Fergerson v. Utilities Elkhorn Coal Co.

• Decision Date: 28 February 1958
• Citation: 313 S.W.2d 395
• Parties: Louise FERGERSON, Appellant, v. UTILITIES ELKHORN COAL COMPANY, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 395

313 S.W.2d 395

Louise FERGERSON, Appellant, v. UTILITIES ELKHORN COAL COMPANY, Appellee.

Court of Appeals of Kentucky.

Feb. 28, 1958.

Rehearing Denied June 13, 1958.

Jack T. Page, Charles E. Lowe, Pikeville, for appellant.

Hobson & Scott, Pikeville, for appellee.

MOREMEN, Chief Justice.

Appellant, Louise Fergerson, mother and next of kin of Jean and Otis Fergerson who died in early infancy, sought in the Pike Circuit Court to recover damages because of the desecration of the infants' graves by appellee, Utilities Elkhorn Coal Company. She also sought an injunction which would require appellee to remove slate and other mining refuse--which had been dumped on the graves--so that her right of visitation could be exercised.

The complaint, as amended, averred that her infant children had been buried in a public dedicated community cemetery near Esco on Shelby Creek in Pike County and charged that appellee, as an incident to its coal mining operation had, with gross negligence, wrongfully, maliciously and with such recklessness as to indicate a wanton disregard for her rights, caused slate, bone, shale and other mining refuse to be dumped upon the graves of her children so that she was unable to visit the burial site. She alleged that she had been caused great mental pain and suffering and requested punitive damages. A mandatory injunction requiring appellee to restore the graves to a normal and decent condition was requested.

After appellee pled various statutes of limitation and matters of laches and estoppel, it moved for a summary judgment, which was granted by the court.

The subject of a person's right to recover in cases of this nature was summarized by this court in Louisville Cemetery Association v. Downs, 241 Ky. 773, 45 S.W.2d 5, 6, where it was 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 infliction of an 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 (Louisville & N. R. Co. v. Hull, 113 Ky. 561, 68 S.W. 433, 24 Ky.Law Rep. 375, 57 L.R.A. 771), (d) or for an unlawful or secret disinterment or displacement thereof (Ky. St. §§ 466 and 1335), or (e) an action of trespass quare clausum fregit may be maintained by the holder of the title, or the person in possession of, the lot on which a grave is located (Cooley on Torts 239, 240; 1st Blackstone's Commentaries 429; Hook v. Joyce, 94 Ky. 450, 22 S.W. 651, 15 Ky.Law Rep. 337, 21 L.R.A. 96), or (f) for the removal of a body from one grave to another by those in authority and control of the cemetery or burial ground, without notice, or an opportunity, to him who in law is entitled to be present, if he desires, before its removal (citing cases).'

However in North East Coal Company v. Pickelsimer, 253 Ky. 11, 68 S.W.2d 760, this court seems to have limited the authority of that case to the extent that it would not permit recovery of compensatory damages for mental anguish in every case involving a corpse or a grave.

In the later case of Codell Construction Company v. Miller, 304 Ky. 708, 202 S.W.2d 394, 172 A.L.R. 546, where a construction company might have anticipated damages to graves by the use of dynamite in the course of its construction work, the court held that the evidence was sufficient to show that the acts of the construction company were a reckless disregard of the plaintiffs' rights and entitled them to a recovery for mental anguish. See also: City of Hopkinsville v. Burchett, Ky., 254 S.W.2d 333.

It may be seen under item (e) in the Downs opinion above quoted that an action of trespass may also be maintained under certain conditions. That statement is supported by some authority. In Brunton v. Roberts, 265 Ky. 569, 97 S.W.2d 413, 415, 107 A.L.R. 1289, we said this:

'Ordinarily, the purchaser of a lot in a cemetery acquires only an easement or license to make interments therein exclusive of others. This right of sepulture is a property right, subject to reasonable rules and regulations governing the cemetery, and, of course, to be controlled by the state in the exercise of its police powers. When that right is violated, the owner is as certainly entitled to all the remedies which the law affords as if he owned a fee simple.'

We have had difficulty dividing the cases into the groups which permit recovery for mental anguish for the wrong committed and those which permit recovery under the theory that trespass to land has been committed. It is difficult under the pleadings in this case to determine under which theory appellant seeks to recover.

The circuit court believed that the action was based on both theories because upon submission on motion for summary judgment, it was held that appellant knew of the condition in 1945, and since suit was not commenced until December 17, 1952, it was barred by the statute of limitations which ordinarily applies to actions to recover damages for trespass to realty. He held that insofar as appellant sought damages for injury to her feelings, the one-year statute applied, KRS 413.140, and summary judgment was entered for appellee.

It is not apparent from the complaint which path appellant elected to follow, but it does contain a clear statement of its nature and under our rules the fact that a pleader does not specifically ask for the type of relief he wants does not always bar recovery. It was pointed out in Clay, CR 8.01, under note 4, that a complaint is not necessarily insufficient if the plaintiff fails to ask for proper relief, the question being whether his statement of claim shows him to be entitled to any relief the court may properly grant, and CR 54.03 provides: 'Every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.' (This does not apply to default judgment.)

So we are of opinion that we should treat appellant's complaint as did the trial court and consider both theories of recovery. We believe that portion which deals with the injury to appellant's feelings is barred by the statute of limitations. It was held in Resthaven Memorial Cemetery v. Volk, 286 Ky. 291, 150 S.W.2d 908, that such actions to recover for mental pain and anguish were barred by the five-year statute of limitations, KRS 413.120, rather than the one-year limitation statute. Appellant is barred because she discovered the condition of the graves in 1945 and did not commence action until 1952.

In connection with the trespass theory we have difficulty in deciding whether the claim is barred by the statute of limitations and our trouble arises, we believe, because the facts of this case have not been fully developed. As we have indicated, the complaint was dismissed upon motion for summary judgment. It was developed by affidavit and by deposition of appellant on discovery that a predecessor of appellee company had set aside ground for burial purposes. Appellee knew of the cemetery for white persons on the right-hand side of a branch ascending, but did not know of the cemetery for colored people on the left-hand side. However, this parcel had been surrounded by a wire fence and the various graves marked by rough stones. Appellant testified that there were other graves there, perhaps as many as fifty. She visited the graves in 1940 and found that the company was covering some of the nearby area with slate and other refuse. In 1945 she visited the plot and found that the graves and the fence...