Bash v. Fir Grove Cemeteries, Co.

• Decision Date: 20 June 1978
• Citation: 282 Or. 677,581 P.2d 75
• Parties: Marie F. BASH, Appellant, v. FIR GROVE CEMETERIES, CO., an Oregon Corporation, Respondent. TC 76-0026; SC 25121.
• Court: Oregon Supreme Court

Page 75

581 P.2d 75

282 Or. 677

Marie F. BASH, Appellant, v. FIR GROVE CEMETERIES, CO., an Oregon Corporation, Respondent.

TC 76-0026; SC 25121.

Supreme Court of Oregon, Department 2.

Argued and Submitted March 9, 1978.

Decided June 20, 1978.

E. Scott Lawlor, Eugene, argued the cause for appellant. With him on the brief was McCoy & Lawlor, Eugene.

Randall Bryson, Eugene, argued the cause for respondent. With him on the brief were Calkins & Calkins and Bryson & Bryson, Eugene.

Before DENECKE, C. J., TONGUE and LINDE, JJ., and THORNTON, J. Pro Tem.

THORNTON, Justice Pro Tem.

This case involves an action brought by plaintiff against defendant cemetery corporation to recover damages for the unauthorized handling of her husband's remains. She appeals from an adverse judgment entered after a jury rendered a verdict for the defendant. She assigns as error the court's instruction to the effect that disinterments could be performed by the cemetery where the spouse has by her statements or conduct led the cemetery to conclude that it had the right to disinter remains without the written consent of the spouse or without court order. Three issues are raised on appeal: (1) Are the provisions of ORS 97.220(1) ¹ mandatory or permissive; (2) if ORS 97.220(1) is mandatory, is the requirement for written consent satisfied by a signed contract incorporating by reference the cemetery's rules and regulations which permit the unauthorized movement of remains; and (3) was plaintiff estopped from claiming she did not consent to the disinterment of her husband's remains.

Plaintiff's husband, Robert P. Bash, died on April 4, 1975. On April 5, 1975, plaintiff's son, on plaintiff's behalf, purchased from defendant two cemetery lots, lot 7 for plaintiff's late husband and lot 9 for plaintiff. ² The two lots were separated by lot 8 in which a great grandchild who had died two years earlier was supposedly buried.

Sometime after the burial of plaintiff's husband, defendant discovered that the great grandchild had been mistakenly buried in lot 7 and that plaintiff's decedent had been buried in lot 6, which was owned by unrelated third parties. The manager of the cemetery, Wallace Robertson, informed plaintiff of the situation when plaintiff and her daughter were at the gravesite and indicated to them that the body would have to be moved. Robertson claimed, and plaintiff denied, that plaintiff at that time gave oral permission for the disinterment and relocation. Robertson also testified that later on the same day plaintiff's daughter called him and told him to delay the disinterment for a few days, so that the family could think it over. After waiting for two to three weeks, and hearing nothing further, Robertson had the decedent's remains moved to lot 8.

Plaintiff contends that the trial court erred in giving the following instruction:

"You are instructed that Oregon statute provides the authority for cemeteries to make their own rules and regulations for the regulation of their cemeteries.

"You are instructed that while rules and regulations may be made, they are not binding upon a party with regard to disinterment and movement of a deceased unless through agreement or otherwise such a party has consented to the disinterment and movement of a deceased.

"Defendant has alleged an affirmative defense. If you find by a preponderance of the evidence that after plaintiff was informed of the appropriate movement of her husband's remains she, by her statements or conduct towards the officer, led him to reasonably conclude that he had the right to remove the remains, and further, that defendant's officer relied upon such statements and conduct in moving the remains, then plaintiff would be bound by such statements or conduct and could not recover based upon her claim of unauthorized handling of remains."

The challenged instruction is really a combination of two instructions; one requested by the plaintiff and the other by defendant. The first part of the instruction relating to the effect of a cemetery's rules and regulations is an altered version of an instruction requested by plaintiff, and the second part relating to defendant's affirmative defense was taken from a defendant's requested instruction.

Defendant contends that plaintiff failed to properly except to the two instructions at trial and therefore cannot contest them on appeal. In order to determine whether defendant's claim is valid, it is necessary to recount the procedures by which the instructions were given and the exceptions were taken.

