Blanchard v. Westview Cemetery, Inc.

• Citation: 124 Ga.App. 195,183 S.E.2d 399
• Decision Date: 08 June 1971
• Docket Number: 2,Nos. 1,No. 45936,3,45936,s. 1
• Parties: Hazel BLANCHARD v. WESTVIEW CEMETERY, INC
• Court: United States Court of Appeals (Georgia)

Page 399

183 S.E.2d 399

124 Ga.App. 195

Hazel BLANCHARD v. WESTVIEW CEMETERY, INC.

No. 45936.

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

June 8, 1971.

Rehearing Denied July 9, 1971.

Certiorari Granted Sept. 8, 1971.

Sanders, Hester, Holley, Ashmore & Boozer, Thomas R. Burnside, Jr., A. Montague Miller, Fred K. Harvey, Jr., Augusta, for appellant.

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

Syllabus Opinion by the Court

JORDAN, Presiding Judge.

The alleged claim of the plaintiff, Mrs. Hazel Blanchard, is predicated on an intentional tort in moving the body of her late husband, Paul Blanchard, and the monument, from one grave site to another. She appeals from the grant of a summary judgment for the defendant.

Paul Blanchard died on August 24, 1968. The next day Mrs. Blanchard, accompanied by a representative of the defendant, selected a grave site, and agreed to purchase what she believed to be the site selected and another, described in the written contract as Lot 350, Section 70, Sites 1 and 2. On August 27, 1968, the body was interred in the cemetery in a site which was satisfactory to Mrs. Blanchard, and which she thought was the site she had selected and had contracted to purchase. In addition to the purchase price of the lot Mrs. Blanchard paid an additional fee for opening and closing the grave.

About September, 1969, an employee of the defendant determined that the grave was in fact located on Lot 344, Section 70, Site 1, a grave site immediately adjacent to Lot 350. Upon being made aware of the discrepancy between the recorded burial site and the actual burial site the defendant's general manager attempted to reach Mrs. Blanchard on one occasion by telephone, but he was unsuccessful. In August, 1969, she had moved to Augusta, but had not informed Westview of her change of address.

Without any further effort to contact Mrs. Blanchard, the general manager then directed the transfer to a grave site one grave site nearer to a road, a distance of some three feet, so that its new location corresponded in fact to the records. This transfer, including the monument, was accomplished without notice to Mrs. Blanchard. When Mrs. Blanchard visited the cemetery and discovered the move she telephoned the office of the cemetery, and was informed by an employee, who examined the contract and interment request and noticed that the lot number on both was the same, that her late husband was buried in the correct location. This employee was unaware of the actual transfer from one site to another. When this employee informed the manager that Mrs. Blanchard had inquired about the grave, he informed Mrs. Blanchard by letter that her late husband was buried in the correct location, but omitted any reference to the transfer.

The contract for the purchase of the lot contains the following: 'It is hereby agreed and understood by and between the parties hereto that said burial space(s) are bought subject to the rules of the seller, and the buyer expressly agrees to be bound by all such rules and all amendments and new rules hereafter adopted.'

Included among the rules and regulations of the cemetery are the following:

'All interments, disinterments and removals must be made at such time, in such manner and subject to the payment of such charges as fixed by the cemetery management. Rule 3-13.'

'The cemetery reserves, and shall have, the right to correct any errors that may be made by it either in making interments, disinterments or removals, or in the description, transfer, or conveyance of any interment property, either by cancelling such conveyance and substituting and conveying in lieu thereof other interment property of equal value and similar location as far as possible, or as may be selected by the cemetery, or, in the sole discretion of the cemetery, by refunding the amount of money paid on account of said purchase. In the event the error shall involve the interment of the remains of any person in such property, the cemetery reserves and shall have, the right to remove and re-inter the remains to such other property of equal value and similar location as may be substituted and conveyed in lieu thereof. The cemetery shall also have the right to correct any errors made by placing an improper inscription, including an incorrect name or date, either on the memorial or on the container for cremated remains. The cemetery shall not be liable in damages for any error so made.' Rule 3-H.

'It shall be the duty of the lot owner to notify the cemetery of any change in his Post Office address. Notice sent to a lot owner at the last address on file in the office of the cemetery shall be considered sufficient and proper legal notification for all purposes.' Rule 15-A.

