and these feelings in relation thereto protected. * * *
"It is the right and duty of the living to bury their dead, and they have such interest in the remains as to enable them to carry the remains to the graveyard and give the remains Christian and decent interment without interference from any one. This can be done either by the relatives or friends of the deceased. It is their moral and legal duty, and to hold otherwise would be to relapse in the ignorant and savage custom of the Dark Ages, and be repugnant to every Christian and civilized promoting of one's heart and instincts, and it might as well be understood that no argument or sophistry can convince that in a Christian country the dead body of a person is entitled to no more consideration and protection than any article of merchandise. It shocks and outrages all of our finer instincts and sensibilities, conscience, and common sense."
It is generally conceded by text writers on the subject that the surviving spouse has a primary right to the possession of the body and to control the burial thereof, unless the decedent has by will or otherwise, made a different disposition. 8 R.C.L., 694 et seq., 15 Am. Jur., 850. The right to maintain an action for the negligent and willful mutilation of a corpse has to be determined by who has the right of the custody of the body for burial and its proper disposition. 8 R.C.L., 695 et seq., 15 Am. Jur., 850.
The Courts are not in harmony, and there is much confusion and conflict in the decisions upon this question. In the absence of any decision of our appellate Court holding the opposite view, we are constrained to follow the reasoning of those Courts that have held the right to maintain such an action to be in the surviving spouse. These decisions which we prefer as our guide are more in accord, we think, with the feelings of our people on subjects of this nature. It would be impossible to review all of the cases on this subject from other jurisdictions, and it would perhaps serve no useful purpose. Suffice it to say that in our opinion the weight of authority throughout the country holds that the surviving spouse is the proper party to maintain an action for the willful and negligent mutilation of the corpse, and if none such there be, then the next of kin would be the proper one.
Our decision of this question is controlled greatly by the reasoning of the Courts in Larson v. Chase, 47 Minn., 307, 50 N.W., 238, 14 L.R.A., 85, 28 Am. St. Rep., 370; Nichols v. Central Vermont Railway Co., 94 Vt., 14, 109 A., 905, 12 A.L.R., 333; Hill v. Travelers' Insurance Co. et al., 154 Tenn., 295, 294 S.W. 1097, 52 A.L.R., 1442; Bonaparte v. Fraternal Funeral Home, 206 N.C. 652, 175 S.E., 137; Morrow et al. v. Cline et al., 211 N.C. 254, 190 S.E., 207; Louisville N. Ry. v. Wilson, 123 Ga. 62, 51 S.E., 24, 3 Ann. Cas., 128; Pollard v. Phelps. 56 Ga. App., 408, 193 S.E., 102.
The case of Larson v. Chase, supra [ 47 Minn., 307, 50 N.W., 239, 14 L.R.A., 85, 28 Am. St. Rep., 370], considered to be the leading case on the subject of who had the right to maintain an action of this nature, said: "The general, if not universal, doctrine is that this right [the possession of a dead body for burial purposes] belongs to the surviving husband or wife or to the next of kin; and, while there are few direct authorities upon the subject, yet we think the general tendency of the courts is to hold that, in the absence of any testamentary disposition, 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. The wife is certainly nearer in point of relationship and affection than any other person. She is the constant companion of her husband during life, bound to him by the closest ties of love, and should have the paramount right to render the last sacred services to his remains after death. But this right is in the nature of a sacred trust, in the performance of which all are interested who were 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 have no doubt, therefore, that the plaintiff had the legal right to the custody of the body of her husband for the purposes of preservation, preparation, and burial, and can maintain this action if maintainable at all."
In Nichols v. Central Vermont Railway Co., supra [ 94 Vt., 14, 109 A, 906, 12 A.L.R., 333], that Court like our Court, in the dictum found in the Griffith case, decided by our Court, said: "It is undoubtedly the law that, while a dead body is not considered as property in the technical sense of the word, yet the law recognizes a right somewhat akin to property, arising out of the duty of the nearest relatives to bury their dead, which authorizes and requires them to take possession of the dead body for the purpose of burial. The right is a personal and exclusive right to the custody and possession of the remains, and, in the absence of testamentary disposition, belongs to the surviving husband or wife, if any, or, if there be none, then to the next of kin."
