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report were: “1. That neither a corpse nor its burial is legally subject, in any way, to ecclesiastical cognizance, nor to sacerdotal power of any kind; 2. That the right to bury a corpse and to preserve its remains is a legal right, which the courts of law will recognize and protect; 3. That such right, in the absence of any testamentary disposition, belongs exclusively to the next of kin; 4. That the right to protect the remains includes the right to preserve them by separate burial, to select the place of sepulture, and to change it at pleasure.”

Following the law as announced by Mr. Ruggles in the report above referred to, this court held, in the case of Bogert v. City of Indianapolis, 13 Ind. 134, that the bodies of the dead belong to the surviving relatives, in the order of inheritance, as other property, and that they have the right to the custody and burial of the same.

Our conclusion is, that the custody of the corpse and the right of burial do not belong to the executor or administrator, but to the next of kin, and that the courts of this state possess the power to protect such next of kin in the exercise of such right.

It follows that the court did not err in overruling the demurrer to the complaint in this cause.

The second paragraph of the answer avers that the appellants prepared the corpse named in the complaint for burial on or about the tenth day of December, 1884, and placed the same in a vault wherein were placed the corpses of other children of like age, and in all respects prepared in the same manner for interment; that in consideration therefor the appellees promised and agreed to pay the appellants a fair and reasonable price, which was twenty dollars; that on or about the twenty-ninth day of April, 1885, the appellees notified the appellants that they desired to have their said child interred, when, for the first time, they discovered that said body and corpse had beer, by the appellants, shipped by mistake to some point for interment not then remembered by them; that they then and there so notified the appellees, and promised them to immediately find the place of the interment of said body, and without delay return the same to appellees, to which the appellees expressed their satisfaction; that on the fourth day of May, 1885, they learned that said corpse had been shipped to and interred at Ohio, in the state of Pennsylvania, and so notified the appellees, and informed them that they would have said corpse returned by express at their expense, to wit, the sum of fifty dollars, to which the appellees assented; that immediately thereafter, and before said corpse had time to arrive at the city of Indianapolis, to wit, on the fifth day of May, 1885, the appellees commenced this action; that afterwards, on or about the tenth day of May, 1885, the body of said child was returned to appellants, and was taken by the appellees, and interred; all of which was taken and received by the appellees in full and perfect satisfaction of all wrongs and injuries incident to the mistake made by the appellants in sending said body to the town of Ohio, in place of one of said other like corpses in their said vault; that appellees have failed to pay said sum of twenty dollars, or any part thereof, although the same was past due at the time of the commencement of this suit.

We do not think the court erred in sustaining a demurrer to this answer. It is drawn and proceeds upon the theory that the appellees accepted the acts of the appellants, in the matter of the return of the corpse, in full accord and satisfaction of the cause of action set up in the complaint. The averment found in the answer, at its close, to the effect that a return of the corpse was taken and received by the appellees in full and perfect satisfaction of all wrongs and injuries incident to the mistake, etc., made by the appellants, is the statement of a mere conclusion not warranted by any premises preceding it. It was the duty of the appellants to procure a return of the corpse; and there is no averment in the answer that the appellees agreed with the appellants that they would accept such return in satisfaction of the cause of action upon which the complaint is based.

The only matter urged under the assignment of error, calling in question the action of the court in overruling the motion for a new trial, relates to the instructions in the cause. The court instructed the jury that in assessing the damages they might take into consideration the mental anguish of the appellees, if they suffered any mental anguish on account of the matters set out in the complaint.

In this instruction we do not think the court erred. The case is analogous in principle to the case of Reese v. Western Union Tel. Co., 123 Ind. 294. In that case it was held that the telegraph company was liable for the mental anguish oc casioned by its failure to deliver a message in case of extreme illness. The doctrine announced in that case is fully supported by the cases of Western Union Tel. Co. v. Cooper, 71 Tex. 507; 10 Am. St. Rep. 772; Hays v. Houston etc. R. R. Co., 46 Tex. 272; Wadsworth v. Western Union Tel. Co., 86 Tenn. 695; 6 Am. St. Rep. 864; Beasley v. Western Union Tel. Co., 39 Fed. Rep. 181. The cases rest upon the reasonable doctrine that where 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 accrue by reason of a breach of the contract on his part. The case of Wadsworth v. Western Union Tel. Co., 86 Tenn. 695, 6 Am. St. Rep. 864, is, in some of its features, much like the case now before us. In that case the following telegram was sent to Mrs. Wadsworth, the sister of the deceased:

MEMPHIS, October 3, 1887. “ To MRS. T. J. WADSWORTH, Bybalia, Miss.

" Mr. Howell died this morning. Advise us what to do. Will look for some one on morning train.

“R. C. WALDEN." The company negligently failed to deliver this telegram. In a suit by Mrs. Wadsworth against the telegraph company, in which she sought to recover damages on account of injury to her feelings in being deprived of the privilege of being present to take charge of the body and to superintend its burial, the learned judge who delivered the opinion of the court said: “ To hold that the defendant is not liable in this case for the wrong and injury done to the feelings and affections of Mrs. Wadsworth by its default would be to disregard the purpose of the telegrams altogether, and to violate that rule of law which authorizes a recovery of damages appropriate to the objects of the contract broken.”

