§38.1 Generally

The Case: Crawford v. J. Avery Bryan Funeral Home, Inc., 253 S.W.3d 149, 157 (Tenn. Ct. App.2007).

The Basic Facts: Various members of the Crawford family brought action against funeral home, a cremation facility, and others alleging irregularities in the cremation of their son and brother. The decedent's wife did not bring suit.

The Bottom Line:

• "In Hill v. Travelers' Ins. Co., 154 Tenn. 295, 294 S.W. 1097 (1927), the wife of the decedent brought suit seeking damages for 'an unauthorized mutilation and exposure of the body of her deceased husband.' Id. The wife in Hill had given consent for an autopsy to be performed on her deceased husband. The consent was given subject to some limitations, including a requirement that the autopsy be conducted in a private place and the body could not be mutilated. The wife claimed neither of these conditions were met. The wife's claim was dismissed for failure to state a cause of action. Our Supreme Court reversed, stating, in part, as follows:

  The case of Larson v. Chase, 47 Minn. 307, 50 N.W. 238, 14 L.R.A. 85, 28 Am. St. Rep. 370, has been referred to many times in cases from other jurisdictions as the leading case on this question. It was there held that the right to the possession of a dead body for the purposes of decent burial is vested in the surviving husband or wife or next of kin, and that it is a right which the law will recognize and protect. While disaffirming the proposition that a corpse is property in the ordinary commercial sense, the court held that any interference with the right of possession for burial, by mutilating or otherwise disturbing the body, is an actionable wrong and a subject for compensation. Dealing with the measure of damages for such a wrong, the Supreme Court of Minnesota said:

  'Wherever the act complained of constitutes a violation of some legal right of the plaintiff, which always, in contemplation of law, causes injury, he is entitled to recover all damages which are the proximate and natural consequence of the wrongful act. That mental suffering and injury to the feelings would be ordinarily the natural and proximate result of knowledge that the remains of a deceased husband had been mutilated, is too plain to admit of argument.'

  We have not been able to find any dissent from the general propositions asserted in Larson v. Chase, supra.
  
  The plaintiff in the present case, having the undoubted right to refuse to permit an autopsy to be held at all, had the right to clothe her consent with any stipulations or limitations she might choose to make. The expressed limitation that the body should not be mutilated clearly negatives any consent on the part of the plaintiff that any portion of the body should be severed and removed. Also, we think the plaintiff had the right to dictate that the autopsy be held in private and not in a public place. The violation of either or both of these limitations on the permission given by the plaintiff for the autopsy was a trespass on her rights as defined in the authorities hereinabove cited.
  
  It is our conclusion, therefore, that the declaration did state a cause of action against both of the defendants."

  253 S.W.3d at 156-57 (citing Hill, 294 S.W. at 1098-99).

Other Sources of Note: Harris v. Horton , No. M2008-02142-COA-R3-CV, 2009 WL 4801719 at *4 (Tenn. Ct. App. Dec. 14, 2009) (taking and display of gruesome photographs of decedent taken at accident scene did not constitute any physical contact with the corpse and did not constitute disturbing or mishandling human remains).

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