Bessemer Land & Improvement Co. v. Jenkins

Citation18 So. 565,111 Ala. 135
CourtSupreme Court of Alabama
Decision Date14 November 1895
PartiesBESSEMER LAND & IMPROVEMENT CO. v. JENKINS.

Appeal from circuit court, Jefferson county; James J. Banks, Judge.

Action by James A. Jenkins against the Bessemer Land & Improvement Company. Judgment for plaintiff. Defendant appeals. Reversed.

This was an action of trespass, brought by the appellee, James A Jenkins, against the appellant, the Bessemer Land &amp Improvement Company, to recover damages for the unlawful invasion of a burial place, and exhuming and carrying away the remains of the plaintiff's child without the consent of the plaintiff. In the complaint the burial lot or close upon which the trespass was alleged to have been committed was described as follows: "That the lot or close in which the body of said child was buried is situated in a burying-ground or graveyard near Bessemer in said Jefferson county, which burying ground or graveyard is now included in the land occupied by the Pipe Works Company in or near said Bessemer, which said burying ground or graveyard had been for many years before that time used and occupied as a burying ground or graveyard by the public, having been set apart or dedicated by defendant company as and for a public burying ground or graveyard." The defendant demurred to the complaint on the ground that it did not describe with sufficient accuracy the lot or close which plaintiff alleges was broken into and trespassed upon. The court overruled this demurrer, to which the defendant duly excepted.

The undisputed facts showed that on the 7th day of October, 1888, plaintiff James A. Jenkins had a child buried in a plot of land in or near the town of Bessemer. The burial was conducted by an undertaker named S.E. Jones. Jones charged the plaintiff six dollars for a burial place in the plot of ground, in which the body was buried, which was paid by plaintiff. This alleged sale was verbal and of a burial right in the ground. No specified number of feet was sold, and no lot was designated. Plaintiff testified that no agreement was made for any particular sized lot; that he had no fence around the lot, and that there were no defined limits to the lot. The testimony further showed that the plot of ground in which plaintiff's child was buried had belonged to appellant company; that it was inclosed as a cemetery in 1887 by order of the vice president of said company; that at the first annual meeting of the stockholders of said company, a report was submitted to the stockholders by the president, in which he stated that this piece of ground had been laid off as a cemetery, and that small charges would be made for interments, in order to keep it up. The first interment made in said plot of ground was made in 1889. In 1889, appellant company endeavored to lease said plot of ground to the city of Bessemer, as a cemetery, for a nominal rent, and the officers of said company thought for several months that this lease had been accepted. In 1890 the use of this parcel of ground as a cemetery was discontinued. The ground was occupied by the works of the Howard-Harrison Iron Company, and the bodies interred in it, were disinterred and removed to the Cedar Hill Cemetery. The body of the Jenkins child was disinterred and removed by S.E. Jones, who was employed by defendant to remove the bodies buried in said burial ground. S.E. Jones, a witness for the plaintiff, testified that he removed the body of the plaintiff's child with others in a decent and proper manner, and reinterred it in a decent and proper manner in the Cedar Hill Cemetery, marked the place of its reinterment, and pointed it out to Mrs. Jenkins. The evidence for the plaintiff tended to show that the grave so pointed out was dug into, and that it did not contain the body of the Jenkins child. The evidence of Jones tended to show that he agreed with appellant company to buy a burial lot in the Nineteenth Street Cemetery; that he never paid for it; that it was in this lot that the right to inter his child was sold to Jenkins, and in it, Jenkins' baby was originally interred; that five other infants were interred in the same lot; that all of these infants were removed to Cedar Hill Cemetery, and reinterred, and the same marks put over their graves in the Cedar Hill Cemetery, as had been over them in the Nineteenth Street Cemetery. McNutt, secretary and treasurer of the appellant company, a witness for plaintiff, testified that no lot was ever sold Jones, or anyone else in the Nineteenth Street Cemetery, and no charge was ever made by appellant company for interment therein. The testimony of Jenkins tended to show that no notice was ever given to him of the intended removal of the bodies, and that his first knowledge of the changed use of the Nineteenth street property was in 1891, when he went out to the former graveyard and found it occupied by the pipe works. The evidence showed that during all of this time, plaintiff lived in the town of Bessemer, not much over a mile from the Nineteenth Street Cemetery; that he was engaged in the saloon business and was a subscriber to the Bessemer Weekly, a paper published in said town; that in April, 1890, the publications of said paper contained prominent articles on the cemetery, speaking of the beauty and fitness of Cedar Hill as a cemetery; congratulating the citizens on the fact that it was to be used as a cemetery, stating that the bodies buried in the Nineteenth Street Cemetery were to be removed to the Cedar Hill Cemetery; and that gigantic pipe works were to be erected on the site of the Nineteenth Street Cemetery. It was further shown that the works of the Howard-Harrison Iron Company, so erected, were visible from almost any part of Bessemer; were of considerable magnitude, employing about 700 men, and occupying 8 or 10 months in construction. It was further shown that Cedar Hill was much more desirable as a cemetery than the Nineteenth Street Cemetery; that the appellant company donated 30 acres of ground to the Cedar Hill Cemetery Company; that it contracted for the removal of the bodies from the Nineteenth Street Cemetery to the Cedar Hill Cemetery by a regular undertaker, and in a decent and proper manner. It was further shown that prior to the removal of the bodies from the Nineteenth Street Cemetery to the Cedar Hill Cemetery, the president of the appellant company asked the mayor of Bessemer to ascertain if it would be acceptable to the people generally to remove the bodies to the Cedar Hill Cemetery; that the mayor saw those whom he knew had dead buried there; that there was no way to ascertain exactly who had been buried in the Nineteenth Street Cemetery; that everybody the mayor spoke to was in favor of the removal; that there was considerable dissatisfaction with the Nineteenth Street Cemetery as a burying ground, and on that account the people whom the mayor saw, who had dead buried there, were anxious to have them removed; and that the mayor reported to the president of the appellant company that he thought the people were in favor of the removal of the bodies. The evidence of plaintiff tended to show that he put a head board at his child's grave with his name on it; that he planted cedar trees at the head and foot of the grave and put turf on it. The evidence of Jones tended to show that at the time of the removal there was no head board, no cedar trees, and only some pebbles over the grave.

