Blanchard v. Westview Cemetery, Inc.

• Decision Date: 08 October 1974
• Docket Number: Nos. 1,3,No. 49367,2,49367,s. 1
• Citation: 133 Ga.App. 262,211 S.E.2d 135
• Parties: Hazel BLANCHARD v. WESTVIEW CEMETERY, INC
• Court: Georgia Court of Appeals

Page 135

211 S.E.2d 135

133 Ga.App. 262

Hazel BLANCHARD v. WESTVIEW CEMETERY, INC.

No. 49367.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Oct. 8, 1974.

Rehearing Denied Nov. 8, 1974.

Burnside, Dye & Miller, Thomas R. Burnside, Jr., A. Montague Miller, Augusta, Harland, Cashin, Chambers & Parker, Terrill A. Parker, Atlanta, for appellant.

Powell, Goldstein, Frazer & Murphy, Frank Love, Jr., Randall L. Hughes, Atlanta, for appellee.

Syllabus Opinion by the Court

STOLZ, Judge.

The plaintiff widow brought a tort action against the defendant cemetery for the alleged unauthorized and unlawful moving of the body of her late husband and the monument, from one grave site to another. For a statement of the facts in the case, see Blanchard v. Westview Cemetery, 124 Ga.App. 195, 183 S.E.2d 399, in which this court affirmed the grant of a summary judgment for the defendant. On certiorari, the Supreme Court reversed our judgment, Blanchard v. Westview Cemetery, 228 Ga. 461, 186 S.E.2d 92, and we conformed, reversing the trial court. Blanchard v. Westview Cemetery, 125 Ga.App. 322, 187 S.E.2d 551. At the trial of the case, the plaintiff obtained a verdict and judgment for $15,000 actual and $85,000 punitive damages. The trial judge granted the defendant's motion for a new trial on the general and special grounds, from which order, certified for immediate review, the plaintiff appeals.

1. '(T)his court will not disturb the first grant of a new trial on the general grounds where no abuse of discretion by the trial judge appears and the evidence does not demand a verdict and judgment for the plaintiff in any specific amount. Code Ann. § 6-1608; Martin v. Denson, 117 Ga.App. 288, 160 S.E.2d 210; Warren v. Mann, 117 Ga.App. 787, 161 S.E.2d 894; Prosser v Horis A. Ward, Inc., 123 Ga.App. 205, 180 S.E.2d 270.' (Emphasis supplied.) Smith v. Clark, 123 Ga.App. 458(2), 181 S.E.2d 551. 'Where the damages sued for are not liquidated. . . . and rest in the discretion of the jury under the evidence, notwithstanding the evidence may demand a finding that the defendant is liable to the plaintiff in some amount, a verdict in the amount found by the jury is not as a matter of law demanded.' Lawson v. Lawson, 61 Ga.App. 787(2), 7 S.E.2d 603. All of the above cases except Lawson were decided subsequent to the enactment of both the Civil Practice and Appellate Practice Acts, and Lawson was cited with approval in Garrett v. Garrett, 128 Ga.App. 594, 596(3), 197 S.E.2d 739.

Accordingly, although the finding of the defendant's liability in some amount was authorized, if not demanded, by the evidence and by the 'law of the case' established by the Supreme Court's ruling on the former appeal, the verdict in the amount found by the jury was not demanded, because the actual damages (for mental pain and anguish) and punitive damages sought were unliquidated, resting in the discretion of the jury under the evidence. The trial judge has the discretion of granting a new trial on the general grounds, when his mind and conscience disapprove the verdict as rendered, though the verdict is not so large in amount as to carry conviction of bias and prejudice on the part of the jury, and though the case is one in which the only measure of damages is the enlightened conscience of the jury. Smith v. Maddox-Rucker Banking Co., 8 Ga.App. 288(1), 68 S.E. 1092. It is not shown that the trial judge abused his discretion in granting this first new trial on the general grounds.

The appellant expresses apprehension that the trial judge has it in his power to subvert jury verdicts by successive grants of new trials and refusal to certify such grants for immediate appeal. Of course, this result would not likely occur if the judge did so certify. 'In the second grant of a new trial the discretion of the trial court is not so ample as in the first grant thereof, and must be exercised with caution, as the presumption of the legality of such grant weakens upon each concurrent verdict.' Ansley v. Atlantic C.L.R. Co., 86 Ga.App. 152(2), 71 S.E.2d 434. The appellant cannot complain of what might happen in the event of the judge's refusal to certify, since he did certify in the present appeal. The remedy for the hypothetical situation posed would have to be provided by the General Assembly, in view of the requirement of a certificate for immediate review in order to make a judgment granting a new trial appealable. West v. West, 229 Ga. 649, 193 S.E.2d 820 and cits.

