Jackson v. Savage (109 A.D. 556, 1905)

Clarke, J.:

Appeal from an interlocutory judgment overruling a demurrer interposed to separate defenses in the answer. The complaint alleges that the defendants are the officers,.directors and trustees of the Roosevelt Hospital, a domestic corporation; that on or about the 5th day of December, 1903, Ella Jackson, the wife of this plaintiff, suffering at the time, as plaintiff is informed and believes, from pneumonia, was removed by this plaintiff to the Roosevelt Hospital for treatment of her sickness and remained there until the date of her death, December 19, 1903 ; that on the same' day plaintiff had the body of the deceased wife removed from said hospital by an undertaker for.the purpose of burial; on information and belief that after the death of said Ella Jackson, and before the removal of her remains, these defendants, their agents or employees, without the permission of this plaintiff or without the permission of any relative or friend of said Ella Jackson or without her permission before-her death, mutilated and dissected ,her body or caused her body to be mutilated and dissected, in such a manner that the muscles.- of her arms and other parts of her body were removed, and that her stomach was removed, and that portions of the flesh of her body were removed ; that the plaintiff had always lived, in happiness with his wife ; that the acts on the part of the, defendants, their, agents or employees, complained of caused this plaintiff great suffering in mind and body, was a great shock'to him, and deprived him of his natural right to inter the body of his deceased wife in as perfect a condition as her sickness and the due course of nature that led to her. death would permit, and greatly outraged his religious feeling in respect to the mutilation of the corpse of his deceased wife, to his damage in the sum of $25,000, for which he demanded, judgment. The' defendants in their answer admitted the incorporation of the hospital and that they were the officers and trustees thereof, and alleged that they “ have no knowledge or information sufficient to form a belief as to the, truth of the ” remaining allegations of the complaint, “ wherefore they deny the same and each of. them.”

The answer proceeds.: “ Fourthly. And for a further and separate defense, these defendants state and show ,on information and belief that a person named Ella Jackson was brought to the said ‘ The Roosevelt Hospital-’ suffering from a fibroid tumor on or about the 8th day of December, 1903, and at her own request was operated upon, and died, at said Hospital on or about the 12th day of December, 1903.” To this separate defense the. plaintiff demurred upon the ground that it is-insufficient in law upon the, face thereof.

The defendants claim that by demurring to the answer the snffk •ciency of the complaint is to be inquired into. By section 309 of the Penal Code the unauthorized dissection of the body of a human being is a misdemeanor. Foley v. Phelps (1 App. Div. 551) is a direct authority upholding the right of action here set forth and for the sufficiency of the complaint. The defense > demurred to is bad. It does not meet the allegations of the complaint. Waiving the question of identity, the gravamen of the complaint is-the .unauthorized dissection of a body after death. The plaintiff must establish . that essential fact. Having established it it would be no answer to prove a prior operation during life. . If, as proof of. dissection after death, he should-introduce proof as to the condition of the body when received by him, it would be entirely competent to prove that the said condition was the result of an operation and not of dissection. Ho averments in the answer would be required for the admission of such evidence. It would go