Golston v. Lincoln Cemetery, Inc., s. KCD
| Decision Date | 02 October 1978 |
| Docket Number | Nos. KCD,s. KCD |
| Citation | 573 S.W.2d 700 |
| Parties | Nathaniel GOLSTON (and) Reatha Golston, minors, by their next friend and aunt, Gladys J. Martin, (and) Billy J. Golston (and) Gladys J. Martin, Plaintiffs- Respondents, v. LINCOLN CEMETERY, INC., a corporation, (and) Lawrence A. Jones Mortuary, Inc., d/b/a Lawrence A. Jones & Sons Funeral Chapel, (and) Douglas Investment Company f/k/a Lincoln Investment Company, Defendants-Appellants. Gladys J. MARTIN, Plaintiff-Appellant, v. LAWRENCE A. JONES MORTUARY, INC., d/b/a Lawrence A. Jones & Sons Funeral Chapel, and Douglas Investment Company, f/k/a Lincoln Investment Company, Defendants-Respondents. 29015, KCD 29016 and KCD 29283. |
| Court | Missouri Court of Appeals |
Gordon N. Myerson and Morris, Larson, King, Stamper & Bold, Kansas City, Mo., for Gladys J. Martin, appellant and Nathaniel Golston, Billy Golston and Reatha Golston, respondents.
Thos. J. Conway, Popham, Popham, Conway, Sweeny & Fremont, P. C., David M. Harding, Terrell, Van Osdol & Magruder, Kansas City, for Lawrence A. Jones Mortuary, Inc.
Before WELBORN, Special Judge, Presiding, PRITCHARD, J., and HIGGINS, Special Judge.
Action (Circuit Court 767,511) by children and sister of Eva Jane Parker, deceased, for actual and punitive damages for improper burial of decedent. Plaintiffs dismissed as against Lincoln Cemetery, Inc.; and, upon defendants' motion, the court dismissed the aunt as a plaintiff without prejudice, in favor of the Golston children as closest next of kin. The children each had a verdict for $15,000 actual damages against the undertaker and the cemetery, and $2,000 punitive damages against the undertaker and $10,000 punitive damages against the cemetery. Upon remittitur as ordered by the court, judgment was entered for each child for $6,000 actual damages against both defendants, and which let stand their awards of punitive damages.
Action (Circuit Court CV76-2978-F), subsequently instituted by the sister of Eva Jane Parker, deceased, against the undertaker and cemetery for actual and punitive damages for improper burial of decedent, was dismissed on motions of defendants.
Appeal 29,015 by Douglas Investment Company, the cemetery, consolidated with appeal 29,016 by Lawrence A. Jones Mortuary, Inc., the undertaker, both from the judgment in 767,511, and appeal 29,283 by Gladys J. Martin from dismissal of her petition in CV76-2978-F. Upon joint motion of plaintiffs Golston and defendant Douglas Investment Company, which advised that the judgment in 767,511 "against Douglas Investment Company has been fully satisfied by the payment of a sum certain plus the agreement of Douglas Investment Company to dismiss its Appeal, No. 29015 and plus the agreement of plaintiff Gladys Martin to dismiss her Appeal No. 29283 as to defendant Douglas Investment Company only," and requested dismissal accordingly, this court dismissed appeal 29,015 of Douglas Investment Company and appeal 29,283 of Gladys Martin as against Douglas Investment Company. The issues thus remaining go to Jones's liability to plaintiffs Golston, 29,016, and the dismissal of Gladys Martin's petition as against Jones, 29,283. 29,016 affirmed; 29,283 reversed and remanded.
On November 5, 1971, Eva Jane Parker, mother of Nathaniel, Reatha, and Billy J. Golston, minors, died in Kansas City, Missouri. Her sister, Gladys J. Martin, and her son Billy made arrangements for burial of Mrs. Parker with Lawrence A. Jones Mortuary, Inc., d/b/a Lawrence A. Jones & Sons Funeral Chapel. The arrangements were embodied in a memorandum dated November 6, 1971, executed by Carolyn A. Carruthers on behalf of the undertaker and Billy J. Golston and his aunt, Gladys J. Martin on behalf of the family. The arrangements covered a funeral service for Mrs. Parker and included by item and price a casket, two-piece sectional concrete "vault box liner urn," and grave in Lincoln Cemetery, for a total price of $1,019.77. The memorandum also recited the availability of Social Security benefits and a John Hancock Insurance policy as credits with which to pay for the arrangements.