The rulings of the court upon the evidence, which are reviewed on the present appeal are sufficiently stated in the opinion. Among the charges asked by the court, and to the refusal to give each of which the defendant separately excepted, were the following: (3) "The court charges the jury that if they believe from the evidence in this case that the only possession Jenkins had of the land wherein the body of his child was buried, consisted in the burial of the child, and the subsequent beautification of his grave, and if the jury further believe from the evidence that Jenkins were never in actual possession of any lot or particular piece of ground in which his child's body was buried, then the jury will find a verdict for the defendant." (4) "The court charges the jury that if they believe the evidence in this case, they cannot award the plaintiff damages for the purpose of compensating for any injury to his feelings." (7) "The court charges the jury that they cannot award the plaintiff damages in this case for injuries to his feelings." The other charges and the rulings upon the motion for a new trial are sufficiently stated in the opinion. There was judgment for the plaintiff. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

Walker Percy, for appellant.

Cabaniss & Weakley, for appellee.

HARALSON J.

1. The close alleged to have been broken by defendant, is not described in the complaint with definite particularity, but sufficiently so, to prevent the defendant from being misled or uncertain as to the particular locus in quo of the trespass complained of. If a more accurate description had been made, it would have given the defendant no better information as to the venue of the realty, than that furnished by the complaint. 2 Chit. Pl. 609. The demurrer which questioned the sufficient accuracy of the lot or close which plaintiff alleges defendant broke and trespassed on, was properly overruled.

2. The case was tried on the two pleas of "not guilty," and "that at the time of said alleged trespass, the defendant had the rightful possession of the land on which said trespass is alleged to have been committed." There were other errors assigned on account of the rulings of the court on the pleadings, which have not been insisted on in argument, and will be treated...

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