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is a statement of a mere conclusion, not warranted by any premises pre


assessing damages for the breach of a contract may take into consideration the mental anguish of the plaintiffs, if they suffered any mental anguish on account of the matters set out in the complaint. If a person contracts, upon a sufficient consideration, to do a particular thing, the failure to do which may result in anguish and distress of mind on the part of the other contracting party, he is presumed to have contracted with reference to the payment of damages of that character in the event such damages ao crue by reason of a breach of the contract on his part. Action to recover damages. The opinion states the case. B. F. Davis, for the appellante. C. E. Clark, for the appellees.

COFFEY, J. In this case the complaint alleges that appel. lees, being husband and wife, on the tenth day of December, 1884, employed the appellants, who were undertakers and funeral directors in the city of Indianapolis, to take charge of and safely keep in a secure vault the body of the deceased daughter of the appellees until such time as they might be prepared and ready to inter the same; that appellants, in pursuance of such employment, took charge and possession of said remains, and placed the same in a vault, and that the appellees compensated the appellants to safely keep the said remains therein until such time as they might be prepared and ready to inter the same; that the said appellants did not safely and securely keep said remains, but carelessly and nego ligently took or allowed the same to be taken and buried, or otherwise disposed of, and wrongfully refused, and still refuse, to inform the appellees where said remains have been removed to, further than to say, “Your child is in Ohio"; that by reason thereof appellees have suffered great distress of mind, and are damaged in the sum of five hundred dollars, etc.

The court overruled a demurrer to this complaint, whereupon the appellants filed an answer in three paragraphs.

The court sustained a demurrer to the second paragraph of said answer, and a trial of the cause by a jury, upon issues formed, resulted in a verdict for the appellees, upon which the court, over a motion for a new trial, rendered judgment.

The assignment of error calls in question the correctness of the ruling of the court in overruling a demurrer to the complaint, in sustaining a demurrer to the second paragraph of the answer, and in overruling the motion of the appellants for a new trial.

The appellants claim that the complaint is not sufficient, 1. Because it does not show a cause of action in favor of both of the appellees; 2. Because the right to control a corpse, and superintend the burial thereof, is in the executor or administrator, and not in the next of kin, and for this reason the complaint does not state a cause of action in favor of either of the appellees.

It is settled that where a complaint does not state a cause of action in favor of all the plaintiffs, it is not sufficient to withstand a demurrer: Nave v. Hadley, 74 Ind. 155; Yater v. State, 58 Ind. 299; Neal v. State, 49 Ind. 51. But if any cause of action exists in favor of the appellees in this case, we think

it is joint.

It is alleged, substantially, in their complaint, that both the appellees entered into the contract of bailment therein set out with the appellants, and that they jointly compensated the appellants for such bailment. It follows, we think, that they are entitled to maintain a joint action for a breach of such contract. The appellants are in error in assuming that the complaint sounds wholly in tort, and that there is no community of interest existing in the appellees.

While it may be true that the matters charged partake largely of the nature of a tort, yet they are so intimately connected with the contract of bailment alleged in the complaint As to be incapable of separation from it; and in this consists the unity of interest which gives the joint right to prosecute the action.

The second objection urged against this complaint presents a much more difficult question. The decided cases bearing upon the question are somewhat confused, and are not free from conflict. This confusion and conflict arise, no doubt, in the attempt on the part of some of the courts, in this country, to follow the decisions of the courts in England, while other courts have asserted that the rule of decision in that country can have no application in the American courts. It is quite clear to us that but little light can be had upon the question now under consideration from the decisions found in the English reports, for the reason that the jurisprudence of that country is peculiarly compounded, embracing largely the ecclesiastical element, not found in our jurisprudence. In that country the partition of judicial authority between the church and the state has materially narrowed the powers and actions of the common-law courts. This condition is peculiar to England, and for that reason the English decisions upon questions kindred to the one before us should not exert any controlling influence over the courts of this country, where no such partition exists. It is asserted, and perhaps truthfully, that Cuthbert, Archishop of Canterbury, first introduced burial in church-yards in England, in the year 750.

The exclusive power of the ecclesiastics, denominated "ecclesiastical cognizance," became both executive and judicial soon after the Norman Conquest. It was executive in taking the dead body into actual possession and guarding its repose in consecrated ground, and it was judicial in deciding all controversies involving the possession or the use of holy places, as well as in adjudicating upon the question as to who should be allowed to lie in consecrated earth, and in fact who should be allowed to be interred at all. The clergy monopolized the judicial power over the subject of burial; while the secular courts, stripped of all authority over the dead, were confined to the protection of the monuments or other external emblems of grief erected by the living.