In the case just quoted from that Court recognized a paramount right of a mother to bring an action for the negligent handling of the corpse of her child by a former husband, notwithstanding the fact that plaintiff's present husband had paid for the transportation of the corpse and was named in the ticket as the one acting as an escort. The Court pointed out that an action of this kind is not founded on contract but is one founded on personal damages which the plaintiff had sustained by reason of the negligent handling of the corpse by the common carrier. While it is recognized that a body is not property in the usual recognized sense of the word, it is considered as quasi-property in the one who has the right to dispose of the corpse by decent burial and thereby the right to possession of the body, and is the one to maintain an action for its mutilation. This is not a right that was vested in the administrator, as was held by our Courts, for it is not a property right, in the strict legal meaning of that word, vested in one's legal representative. The one who is entitled to possession of the body for burial purposes is entitled to have that body in the same condition in which death left it.
From what has been said we have reached the conclusion that the right to maintain an action for the negligent and willful mutilation of a corpse would lie in the wife or husband, as the case might be, and in default of such, then to the next of kin. The next of kin, as held in Equitable Trust of Columbia v. Epling, 168 S.C. 494, 167 S.E., 820, would be the next of kin according to the statute of distribution, Code 1932, § 8905 et seq.
Our concern in the question here raised is not as to quasi-property right in the dead body. This is not an action for the willful and negligent mutilation of a corpse. The gravamen of the complaint is the alleged lack of regard for the plaintiff's feelings, her humiliation, and embarrassment, and the alleged trespass on and against her rights in having an autopsy made upon the body of her dead husband over her objection.
It follows that the plaintiff in this action is the proper person to maintain the action if she has a cause of action. Therefore, for the reasons stated, the first ground of the demurrer interposed by the defendant should be, and the same is, overruled.
As to the second ground. The complaint alleges in substance, which was conceded in argument by plaintiff's counsel before me, that the J.A. Jones Construction Company was operating under the Workmen's Compensation Act: that the defendant was its insurance carrier; that the plaintiff's husband had been employed by the Construction Company, and that he died of a heart attack without an intervening accident before he actually commenced working. The allegations as to the heart attack and the lack of an intervening accident are later disposed of. It was suggested in argument that the alleged fact, which for present purposes must be assumed to be true, that there was no actual commencement of work, was a criterion which determined the applicability of the Compensation Act. The approach to the determination of this must be in the light of the general rules of construction which prevail as to the Act. The rule is well established that the Act should be given a liberal construction in furtherance of the purposes for which it was designed. No citation of authority is necessary. The following except establishes another rule: "It was also said in the last mentioned decision of this Court, the Ham case, that the basic purpose of the Compensation Act is the inclusion of employers and employees, and not their exclusion; and we add that doubts of jurisdiction must be resolved in favor of inclusion rather than exclusion." Yeomans v. Anheuser-Busch, Inc., 198 S.C. 65, 72, 15 S.E.2d 833, 835, 136 A.L.R., 894. See, also, Ham v. Mullins Lumber Co., 193 S.C. 66, 7 S.E.2d 712.
With this approach the inquiry is, whether the hiring or contract for employment on the one hand, or the actual commencement of work thereunder on the other, is the jurisdictional criterion necessary to bring the Act into operation.
"The existence of the employer-employee relationship is the jurisdictional foundation without which an award of compensation is generally considered as wholly unauthorized under the Compensation Acts. This general statement should be considered in the light of the fact that a number of the Acts make workers, under the specified circumstances, the statutory employers who would not be considered employees under the Common Law rules of master and servant." Workman's Compensation Law (Schneider), Vol. 1, page 570 (citing cases from Alabama, California, Georgia, Indiana, Louisiana, Michigan, Minnesota, New York, North Carolina, Ohio, Wisconsin).
"It is not necessary, however, that the hour for work should have arrived and that the work shall have been actually begun." L.R.A., 1916-A, 235.
"An injury to a city employee who, after reporting according to custom for instructions as to where he is to work during the day, falls on the sidewalk while on his way toward such place, grows out of and is incidental to his employment within the meaning of the Workmen's Compensation Act, although it occurs before the hours when his regular duties for the day begins." City of Milwaukee v. Althoff, 156 Wis. 68, 145 N.W., 238, L.R.A., 1916-A, 327.