In this case the trial court, after an off-the-record discussion of instructions, instructed the jury prior to argument. After so instructing, the judge permitted the parties to take exceptions, although he indicated that they would have another opportunity to take exceptions after the final charge to the jury. Plaintiff's attorney made the following exceptions:

"THE COURT: * * * So, would you like to take exceptions at this particular time?

"MR. LAWLOR (Plaintiff's counsel): Yes, to plaintiff's requested number six, a portion of it that was given. I'll read the full thing in the way I had it proposed.

"THE COURT: Very well.

"MR. LAWLOR: 'You are instructed that Oregon law provides the authority for cemeteries to make their own rules and regulations for the regulation of their cemeteries. You are instructed that cemeteries may not make their own rules and regulations concerning disinterments. Disinterments are covered by the statutes of the State of Oregon as stated earlier.'

"I believe the Court did not give the final two sentences of that instruction.

"THE COURT: That is correct, and in its place I put in the sentence 'you are instructed although rules and regulations may be made, they are not binding upon a party with regard to disinterment and movement of a deceased unless through agreement or otherwise such a party has consented to the disinterment and movement of a deceased.

"MR. LAWLOR: All right. Concerning defendant's requested instruction number three on the affirmative defense, I believe the Court read 'that after plaintiff was informed of the proposed movement of her husband's remains, she or her attorney (sic)' or, 'she, by her statements or conduct.' I think the Court included the word 'conduct' in there. We had earlier talked about that, and it's my objection that by using the word 'conduct' there, and later on in that particular instruction, you are, in effect, instructing the jury that not only can a defendant, or the plaintiff in this case give up her rights as protected by law concerning the rights to disinterment by her consent. She can also do it by conduct, and that is a little bit different than the other instructions, and I think it could be confusing to the jury.

"THE COURT: Perhaps the word should have been 'and' rather than 'or'.

"MR. LAWLOR: I think 'conduct' should have been stricken."

The following day immediately prior to closing argument further discussion was had in regard to instructions, in particular defendant's exception to an instruction given by the trial court. After discussing that matter the following exchange took place:

"THE COURT: * * * Anything else we need to take up prior to?

"MR. LAWLOR: There is one other matter I would like to bring up, and it was an oversight on my part. I would like to move to strike all the plaintiff's (sic) second cause of action based on my theory of the case I mean, defendant's first affirmative defense based upon my theory of the case that ORS 97.220 strictly applies, and that statute has to be followed, and we had talked in chambers concerning the instructions, but I would formally at this time make that motion, that all of the affirmative defense be stricken.

"THE COURT: And I would deny that particular motion.

"Again, it is difficult to ascertain exactly what the effect of the particular statute is. It did appear to be of a permissive nature. The question is the reasonableness as to whether, in fact, it can be modified by the circumstances, and that is the direction that I have taken. Now, whether that is a correct interpretation certainly remains to be seen."

No further exceptions were taken by the plaintiff.

Defendant argues that the second exchange between the court and the plaintiff's counsel quoted above relates solely to the motion to strike, and cannot be relied upon to expand the grounds upon which plaintiff based his exception to the challenged instruction. We disagree. The purpose of requiring specific exceptions is to insure that the trial court is apprised of all of a party's contentions and the reasons therefor so that the trial judge can make an informed decision. Kinney v. General Construction Co., 248 Or. 500, 503, 435 P.2d 297 (1968). The decision on plaintiff's motion to strike defendant's affirmative defense would affect the content of the instructions to the jury on that issue. Therefore it is clear that the trial court was given "ample opportunity to correct the error before the jury considered the case." Boner v. Matthews, 225 Or. 500, 502, 358 P.2d 285, 286 (1961). We conclude that the trial court, in this instance, was adequately informed that plaintiff's motion related to instructions as well, and that plaintiff preserved his exception on the grounds now argued, for appeal.

Plaintiff contends that ORS 97.220(1) is mandatory and provides the only means by which a cemetery can effect the disposition of interred bodies. Defendant appears to argue that the statute does not provide an exclusive listing of methods whereby human remains may be disinterred. In support of its position defendant claims that use of the words "may be removed" indicates a legislative intent to make the provisions of ORS 97.220(1) permissive and nonexclusive.

The law recognizes, independent of statute, a legal right in the surviving spouse to have the remains of the deceased undisturbed unless such disinterment is authorized by the surviving...