Goodwin v. Candace, Inc., 35732

• Decision Date: 11 July 1955
• Docket Number: No. 35732,No. 1,35732,1
• Citation: 92 Ga.App. 438,88 S.E.2d 723
• Parties: Heien R. GOODWIN v. CANDACE, Ine. et al
• Court: Georgia Court of Appeals

Page 723

88 S.E.2d 723

92 Ga.App. 438

Heien R. GOODWIN v. CANDACE, Ine. et al.

No. 35732.

Court of Appeals of Georgia, Division No. 1.

July 11, 1955.

Rehearing Denied July 23, 1955.

Syllabus by the Court

The trial judge did not err in sustaining the general demurrer.

Mrs. Helen R. Goodwin, sued in Fulton Superior Court West View Corporation, whose name was later changed to Candace, Inc., and Asa G. Candler, Jr., who later died, and the Fulton National Bank of Atlanta was made a party as his executor.

As originally brought, the petition set out that the plaintiff was the owner of a lot in the West View Cemetery and she attaches a copy of her deed and a copy of the Rules and Regulations referred to in the deed. In substance, the original petition alleged that the defendants did two things which are asserted to be wrongful acts: (1) That the defendants tore up and removed shrubs and flowers planted by the plaintiff on the cemetery lot. (2) That raised mounds which were the only markers of the graves of petitioner's husband and mother were leveled to the ground by defendants. These acts are alleged to have damaged the peace and happiness of the plaintiff.

The pertinent portions of the deed attached to and made a part of plaintiff's petition read:

'IV. All corner post shall be flush with the lawn.

'VI. No vault shall be built entirely or partially above the ground without permission of the directors, and all such must be furnished with shelves, having divisions allowing interments to be separately made, and perpetually sealed, and all monuments, and all parts of vaults above ground shall be of marble, granite or other cut stone.

'VII. The proprietor of each lot shall have the right subject to the approval of the superintendent, to cultivate shrubs and plants in the same; but no tree growing within the lot or border shall be cut down or destroyed without the consent of the directors.

'VIII. If any trees or shrubs situated in any lot shall by their roots or branches become detrimental to adjacent lots or avenues, or unsightly or inconvenient to passengers, it shall be the duty of the directors, or their agents, and they shall have the right to enter the said lot and remove the said trees and shrubs, or such parts thereof as they shall determine to be detrimental unsightly or inconvenient.

'IX. If any monument, effigy or any structure whatever or any inscription be placed in or upon any lot which shall be determined by the directors to be improper or offensive or injurious to the appearance of surrounding lots or grounds, they shall be their duty, to enter upon such lot and remove the said offensive or improper object.

'XI. The directors, from time to time, may lay out or alter such avenues or walks, or make such rules and regulations for the government of the ground as they may deem requisite or proper to promote the general objects of the cemetery.

'XIV. To prevent the excessive and unsightly crowding of tombstones, not more than one monument, grave-stone or mark exceeding 6 inches in height above the surface of the ground, shall be permitted in any entire lot.

'XV. Headstones for graves, or any structure used to mark a grave, must not exceed 6 inches in height above the surface of the ground, and they must not be less than 6 inches nor more than 15 inches thick, and must not exceed 30 inches in width. No steps to lots will be permitted. Stone slabs will not be permitted, either erect or reclining. All stone and marble work, monuments and headstones must be accepted by the superintendent as being in conformity with the foregoing rules before being taken into the cemetery. Lot owners may have planting or other work done on their lot at their expense, upon application to the superintendent. No workmen, other than employees of the cemetery, will be admitted into the cemetery, except for the purpose of setting stonework. No iron or wirework, and no seats or vases will be allowed upon the lots, except by permission of the directors; and when any article made of iron begins to rust, the same shall be removed from the cemetery.

'XVI. Owners of lots are expected to put Georgia marble posts not less than five nor more than eight inches square and two feet deep to mark their lots.

'XVII. The grantee herein has contributed his proportionate part to a trust fund deposited in trust with a trustee, the incomefrom which is to be used for the maintenance and care of the lots in West View Cemetery, including the lot herein described, and shall not hereafter be chargeable with the cost of any such maintenance and care of said lot.'

The defendants filed general and special demurrers to the petition as originally drawn. After it was amended the defendant, Candace, Inc., et al., renewed its demurrers to the petition. The Fulton National Bank did not.

The court sustained the general demurrers to the petition as amended and dismissed the action. To this judgment the plaintiff excepted.

Geo. Starr Peck, Atlanta, for plaintiff in error.

John L. Westmoreland, John L. Westmoreland, Jr., Claude R. Ross, Atlanta, for defendant in error.

QUILLIAN, Judge.

In this opinion the plaintiff in error Mrs. Helen R. Goodwin will be referred to as the plaintiff, and the defendants in error as the defendant when reference is made to them both, when discussing matters pertaining to them separately they will be designated as the defendant cemetery company and the defendant bank.

The Supreme Court in West View Corporation v. Alston, et al., 208 Ga. 122, 65 S.E.2d 406, held that a deed identical with the deed attached as an exhibit and made a part of the petition in this case gave the West View Corporation, predecessor to the defendant Candance, Inc., the right to level grave markers in West View Cemetery flush with the ground and to remove shrubbery and plants from cemetery lots. The question of liability for removal of the flowers and shrubs is clearly precluded by the Supreme...