The heir could maintain no action in the common-law courts for the disturbance of the remains of his buried ances. tors, the remedy for such wrong belonging to the parson, in whom was vested the freehold of the soil in which the burial was made: Third Institute, 203.

The power exercised by the ecclesiastical tribunals of England is not spiritual, but temporal and judicial. It is a legal secular authority which they have gradually abstracted from the ancient civil courts, to which it had originally belonged. It will thus be seen by this brief review of the law in England, upon the subject now in hand, that the decisions of the courts of that country upon the subject of the right of relations to control the bodies of the dead are not authorities in this country. As we have no division of power between the church and the state in this country, it follows that much of the power exercised by ecclesiastical tribunals in England is vested, of necessity, in the secular courts, here charged with the general administration of the law.

The necessity for the existence and exercise of such power must be apparent to all. Without it the right to take the exclusive control of a corpse, and care for and bury it, could not be enforced. The father could not legally protect the remains of his children, or the husband of his wife, in the absence of such power. While the law might punish the body-snatcher who desecrated the grave, it would be power. less to restore the body to the relatives. The courts in this state, in our opinion, possess the power to enforce the rights of the appellees in this case to the body of their deceased daughter, if the law gives them the right to its custody, and the right to give it decent burial; and they also possess the power to assess such damages as may accrue to them on account of being deprived of such right.

It will not do to say that the custody of a corpse belongs to the executor or administrator of the deceased, and that it must be interred by him, for under our law no letters of administration can be granted, except to relatives, for the period of twenty days after death. In the event of the inability of the relatives to give the bond required by law, no provision for the burial could legally be made during that period. Certainly, our law-makers did not understand that no one except an executor or administrator had the legal right to the custody and burial of a corpse. Then in whom is the right vested? In the case reported in 4 Bradford, 503, this question is fully considered and passed upon by the supreme court of New York. In that case, as appears by the report, in widening Beekman Street, in the city of New York, the commissioners, in estimating the assessments, awarded to a corporation known as the Brick Presbyterian Church twenty-eight thousand dollars as the value of a certain piece of land taken for that purpose.

The names of all the persons interested in the land not being known, the money was paid to the chamberlain of the city of New York, to abide the order of the court. In the parcel of land so taken were embraced certain vaults for the burial of the dead, in which various individuals claimed rights of interment, and the use thereof as vaults for the burial of the dead. The corporation, the Brick Presbyterian Church, was entitled to the whole of said sum, subject to the rights of said vault-holders. The question of the rights of the respective parties in this fund was referred to the Hon. Samuel B. Ruggles, with directions to investigate the facts and report the amount due to each. During his investigation, the remains of one Moses Sherwood were identified by his daughter, Maria Smith, who, acting for herself and sister, and for the descend. Ants of her brothers and sisters, five in all, who had died, claimed that such remains should be reinterred in a separate grave, in such suitable locality as she might select; that the existing monument be erected over such grave, and that the necessary expenses be defrayed out of the fund in court. It appeared that Moses Sherwood was buried on the strip of ground taken in widening the street, in the year 1801; that the tombstone was erected at the time to mark his grave, and quietly stood there over his remains until they were thrust aside by the city corporation to give place for the cartways and foot-walks of Beekman Street as widened.

Mr. Ruggles filed his report, and the cause coming on for hearing at the special term of the supreme court, in April, 1856, the report, as the law of the case, was affirmed. The report contains a statement of the learned referee's investigation of the law of burial, and it is believed to be the most accurate and elaborate collection and statement of the law upon that subject yet published. In commenting upon the question now under consideration, Mr. Ruggles says: “It will be seen that much of the apparent difficulty of this subject arises from a false and needless assumption in holding that nothing is property that has not a pecuniary value. The real question is not of the disposable, marketable value of a corpse, or its remains, as an article of traffic, but it is of the sacred and inherent right to its custody, in order decently to bury it, and secure its undisturbed repose. The dogma of the English ecclesiastical law that a child has no such claim, no such exclusive power, no peculiar interest in the dead body of its parent, is so utterly inconsistent with every enlightened perception of personal right, so inexpressibly repulsive to every proper, moral sense, that its adoption would be an eternal disgrace to American jurisprudence. The establishment of a right so sacred and precious ought not to need any judicial precedent. Our courts of justice should place it, at once, where it should fundamentally rest forever, on the deepest and most unerring instincts of human nature, and hold it to be a selfevident right of humanity, entitled to legal protection by every consideration of feeling, decency, and Christian duty. The world does not contain a tribunal that would punish a son who should resist, even unto death, any attempt to mutilate his father's corpse, or tear it from the grave for sale or dissection; but where would be find the legal right to resist, except in his peculiar and exclusive interest in the body?

The final conclusions reached by Mr. Ruggles upon the subject of the legal aspect of the matters referred to him for his

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