When the appellants contracted with the appellees to safely keep the body of their daughter until such time as they should desire to inter the same, they did so with a knowledge of the fact that a failure on their part to comply with the terms of such contract would result in injury to the feelings of the appellees, and they must therefore be held to have contracted with reference to damages of that character, in the event of a breach of the contract on their part. After a careful examination of all the questions presented

Au. 87. REP., VOL. XXI. -17

by the record in this cause, we find no error for which the judgment should be reversed.

Judgment aflirmed.

PersonAL PROPERTY – BODIES or Dead PERSONG. — The general rule is, that the dead bodies of persons are not subjects of property: State v. Doepke, 68 Mo. 208; 30 Am. Rep. 785; Griffith v. Charlotte etc. R. R. Co., 23 8. O. 250; 55 Am. Rep. 1. Yet the relatives of a deceased have certain rights with respect to his body which the law recognizes: Pierce v. Swan Point Cemetery, 10 R. I. 227; 14 Am. Rep. 667. Coinpare Weld v. Walker, 130 Mass. 422; 39 Am. Rep. 465, and note.

DamagES - MENTAL AXGUISH AND SUFFERING. — As to when mental suffering may be considered as an element of damages for the breach of a contract, see Western Union Tel. Co. v. Broesche, 72 Tex. 654; 13 Am. St. Rep. 843, and note. Compare note to Austin v. Wilson, 60 Am. Dec. 767775.

BEDFORD BANK V. ACOAM.

(125 INDIANA, 881.] BANK MAY PAY PROMISSORY NOTE OF ITS DEPOSITOR WHEN.

- Where a promissory note, negotiable and payable at a bank, is sent to said bank properly indorsed for collection, it has the right to pay the note out of any general funds of the maker on deposit with it, and charge his account with the amount. One who has drawn such a note cannot be heard to say, after his banker has paid a just debt for which he had given a note, to which the maker claims no defense, that the payment was wholly voluntary and unauthorized. In such a case, the banker who has paid the note is entitled to hold it as the equitable owner or pur. chaser, and is entitled to set it off in a suit to recover a balance due the depositor on general account. Action to recover the balance of a deposit. The opinion states the case.

J. W. Buskirk, M. F. Dunn, and G. G. Dunn, for the appellant.

J. Giles, for the appellee.

MITCHELL, J. On the eighth day of May, 1888, John W. Acoam had a sum of money on general deposit in the Bedforid Bank, in Bedford, Indiana. The bank on that day received a note, indorsed to it for collection, payable by the depositor to Stone, Sons, & Co., at the Bedford Bank. The bank remitted the amount due on the note to its correspondent, and charged the account of its depositor with the sum remitted. This was done without notice to the depositor, or other authority, except such as the law implies from the fact that the note was negotiable and payable at the bank, and was duly indorsed and sent o it for collection. The depositor repudiated the act of his banker, and sued the bank to recover an alleged balance, which it is conceded he is entitled to recover, unless the bank has the right to set off the amount of the note above mentioned. There is no question but that the bank acted in good faith, nor is there any dispute but that the plaintiff below owed the note to Stone, Sons, & Co.

It is settled that as soon as money is deposited in a bank, the depositor and the bank assume the relation of debtor and creditor. The money at once becomes the property of the bank, and unless the money deposited was designed for a special purpose, or unless there exists an agreement to the contrary, the bank has the right to apply a sufficient amount of the deposit to the payment of any debt due from the depositor to the bank: Lamb v. Morris, 118 Ind. 179. If the Bedford Bank had discounted the note of Stone, Sons, & Co., or taken an absolute assignment to itself of the paper, there would be no dispute about its right to retain the amount due out of the depositor's account. Is the right of the bank to set off the sum admitted to be due on the note destroyed because the amount was paid, not by way of discount, but in consequence of the note baving been made payable at the bank? The authorities are not agreed upon the question, but upon principle, and in consonance with the weight of authority, it seems to us the right of the bank to set off the amount must be affirmed. In England, it is the settled rule that if a note is made payable at a particular bank, the maker thereby authorizes the bank to pay it out of his funds on deposit, or by advancing the amount to his credit. Accordingly, in Robarts v. Tucker, 16 Ad. & E., N. 8., 560, Parke, B., said: “If this were the ordinary case of an acceptance made payable at a banker's, there can be no question that making the acceptance payable there is tantamount to an order, on the part of the acceptor, to the banker to pay the bill to the person who is, according to the law merchant, capable of giving a good discharge for the bill." So in Kymer v. Laurie, 18 L. J. Q. B. 218, certain bankers holding in their hands an amount of money on account of a depositor, paid a bill of exchange which had been made payable at their banking-house, when it became due and was presented to them by the holder. No orders to pay the acceptance had been given, nor had the authority contained on the face of the bill been countermanded. It was held that the

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