"The contract * * * establishes the relationship between the parties, and not the fact whether work has actually been commenced and the employee's name placed on the payroll and he has already become entitled to wages." Wabnec v. Clemons Logging Co., 146 Wn., 469, 263 P., 592, 593.
"It is true that Costley had not commenced the work he was employed to perform when he was injured, but the beginning of a man's work is not necessarily the beginning of his employment. The moment of beginning the actual work is not the true test of the time when the employment begins. * * * It is not necessary that he hour of work shall have arrived and that the work shall have been actually begun in order to bring an accident within the scope of the employment." Costley v. Nevada Industrial Insurance Commission, 53 Nev., 219, 296 P., 1011, 1013.
"In applying the general rule that the period of going to and returning from work is not covered by the act, it is held that the employment is not limited by the exact time when the workman reaches the scene of his labor and begins it nor when he ceases, but includes a reasonable time, space, and opportunity before and after, while he is at or near his place of employment." Hills v. Blair. 1914, 182 Mich., 20, 148 N.W., 243, 246.
"To constitute one an employee it is essential that there shall be a contract of service. Honnold on Workman's Compensation, c. 51, p. 176 (1918 Ed.). The test by which to determine whether one person is another's employee, within the rule making the employer liable for injuries resulting from the negligence of this employee, is whether the alleged employer possesses the power to control the other person in respect to the transaction out of which the injury arose. Id. c. 49, pp. 167, 168. See 20 C.J., p. 1241." Essbee Amusement Corporation v. Greenhaus, 114 N.J.L., 492, 177 A., 562, page 563. Also, Brower v. Franklin Tp., 1938, 119 N. J.L., 417, 197 A., 367.
If there is any doubt remaining, it is removed by Section 6 of the Act: "Every contract of service between an employer and employee covered by this Act, written or implied, now in operation or made or implied prior to the taking effect of this Act, shall, after the Act has taken effect, be presumed to continue, subject to the provisions of this Act."
Therefore the Court concludes and so holds that the hiring, or contract for employment, is the jurisdictional factor; that the Compensation Act is operative and controls as to the particular controversy.
The complaint alleges in substance that the plaintiff had not stated that she intended to file a claim, nor filed any claim for the death of her husband under the Act, nor was she requested by anyone to indicate if she was going to file a claim, and that no claim or semblance of claim was interposed by her. All contentions in that connection are met by Hill v. Skinner, 195 S.C. 330, 11 S.E.2d 386. The case not only answers the particular question, but bears on other questions below discussed. The Supreme Court stated at page 339 of 195 S.C. at page 390 of 11 S.E.2d: "Section 27 does not require that the employer must wait until the claimant has filed with the Commission a written ten claim for compensation before making his demand for a physical examination of the claimant. Such requirement would defeat the purpose of such examination. The employer desires to know, and is entitled to know, the condition of the claimant at the time of the injury. He may take steps to minimize the effects of the injury and thus reduce his liability. * * * To say that the claimant may delay the physical examination for so long a time after the injury as he wishes, is to put it in his power to defeat the benefit to the employer of such examination. The act must be construed in justice to both parties and must not impose a burden on either."
This Court cannot do otherwise than to conclude and hold that the filing of a claim or the indication of the filing does not enter into the operation of the Act, and so does.
Another question is that it is alleged the autopsy was sought and had by the insurance carrier and not by the employer. Hill v. Skinner et al., supra, 195 S.C. at page 335, 11 S.E.2d, at page 388, disposes of this: "An insurer certainly stands in the shoes of its insured employer, having his rights and being subject to his obligations."
The germane question for decision is now presented. The last clause of Section 27 of the Act relates to autopsies. It is: "The employer, or the Industrial Commission, shall have the right in any case of death to require an autopsy at the expense of the party requesting the same."
The views of the Court as to the wisdom or harshness of the statute and its operation are not matters for consideration. The statute has been made and the sole purpose is to construe it as made in an endeavor to arrive at the legislative intent.
