East Hill Cemetery Company of Rushville v. Thompson
| Decision Date | 28 March 1912 |
| Docket Number | 7,376 |
| Citation | 97 N.E. 1036,53 Ind.App. 417 |
| Parties | EAST HILL CEMETERY COMPANY OF RUSHVILLE v. THOMPSON |
| Court | Indiana Appellate Court |
Rehearing denied October 8, 1912. Transfer denied May 13 1913.
From Fayette Circuit Court; Will M. Sparks, Special Judge.
Action by James A. Thompson against the East Hill Cemetery Company of Rushville. From a judgment for plaintiff, the defendant appeals.
Reversed.
L. L Broaddus, Douglas Morris and Watson, Titsworth & Green, for appellant.
Conner, Conner & Chrisman, J. F. Joyce and Smith, Cambern & Smith, for appellee.
Action by appellee against the appellant, to recover damages for personal injuries, received while on the grounds of the appellant, through alleged negligence, in failing to keep in repair a certain bridge crossing a small stream in appellant's grounds. The appellee suffered a broken leg, and recovered judgment for $ 3,000 in the court below. The complaint is in two paragraphs, the first alleging that the appellant is a voluntary association, doing business in Rush County, Indiana, pursuant to the laws of the State, as a cemetery company, selling lots, and making deeds therefor in the cemetery under its control. It is averred that on Sunday, September 3, 1905, the appellee was lawfully in and upon the grounds and premises of the appellant, by and with the consent and invitation of the appellant. The circumstances attending the injury, the negligence of the appellant, and the damages resulting therefrom are all averred and set out in detail. The second paragraph of the complaint is substantially the same as the first, with the additional averment that prior to the date of the accident, the appellant had passed and published certain rules and regulations, which rules were in full force on September 3, 1905, one of which provided that "the gates of the cemetery grounds will be open for lot holders and visitors at all reasonable hours."
The complaint was answered in two paragraphs, the second of which was in denial. In the first paragraph it is averred that the appellant was organized pursuant to the act of June 17, 1852. The articles of association are set out, and it is averred that on July 15, 1859, the appellant purchased twenty acres of land, for the sum of $ 1,300, the deed therefor containing a clause that the land so conveyed was to be held by the trustees of appellant and their successors in office in perpetuity for the purpose of a cemetery; that each lot holder is a member of the corporation, and entitled to vote in the selection of trustees. It is also averred that the association was organized for charitable and benevolent purposes; that its object was to provide a place for the burial of the dead, and to maintain and keep the same in repair forever; that no capital stock was ever issued, and that the corporation has never declared nor ever paid any dividends; that its only source of revenue has been from the sale of lots for burial purposes in the cemetery grounds; that the funds derived from such sales have always been used in purchasing additional lands for cemetery purposes, and in maintaining and keeping the cemetery grounds in repair; that the association has no power to assess lot owners for the purpose of maintaining the cemetery; that there are more than 700 members of the corporation, who are lot owners in said cemetery; that the trustees have never charged, nor received any compensation for their services in transacting the business of the corporation; that all of the personal property of the corporation and the proceeds of future sales of lots will be required in maintaining the cemetery in reasonable repair.
Demurrers were overruled to each paragraph of complaint, and these rulings constitute the first errors assigned and argued by appellant. It will be noted that in each paragraph, it is averred that the injury was the result of the defendant's negligence, and that appellee "was lawfully in and upon the grounds and premises of the defendant by and with the consent and invitation of said defendant." We think these averments clearly show that the appellant at the time of his injury was not a trespasser or a licensee, and that a cause of action is stated in each paragraph of complaint.
Error is also assigned upon the sustaining of a demurrer to the first paragraph of answer. It is urged that this answer shows the appellant to be a charitable and benevolent organization, and therefore not liable for the negligence of its officers or agents. While it is averred that the association was organized for the purpose of providing a place for the burial of the dead, and not for profit; that it has no capital stock, has never declared dividends, and that its trustees draw no compensation for their services, yet it does appear that the appellant is in the business of selling burial lots, and maintaining a cemetery. The answer shows commendable public spirit on the part of the officers and members of the appellant, but there is nothing in the articles of association or in the law under which the appellant was incorporated that forbids the conducting of a business for profit, the payment of salaries to its officers or dividends to its stockholders. The officers of appellant were not administering a charitable trust, they were conducting a business, and we think there was no error in sustaining the demurrer to this answer. The remaining errors relate to the action of the court in overruling the motion for a new trial. That the verdict is not sustained by sufficient evidence, and is contrary to law are among the causes assigned for a new trial. This appeal must, therefore, be determined upon the evidence.
The appellee testified that he had never been in the cemetery before the date of his injury; that in company with his wife, he went to the cemetery; that the main gate was open, and he entered; that he was not a lot owner, and had no relatives buried there; that his purpose in going was for inspection and pleasure; that he had no knowledge of the rules of the company relating to the admission of visitors; that he went upon the bridge where he was injured in response to a call from his wife to come over on the other side. It is obvious that the controlling question is whether appellee was upon the grounds by the express or implied invitation of appellant, or was there as a mere licensee. If he was there by the invitation of the appellant arising out of a common interest or mutual advantage between him and the appellant, then the latter owed him a duty, and failure to perform that duty would give appellee a right of action, and entitle him to recover for any damages sustained by reason of appellant's negligence. If, on the other hand, appellee was a mere licensee, the appellant owed him no duty, except to protect him from active negligence, which is not in this case, and he could not recover, for the reason that where there is no duty, there is no actionable negligence.
The exact question raised by the admitted facts in this case is one of first impression in Indiana, but we have a number of decisions, which we think bear upon the principle here involved. In Evansville, etc., R. Co. v Griffin (1885), 100 Ind. 221, 50 Am. Rep. 783, the court said: In Thiele v. McManus (1891), 3 Ind.App. 132, 28 N.E. 327, the court, at page 134, said: " Other Indiana cases in harmony with the general principle above announced are, Chicago, etc., R. Co. v. Martin (1903), 31 Ind.App. 308, 65 N.E. 591; Martin v. Louisville, etc., Bridge Co. (1908), 41 Ind.App. 493, 84 N.E. 360; Beaning v. South Bend Electric Co. (1910), 45 Ind.App. 261, 273, 90 N.E. 786; Pittsburgh, etc., R. Co. v. Hall (1910), 46 Ind.App. 219, 224, 90 N.E. 498, 91 N.E. 743; Faris v. Hoberg (1893), 134 Ind. 269, 33 N.E. 1028, 39 Am. St. 261...
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