Codell Const. Co. v. Miller

• Decision Date: 13 May 1947
• Citation: 202 S.W.2d 394,304 Ky. 708
• Parties: CODELL CONST. CO. v. MILLER et al.
• Court: Kentucky Court of Appeals

202 S.W.2d 394

304 Ky. 708

CODELL CONST. CO. v. MILLER et al.

Court of Appeals of Kentucky

May 13, 1947

Appeal from Circuit Court, Lawrence County; Watt M. Prichard, Judge.

Action by Robert Miller and others against the Codell Construction Company for mental pain and anguish caused by defendant's partial destruction of the graves of two deceased ancestors of plaintiffs in recolating a portion of a highway. Judgment for plaintiffs, and defendant appeals.

Reversed.

Howard, Mayo & Combs, of Prestonburg, and Kit C Elswick, of Louisa, for appellant.

C. F See, Jr., of Louisa, for appellees.

DAWSON Justice.

On August 18, 1944, the appellant entered into a contract with the Department of Highways of Kentucky for the reconstruction of approximately six miles of U.S. Highway No. 23 in Lawrence County, under plans and specifications provided therefor by the Department, and under the supervision and direction of the Department's engineers. The plans called for relocation of the highway through the lands of Harkless Slone, and required a cut approximately seventy-five feet deep through a point in his property. Adjacent to the right of way at this point there is located an old graveyard designated in the record as the Miller graveyard. The graves of Robert Miller and Susanne Miller, grandparents of the original plaintiffs in this action, were located at the end of the graveyard nearest the right of way obtained by the Highway Department.

Due to a loose shale formation the dynamite blasts for the cut left a large boulder high up on the bank of the cut in a loose position, so that it created a menace to the safety of traffic on the new highway. The engineers for the Highway Department, and the superintendent for appellant, agreed that this boulder should be removed, and the employees of appellant, under instructions from the engineers for the Highway Department, drilled holes back of the rock for the purpose of blasting it loose with dynamite.

The evidence is conflicting as to how near these holes were to the right of way line, the evidence for the plaintiffs being to the effect that they were about eighteen inches from the line, and the evidence for the defendant showing that they were from two to three feet inside the right of way. These blasts removed the boulder but also caused a cave-in or slide which extended into the Slone property and destroyed a portion of the graves of Robert and Susanne Miller.

This action was originally instituted by several grandchildren of Robert and Susanne Miller who, in their first petition, alleged that they were all the heirs at law of their grandparents. For their cause of action they stated that appellant 'did unlawfully, wrongfully, wantonly and recklessly desecrate the graves * * * without any right or title so to do, and was unlawfully and highhandedly done,' causing them mental pain and anguish to their damage in the sum of $10,000.

Several amended petitions were filed and appellant filed its answer and cross petition against Lawrence County, but the cross petition was abandoned because the county did not provide the right of way for reconstruction of the highway, this duty being on the Highway Department. Paragraph two of the answer set up appellant's contract with the Highway Department and alleged that it had carefully carried out such contract, conforming to all its plans and specifications, and that all work thereunder was done in a careful and correct manner. Paragraph three of the answer pleaded contributory negligence.

The fourth amended petition filed by plaintiffs stated: 'There are a number of heirs of Robert and Susanne Miller who are permitted under the law to share in whatever amount is gained in this action, and that it is impracticable to bring them into court as parties,' and asked leave of court to prosecute the action for the use and benefit of all the heirs at law of Robert and Susanne Miller 'as the common interest in the outcome of this suit.' A demurrer to this last amendment was overruled, and the trial court authorized the plaintiffs to prosecute their cause as a class action on behalf of all the heirs at law of the deceased. The jury returned a verdict for plaintiffs in the sum of $4,500. Judgment for that amount was entered, from which this appeal is taken.

Appellant sets up five grounds for reversal. They are:

1. The case may not be prosecuted as a class action.

2. It was entitled to a directed verdict.

3. The instructions were erroneous.

4. Incompetent evidence was admitted.

5. The damages are excessive.

1. Section 110 of the Civil Code of Practice requires the caption of a pleading to state the names of the parties, and further provides: 'If there be several parties on either side, a statement of the name of the plaintiff, or defendant, first named in the petition, followed by the phrase, '&c.,' shall suffice, except in petitions, cross-petitions and answers which make new parties to a set-off or counter-claim.'

Appellant argues that by reason of this quoted provision of the Civil Code of Practice the failure of plaintiffs to name all other interested parties in their last amended petition makes it clear that plaintiffs elected to proceed as representatives of a class under Section 25 of the Civil Code of Practice, and claims that the cause is not of such nature as it may become the subject of a class action. This contention is based on the claim that the named plaintiffs are not able to fairly represent the unknown heirs and show the nature and extent of their mental pain and anguish (which is the measure of damages in this type of action), and that in the absence of a specific finding of a jury as to the anguish of each, the judgment is erroneous.

Appellant further says that even if such a suit may be properly prosecuted as a class action, the petition is inadequate. The material allegations of the petition, and the last amended petition, are quoted above.

After examining the original and four amended petitions, we have come to the conclusion that while such pleadings are poorly drawn, and do not strictly follow the language of Section 25 of the Civil Code of Practice, they do in substance, when taken together, contain allegations sufficient to support a class action. We think also that in a situation such as this, where some of the heirs of the deceased are unknown, a class action is proper. In North East Coal Co. v. Pickelsimer, 253 Ky. 11, 68 S.W.2d 760, 763, which was a suit for interference with graves, we said: 'It is universally agreed that the right of action of the 'next of kin' is a family right, and daughters and sons or brothers and sisters may maintain one action and not a separate action by each one of them.' This is authority that one action must be maintained for damage to all the heirs at law, where some of the heirs are unknown at the time the action is instituted, and are so numerous that it is impracticable to bring all of them before the court within a reasonable time, one or more of such heirs may sue for the benefit of all. Section 25 Civil Code of Practice. The fact that this type of action is a family right, and only one action may be maintained for the damages sustained, is sufficient to distinguish it from such cases as Union Light, Heat & Power Co. v. Mulligan, 177 Ky. 662, 197 S.W. 1081; Garfein v. Stiglitz, 260 Ky. 430, 86 S.W.2d 155; Commonwealth, for Use and Benefit of Bouteiller v. Ray, 275 Ky. 758, 122 S.W.2d 750, and see 39 Am.Jur., Parties, Section 44, page 917.

2. As indicated above, the petition bases this cause of action on the allegation that the construction company 'did unlawfully, wrongfully, wantonly and recklessly desecrate the graves.' In Louisville Cemetery Ass'n v. Downs, 241 Ky. 773, 45 S.W.2d 5, 6, it is said: 'A recovery may be had by the next of kin or the surviving spouse for an unwarranted interference with the grave of a deceased, or for the inflicting of injury to a corpse, if either be done (a) maliciously, (b) or by gross negligence, (c) or wantonly, i. e., with a reckless disregard of the rights of another * * *.' As claimed by appellant, the petition fails to allege that the interference with the graves was done either maliciously or by gross negligence, but we think the allegations are sufficient to state a cause of action under (c) of the quotation from the above cited case, that is, that the acts were wanton and committed with a reckless disregard of the rights of the next of kin of the deceased. There remains the question of whether there is sufficient evidence to show that the acts of the appellant were wanton or committed recklessly. A brief reference to the evidence is necessary.

There is filed with the record a map, or blueprint, showing the right of way at the point where it...