As part of the arrangements, Billy and Mrs. Martin were taken to Lincoln Cemetery to select a grave site. They chose a site, the cost of which was included in the memorandum.
On November 8, 1971, Jones ordered a two-piece box from Wilbert Vault Company for delivery to Lincoln Cemetery for placement at the direction of cemetery personnel for the burial of Mrs. Parker on November 10, 1971. Wilbert's records indicated that the box was delivered to Lincoln Cemetery and that it was placed in a grave as indicated by cemetery personnel November 10, 1971. Cemetery records indicated that three graves were opened November 10, 1971. Jones paid Wilbert for the box charged in the arrangements. Jones does not look into graves to check presence of burial vaults but depends upon the vault man to deliver them and the cemetery man to direct their placement. Graves are dug by cemetery employees.
A form, "Funeral Arrangements," prepared by Jones, showed that Mrs. Parker was survived by five brothers and two sisters in addition to her three children and sister Gladys.
On November 10, 1971, funeral services for Mrs. Parker were conducted at Jones's chapel and at the selected grave site. The grave was covered by a carpet of artificial turf and a lowering device. Upon completion of the service, the family members were returned by cars to the funeral chapel.
The insurance policy was payable to Billy J. Golston. Gladys Martin subsequently procured a part of the proceeds of the policy and used it to pay the balance remaining on the price of the funeral after application of the Social Security benefit.
Mrs. Martin also ordered a headstone with delivery delayed at least six weeks before placement on the new grave. On February 20, 1972, Mrs. Martin, accompanied by her nephew, deceased's son Nathaniel Golston, and her brother Dorsey Golston, went to Mrs. Parker's grave site to pay respects and to see if the headstone had been placed. She saw an open hole in the grave site, and could see her sister's body, particularly the left side of her face, with dirt on it. She could also see a hand from about the waist up. Subsequent investigation determined that the grave was, at its deepest depth, thirty-one inches. Heavy machinery driven over the grave had struck the top of the casket, thus exposing the body. There was evidence of erosion; there was no vault. Lawrence Jones conceded Mrs. Parker had not been buried in the box or vault ordered for her, and its location was never discovered.
Mrs. Martin was upset by her discovery and called the police who referred her to the sheriff's office. Deputy Kane visited the grave site and viewed the exposed body. Charles Golston, a brother of Mrs. Parker, was then present, and Mrs. Martin drove a sister who expressed disbelief to the grave site to see the exposed body. Mrs. Martin also called lawyers and the Channel 9 Action Reporter. A number of still and moving pictures were taken showing, among other things, the condition of the grave and persons present. The body was subsequently disinterred by Watkins Brothers Funeral Home and reburied in the original casket at Blue Ridge Cemetery.
Billy J. Golston was present for the funeral November 10, 1971; he was with the Air Force in Korea in February, 1972. Upon learning of the discovery, disinterment and reburial, he felt bad and took some time off from his duties. Nathaniel Golston was present on both occasions and the incidents in February, 1972, caused him to feel bad and upset. He has thought about them since. He stayed in the car at the reburial. Reatha Golston, a teenager, did not testify. She lived with Mrs. Martin after her mother died, and Mrs. Martin stated that she, as herself, Billy, and Nathaniel, was up late at night and could not sleep as a result of these incidents.
The jury was directed on behalf of each of the plaintiffs by Instructions 3, 4, and 5, in form MAI 17.01 and 19.01 modified:
The jury was instructed as to actual damages by Instruction 11, in form MAI 4.01.
The jury was instructed as to punitive damages by Instruction No. 12, in form MAI 10.03 modified:
Appellant Jones contends that it should have had a directed verdict, asserting that plaintiffs (Golston) failed to adduce evidence to support a claim against it for damages for mental anguish in absence of proof of wanton, willful or malicious acts by Jones; that the submission, Instructions 3, 4, and 5, was erroneous in permitting the jury to award compensatory damages for mental suffering with physical injury even...
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