2. 'Since the enactment of the act of 1957, approving the amendment to the Rules of Practice & Procedure (Ga.L.1957, p. 224 et seq.), and particularly Sec. 2 thereof (amending former Code § 6-701), the rule applied in Hayes v. Dicks, 95 Ga.App. 11, 96 S.E.2d 627, is no longer applicable in cases of this kind, and it, therefore, becomes necessary to consider the rulings made by the trial judge in granting a new trial on the special grounds if it appears that such questions may recur on another trial.' Dennard v. Styles, 101 Ga.App. 459(2), 114 S.E.2d 317. The provisions of Code Ann. § 6-701(b) (Ga.L.1965, p. 18; 1968, pp. 1072, 1973) are materially identical to the corresponding provisions of former Code § 6-701, which it superseded, the changes made being principally in nomenclature, to conform with the terminology of the Appellate Practice Act of 1965. The General Assembly further indicated its intention to incorporate into the Appellate Practice Act of 1965 the policy recognized in Dennard, supra, by its mandate that said law 'shall be liberally construed so as to bring about a decision on the merits of every case appealed, and to avoid dismissal of any case or refusal to consider any points raised therein, except as may be specifically referred to herein.' (Emphasis supplied.) Code Ann. § 6-905 (Ga.L.1965, pp. 18, 40).

3. The charge complained of in special ground 4, allowing punitive (exemplary) damages for the wrongful moving of the body, was authorized by Judge Evans' dissent in the prior appearance of this case in this court, Blanchard v. Westview Cemetery, 124 Ga.App. 195, supra, p. 211(5), 183 S.E.2d 399, which was adopted (with one qualification) by the Supreme Court. Blanchard v. Westview Cemetery, 228 Ga. 461, 186 S.E.2d 92, supra. Regarding the charge of the term 'wrongfully moved,' the jury was instructed as to the cemetery's rules not authorizing moving of the body to correct an error in the deed, conforming to the dissents of Judges Pannell and Evans, adopted by the Supreme Court, as hereinabove mentioned.

4. The charge complained of in special ground 5, was authorized by Judge Pannell's dissent in Blanchard, 124 Ga.App. 195, supra, p. 201, 183 S.E.2d 399. The 'type of error' to which the trial judge was referring is apparent from the phrase which follows it, i.e., 'by moving the body from the lot actually purchased to a lot not purchased, but described by error in the deed.'

5. Concerning special ground 6, the charge allowing exemplary damages was authorized under Judge Evans' dissent in Blanchard, 124 Ga.App. 195, supra, p. 211, 183 S.E.2d 399, and cits., and Code § 105-2003. The trial judge withdrew his charge as to physical damages, leaving with the jury the issue of damages for wounded feelings, etc., hence no double damages were involved. See McLaughlin v. State, 132 Ga.App. 88(2), 207 S.E.2d 629.

6. The trial judge did not err in submitting the issue of the defendant's good or bad faith to the jury, as complained of in special ground 7. The jury could find bad faith from the evidence that the defendant moved the body without the authority of the contract, without written (or other) notice to the plaintiff or her family (although a letter would have been forwarded to her new address, according to the evidence), and without applying for disinterment and reinterment permit (as to this, see Headnote 8, below).

7. The charge complained of in special ground 8-which interjected the issue of physical damages, which was later removed by a recharge of the jury-is not ruled on because it will not likely recur in a subsequent trial of the case.

8. The trial judge did not err, as contended by special ground 9, in refusing to charge the jury that 'under the laws of this state that govern this action, no permit was required for disinterment and reinterment within the same cemetery.' For the reasons adequately stated in the dissents in Blanchard, 124 Ga.App. 195, supra, pp. 202 and 204, et seq., 183 S.E.2d 399, Code Ann. § 88-1717 (Ga.L.1964, pp. 499, 591) does require a permit for this purpose. Although the Supreme Court did not pass on this question in Blanchard, 228 Ga. 461, 186 S.E.2d 92, supra, it was not necessary to do so, since it found that there were genuine issues of material fact other than this, which were sufficient to make erroneous the grant of the motion for summary judgment for the defendant.

9. Special grounds 10 and 11 complain of the contended excessiveness of the verdict for actual and exemplary damages. Since the case is to be tried again and the amount of the verdict, if any, may be different, and since excessiveness of the verdict is within the scope of the general grounds, as was held in Division 1 hereinabove, we cannot rule on this issue at this time.

10. The plaintiff enumerates as error the trial judge's sustaining of defense counsel's objection to the following portion of his closing argument: 'Well, we come to the issue of damages here, and as I have stated to you, we are talking about two kinds of damages. Why did we sue for punitive damages and damages for the compensation of this widow for injury to her peace, feelings and happiness? We ask in this complaint for $250,000 punitive damages and $25,000 damages for injury to her peace, feelings and happiness. The purpose of punitive damages, as His Honor will charge you, is to deter the wrongdoer. Well, how do you deter a corporation that is worth by their own testimony $66,000,000? Mr. Hughes:...