1. The making of an agreement on Sunday, August 25, 1968, for the purchase of a lot in which to bury a spouse who died the previous Saturday is, in our opinion, a work of necessity excepted from the statutory prohibition (former Code § 26-6905, now Code Ann. § 26-9908) applicable to work on Sunday. See the recent case of Prosser v. Horis A. Ward, Inc., 123 Ga.App. 205, 180 S.E.2d 170.

2. Regardless of whether Mrs. Blanchard ever received or examined the rules and regulations of the cemetery they are a part of the contract of purchase which she signed. The fact that the final sentence of Rule 3-H is an exculpatory clause purporting to relieve the cemetery from liability has no real relevancy in disposing of the present case, for in our opinion the action of the cemetery in moving the grave to a site corresponding to the record of the site purchased and the site designated for interment is clearly authorized by the provisions of Rule 3-H preceding the exculpatory clause. Being an action authorized under and pursuant to the contract which is shown to have been executed in a reasonable manner in good faith, it cannot be termed wrongful in any sense of the word to give rise to a claim based on an intentional tort on account of the fact that the transfer was accomplished without the knowledge or approval of the plaintiff. If there be a loss by reason of the emotional impact on the plaintiff, this is clearly a case of damnum absque injuria.

In view of the contract, and the authority of the cemetery under its rules and regulations which were a part of the contract, we consider it immaterial that a genuine issue of fact may exist in respect to the manner in which the error arose, i.e., whether the contract and interment record represent the site actually selected by the plaintiff, or whether the original place of interment is the site selected and which the plaintiff intended to purchase. See West View Corporation v. Alston, 208 Ga. 122, 65 S.E.2d 406; Goodwin v. Candace, Inc., 92 Ga.App. 438, 88 S.E.2d 723.

3. It is contended that a permit is not required for disinterment and reinterment within the same cemetery, but that such permit is required only when a body is removed from one cemetery to another where transit is involved. This seems to be the clear import of Code Ann. § 88-1717(e) when read in its entirety, the second sentence requiring that 'such permit' shall be issued by the registrar in the district where the body was 'originally interred.' But whether or not such a permit was required, such could not within itself give rise to a cause of action or to a claim. The mere violation of a statute, even though it be penal, cannot be relied upon as actionable negligence, unless such violation is the proximate cause of the injury. See Gulf Oil Corporation v. Stanfield, 213 Ga. 436, 99 S.E.2d 209, for a citation of cases supporting this principle of law.

Judgment affirmed.

BELL, C.J., HALL, P.J., and EBERHARDT, DEEN and QUILLIAN, JJ., concur.

PANNELL, WHITMAN and EVANS, JJ., dissent.

PANNELL, Judge (dissenting).

Upon examination of the record in this case and the law in reference thereto, I feel constrained to join Judge Evans and dissent from the majority ruling in the case. The majority affirms the grant of a summary judgment for the defendant on the theory that the evidence demands a finding plaintiff consented to the alleged tort because of the rules and regulations of the defendant cemetery which were a part of the contract. I dissent based upon substantially three propositions, one of which was not passed upon by the majority.

1. There is evidence which authorizes a finding that the interment lot selected, bought and paid for, was the lot on which plaintiff's husband was originally buried before his alleged unauthorized disinterment by the defendant, and that the error was one of description in the deed and not an error of interment; and the contract between the parties wherein the plaintiff consented to disinterment in order to correct errors does not give permission to correct this type of error by moving the body from the lot actually purchased to a lot not purchased, but one described by error in the deed.

The deposition of Paul C. Blanchard, taken by defendant, reads in part: 'Q. As I understand it, there was some misunderstanding about the cemetery lots, is that correct? A. As far as I'm concerned there wasn't any misunderstanding, Mr. Hull. We went out to the cemetery the day following my father's death, on Sunday, my mother and myself, and I think there were some other members of the family, but I don't recall. At that time, the time we arrived at the cemetery, we spoke with the lady, I believe her name is Mrs. McWilliams, and informed her that we wanted to buy a cemetery lot. * * * Q. May I interrupt you-were you talking about getting a family section? A. We were talking about getting a two-grave lot. Q. Just for your mother and daddy? A. That's right, because the rest of the family was spread out around. She suggested this section-I believe it was Section Seventy, I may be mistaken on the number-and with her in the car we rode around to this section. It was a new section,...