Neilson v. Brown

The second count alleges in substance that, the plaintiff's wife having been enticed away by the defendants, and having died during her absence from him, the defendants, having charge of the funeral services, refused to allow him to see her body after death, or to attend the funeral, and prevented him from so doing. In order to sustain this count we must hold that the husband has the right thus to see the body of his wife and to attend the funeral services. We find no ground, either in reason or authority, for holding that any person has a right to enter the possessions of another without his consent, for attending a funeral. It is suggested that the public nature of funeral ceremonies implies a license; but such license, if one arose in this case, was revocable, and was clearly revoked by the subsequent conduct of the defendant as set out in the count. It is also suggested that the wrong-doing of the defendants in enticing away the wife raises a license of which the plaintiff may avail himself under this count; but we think that the right of the husband in this regard was, at most, a right to have the custody of the body of his wife, and to order the funeral ceremonies himself in his own possessions, and that the license, if any was implied, was to enter the premises of the defendants for the purpose of assuming such custody and removing the body for that purpose. But in this case there is no allegation of demand for the body, or refusal to deliver the same. The only allegation being that the plaintiff was prevented from attending the ceremonies which were proceeding under the charge of the defendants.

The third count alleges in substance that the defendants, having enticed away the wife of the plaintiff and intending to injure the plaintiff, so detained her from her husband, and so slandered the husband and spoke evil of her marriage with him as to weaken her mind and body, whereof she died. The plaintiff, in support of this count, relies on cap. 204, § 20, of the Public Statutes. We do not think this action can be maintained under that statute. We understand that statute to give a right of action in those cases in which, at common law, an action might have been maintained for the injury from which the death resulted; but death could result from no injury, unless an injury to the deceased person, and for such injury only the deceased person could have maintained an action. It follows, therefore, that no action can be maintained under this statute except in cases where the deceased person, had he lived, would have had an action. In this case the count alleges that the wife was by persuasion detained from her husband, and slanderous and false statements regarding him and her marriage were made to her. It seems clear that for these acts no action could have been maintained by the wife or for her use, and therefore the present action must fail.

Demurrers sustained.