Carey v. Lima, Salmon & Tully Mortuary

Citations: 168 Cal. App. 2d 42; 335 P.2d 181; 1959 Cal. App. LEXIS 2418Docket: Civ. 17862

Court: California Court of Appeal; February 17, 1959; California; State Appellate Court

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In the case of Florence Carey et al. v. Lima, Salmon and Tully Mortuary, the plaintiffs sought damages for alleged negligence by the defendants in embalming and shipping their deceased father's body. After the trial, the court granted a directed verdict for the defendants. The body, upon arrival in Enid, Oklahoma, was found in a decayed and malodorous state, causing emotional distress to the plaintiffs, which they argued constituted a compensable injury under established legal principles.

The plaintiffs contended that there was sufficient evidence to present the question of the defendants' negligence to a jury, particularly referencing the testimony of Richard M. Parkis, a funeral director who examined the body. Parkis opined that the embalming fluid had failed to circulate properly, highlighting that an embalmer can take corrective actions to ensure adequate circulation, especially for a shipped body. He noted that his team spent significant time restoring the body, primarily focusing on cosmetic improvements rather than proper embalming.

Defendant Lima testified that he believed he had achieved proper circulation during the embalming process. However, the evidence presented created a conflict, as a jury could reasonably find in favor of either party. The court noted that Parkis' expert testimony could support a finding of negligence by the defendants, implying a duty to perform the embalming competently, particularly given the shipping context.

The defendants argued there was no explicit assurance to preserve the body for a specific period, but the court indicated that an implied obligation to exercise reasonable care could be inferred. Additionally, while the defendants claimed that other factors could have contributed to the body's condition, Parkis did not assert that these were uncontrollable variables, suggesting they could still be managed through proper embalming practices.

Mr. Parkis testified that while occasional issues can arise during embalming, the jury could find that the cause of the body’s condition was due to improper embalming fluid distribution, rather than other uncontrollable factors. This supports the plaintiffs' case and challenges the decision to direct a verdict for the defendants, as there was sufficient evidence to support the plaintiffs' claims. Expert witness D.E. Ashworth was cross-examined about the adequacy of the embalming job based on photographs, but an objection to his opinion was sustained, as it was deemed a question for the jury. The admissibility of expert testimony hinges on whether the matter is beyond common knowledge; however, the court may exercise discretion in excluding such testimony if it believes the jury can adequately make a determination based on the evidence presented. In this instance, the court’s decision to exclude Ashworth’s testimony did not constitute an abuse of discretion, as the jury had enough information to assess the embalming quality independently. Additionally, without an offer of proof regarding Ashworth’s potential response, the objection’s ruling cannot be reviewed on appeal. The plaintiffs submitted seven photographs of the body as evidence.

The court refused to admit two color transparencies of a body into evidence, determining they were merely color versions of previously submitted black and white photographs and did not provide any additional relevant information. Despite plaintiffs' counsel arguing that the color photographs depicted the body's condition more clearly, no differences were highlighted, and the adequacy of the black and white photographs was not contested. The court deemed the color photographs cumulative and therefore properly excluded them. The judgment was reversed, with Judges Peters and Bray concurring. Additionally, an objection was noted regarding a question posed to a plaintiffs' expert about the quality of embalming, but it remains unclear if a ruling was made on that matter, as plaintiffs did not pursue it further.