On appeals from judgments of the District Court of the city of Camden.
For the appellant, J. Edward Fagen (George H. Jacobs, of counsel).
For the respondents, Isadore Berman (Albert B. Melnik, of counsel).
Before Justices Heher and Perskie.
The opinion of the court was delivered by
HEHER, J. These actions sound in tort. Each state of demand pleads three asserted causes of action; and their gravamina are the willful and wanton breaches of what seem to be conceded duties, assumed at plaintiffs' instance, first, to inter the remains of their deceased father in a lot in its cemetery reserved for the purpose "in a proper and decent manner," and, second, to conduct the burial in plaintiffs' presence.
The jury empanelled to try the common issues (the causes were tried together) returned verdicts for the plaintiffs; and from the consequent judgments, defendant appeals.
It is assigned for error, first, that the District Court judge denied defendant's motions to strike out the complaints and to nonsuit on the ground that the law does not permit of a recovery "for mental pain and suffering, unaccompanied by malice or actual damage;" and second, he instructed the jury that, in the appraisement of the injury, mental anguish was to be considered as a compensable element.
We find these to be the salient facts and circumstances: The grave prepared for the reception of the body was, in the attempted discharge of the duty resting upon defendant, dug in the wrong plot. The error was discovered by a member
of the bereaved family when the funeral cortege arrived at the cemetery; and defendant's superintendent then undertook to dig and prepare presently a grave in the proper lot, and to hold the remains and arrange with the family for the interment later in the day in their presence. There was evidence tending to show an explicit understanding -- a positive undertaking by the defendant -- that the committal to the earth should take place only in the presence of the family. When the family, including the plaintiffs, responding to the call of the undertaker, journeyed to the cemetery later in the day, they found that the burial had taken place and the grave filled. Their request to defendant's superintendent for an immediate opening of the grave was denied. This was on May 14th, 1935. At the constant insistence of plaintiffs, the grave was opened by defendant on September 13th, 1935, to permit of the identification of the body, but, for lack of a permit, the casket was not opened. It was immediately recommitted, and the grave closed. On September 17th, the casket was again brought to the surface and opened. It was found to contain the body of the deceased; and there was immediate reinterment.
The initial inquiry is whether there was evidence tending to show the infringement of a right. We resolve this in the affirmative. It was indubitably the plaintiffs' right, at the common law as well as in virtue of the obligation thus undertaken by the defendant company, to witness the interment. This is of the very essence and substance of a common law right growing out of the domestic relation. The family tie binds us to the place of final repose of all that is earthly of our departed kin; and, therefore, it was plaintiffs' civil right, one bestowed and shielded by the law, to have knowledge, altogether certain and specific, of the location of the last resting place, as well as the solace of the final leave taking. The early English common law sheds little light on the subject. During its formative period, ...