As previously observed, the complaint alleges that the deceased died of a heart attack and without an intervening accident. The plaintiff contends that any autopsy right under the statute did not apply to a case of that nature. The Court is unable to so restrict the statute. Its language is plain and unambiguous. There is not specification as to the nature of the deaths to which the autopsy right applies, and apparently intentionally so. The language unqualifiedly states, "in any case of death." The above quotation from Hill v. Skinner et al., supra, is highly applicable. It was undoubtedly realized in the enactment that there are and always will be deaths to employees which present a borderline between accidental and natural origins which must have resulted in the use of the words, "in any case of death." The Court is unable to agree with the contentions of the plaintiff in these connections and they are overruled.
The complaint further alleges in substance that the plaintiff objected and refused to consent to the autopsy; that she was not given an opportunity to be heard by any judicial or quasi-judicial body; that there was no hearing by such body or as required by law; that the same was had by a request without notice to her, to the secretary of the industrial commission, without a hearing before the commission or an order of the commission therefor. The plaintiff relies on the alleged facts in these connections as the basis of the claim for a high-handed, illegal and unlawful autopsy in violation of her rights.
The statute provides: "The employer * * * shall have the right * * * to require an autopsy." It does not state "may"; it does not qualify; it is unequivocally mandatory. "* * * and * * * the mandatory provisions of the section become operative and are binding upon the court." Hill v. Skinner et al., supra. There are no provisions relating to notice, consent or objections.
The statute specifically provides that "the employer, or the industrial commission" shall have the right to require the autopsy. It is needless to comment that that provision gives the right to either. There is no ambiguity.
The statute further specifically provides the right to require the autopsy shall be "at the expense of the party requesting the same." There are no provisions as to hearing, procedure, order, or other formality, by or before any body, whether judicial or quasi-judicial. The Court is not at liberty to insert such provisions, regardless as to whether it thinks them advisable or inadvisable. The evident intention was for the same to become operative upon request without further formality.
The situation is not entirely without a chart. In Hill v. Skinner et al., supra, the first portion of Section 27 as to medical examination was in issue. It provides that the "employee, if so requested by his employer or ordered by the Industrial Commission, shall submit himself to examination," etc. It further provides that compensation should be denied during the period of refusal. The employee had not decided whether he would claim under the Compensation Act or sue a third party. No claim had been filed under the Act. In the interim the insurance carrier (without any further formalities) requested the employee to submit to examination. It was not permitted. The employee later filed claim. The issue was whether the employee was entitled to compensation during the period of the refusal. The Court held that the statute was mandatory and the claim for the period was denied. The following excerpt from pages 335 and 336 of 195 S.C. page 388 of 11 S.E.2d, are quite persuasive, if not conclusive: "At the hearing before Commissioner Martin he suggested that Section 63 of the Act had not been invoked. This section provides that the Commission or any member thereof may upon the application of either party or upon its own motion appoint a physician or surgeon to make any necessary medical examination of an employee. And it was also argued before me that no order for the examination of claimant was made by the commission. But by reference to the above-quoted terms of Section 27, the claimant is required to submit himself to examination, `if so requested by his employer or ordered by the Industrial Commission'. (Emphasis added [and by the Court]). In other words, a request for the examination is as effective under the terms of this section as an order from the Commission."
Further considerations enter. Ham v. Mullins Lumber Co., supra [ 193 S.C. 66, 7 S.E.2d 716], establishes the following very pertinent rules relating to the construction of the Act: "`* * * They (the courts) have broadly held that the acts are to be interpreted in the light of, or so as to promote, their purposes or objects, with reference to their subjects, and in the light of, or so as to remedy, the ills or evils they were designed to remove; that the acts are to be construed according to, or so as to effectuate the Legislature's intent or purpose; * * * and that humane principles should guide interpretation of the acts. On the various grounds that the acts are remedial in their nature, that they are commendable legislation, that they have a beneficent purpose, that they are enacted for humane purposes, are grounded in justice * * * the courts have very generally held that they should, must or will be accorded a liberal or broad construction or interpretation, in order to promote, or effectuate their purposes, or that they will be given such construction in order to promote justice and the public welfare, the spirit, reason, or intent of the laws, and not the latter, controlling, and technical rules and refinements not being permitted to defeat their purposes * * *.' Extracts from 71 C.J., pages 341-350."
The excerpts above quoted from Hill v. Skinner et al., supra, 195 S.C. at page 339, 11 S.E.2d 386, again became highly applicable. In many death cases the rights as between the employer as against the employee, or the converse, as to cause, often became imperative. Time is an essential element in the determination of the cause. Swift action is demanded in relation to interment and also bodily deterioration. The legislative body in the particular enactment undoubtedly considered the same "in the light of, or so as to remedy, the ills or evils [it was] designed to remove." Therefore the statute apparently resulted in its simplicity and absence of formal requirements. Plaintiff's counsel referred to a number of decided cases from other jurisdictions. Detailed consideration is not necessary. The general statement is sufficient that they relate to the statutes of other states which are different, or where there is similarity, different facts prevailed; and further, that the Court is not prepared to adopt their holdings.
The Court is, therefore, of the opinion that all of the plaintiff's contentions as to the second ground of the demurrer must be overruled and the demurrer must be sustained on that ground, and it so concludes and holds.
Mr. Norbert A. Theodore and Mr. Heyward Brockinton, both of Columbia, Counsel for Appellant, cite: As to Employer or Insurance Carrier, over objection of next of kin of deceased employee, performing an autopsy: Workmen's Compensation Act, Sec. 27; 195 S.C. 330, 11 S.E.2d 386; 202 N.C. 176, 162 S.E. 223; 39 Ga. App. 273, 146 S.E. 641; 214 Ala. 332, 107 So. 905; 129 Kan. 100, 281 P. 860; 127 Me. 207, 142 A. 730; 155 Tenn. 34, 29 S.W. 19; 163 Tenn. 578, 44 S.W.2d 321; 67 Ind. App. 225, 119 N.E. 24; 68 Ind. App. 385, 120 N.E. 608; (Ind.), 21 N.E.2d 80. As to Cause of Action for Illegal Autopsy: (Mo.App.), 118 S.W.2d 116, and cases therein cited; (Ind.App.), 12 N.E.2d 360, and cases therein cited; (Tex., 1936), 99 S.W.2d 646; (1938, Same Case), 132 Tex. 280, 121 S.W.2d 986; (1941, Same Case), 149 S.W.2d 1071. As to right of surviving spouse to bring this action: 17 C.J., p. 1139; 25 C.J., p. 1017; 8 R.C.L., p. 686; 17 C.J., pp. 1144, 1145; 25 C.J.S., pp. 1025, 1028; 8 R.C.L., p. 695.
Messrs. Sloan Sloan, of Columbia, Counsel for Respondent, cite: As to Employer or Insurance Carrier, over objection of next of kin of deceased employee, performing autopsy: 195 S.C. 330, p. 335, 11 S.E.2d 386; Workmen's Compensation Act, Sec. 4, Sec. 27; 193 S.C. 66, p. 76, 7 S.E.2d 712; 202 N.C. 176, 162 S.E. 223; 39 Ga. App. 373, 146 S.E. 641; 214 Ala. 332, 107 So. 995; 129 Kan. 100, 281 P. 860; 127 Me. 207, 142 A. 730; 163 Tenn. 578, 44 S.W.2d 321, and Code of Tenn., Sec. 6855; 67 Ind. App. 225, 119 N.E. 24; 68 Ind. 385, 120 N.E. 608; (Ind.App.), 21 N.E.2d 80. As to Cause of Action for illegal Autopsy: (Counsel differentiate the Mo. and S.C. Statutes), 18 S.W. 116; (Ind.App.), 12 N.E.2d 360. As to right of surviving spouse to bring this action: 25 S.C. 25; 101 S.C. 532, 88 S.E. 30.
June 2, 1942. The Opinion of the Court was delivered by
The order of Judge Bellinger in this case bears evidence of thorough study and logical conclusion. In our judgment he has reached the correct disposition of the issues involved, and it would be useless for us to add anything to it.
It is affirmed, and it is ordered that it be reported as the judgment of this Court.
MESSRS. ASSOCIATE JUSTICES FISHBURNE and STUKES, and CIRCUIT JUDGES PHILIP H. STOLL and E.H. HENDERSON, ACTING ASSOCIATE JUSTICES, concur.