Hale v. Hale, 15101.

CourtSupreme Court of Georgia
Citation33 S.E.2d 441,199 Ga. 150
Docket Number15101.
PartiesHALE v. HALE et al.
Decision Date07 March 1945

33 S.E.2d 441

199 Ga. 150

HALE et al.

No. 15101.

Supreme Court of Georgia

March 7, 1945

[33 S.E.2d 442]

Syllabus by the Court.

1. The court did not err in admitting testimony that the husband of one of the petitioners contributed to a fund used by a church in purchasing land for cemetery purposes, over the objection that the evidence was immaterial, illegal, prejudicial, and that the church records would be [199 Ga. 151] the highest and best evidence; since, on the question of such contribution, the act itself rather than the manner of payment was the essential fact, and on that question either oral testimony or a writing, to show the same, would be admissible. Nor was it error, in the absence of any showing that the church kept a record on such matters, to permit the witness to testify that a lot was set apart to her husband.

2. In a suit to recover damages for interfering with the possession of a cemetery lot, where the petitioners' evidence would have authorized a finding that there had been such a reckless disregard of their rights as to be quivalent to an intentional violation of them, the court did not err in charging the jury on the question of exemplary damages.

3. The evidence was sufficient to support the verdict.

Mrs. Mary L. Hale and others filed in Walton superior court, against Euel C. Hale, a petition which, as amended, alleged substantially the following: The petitioners are the widow and children of Emmett J. Hale who, at the time of his death in 1921, owned a described lot in the Mount Vernon Church cemetery, which petitioners inherited as his only heirs at law. In the fall of 1943, Mrs. Euel C. Hale died, and the defendant, without any authority, had her buried in the cemetery lot which belongs to the petitioners. Such act was a trespass, and the defendant has stated that he intends to bury others on the lot, which would constitute a continuing trespass. The reckless disregard of the petitioners' rights by invasion of the sanctity of their cemetery lot has hurt them, caused them worry, and renders the defendant liable for exemplary damages. The petitioners prayed: (a) for process; (b) that the defendant be enjoined from burying anyone else on the lot and from trespassing on the lot in any way; (c) that the petitioners have a judgment of $500 for damages; (d) and for general relief.

The defendant filed an answer, denying the material allegations of the petition and setting forth that a petitioner made the mistake of burying a grandchild on the lot selected and used by the defendant and his brother, Warner Hale.

On the trial, Mrs. Mary L. Hale, one of the petitioners, testified: That she joined the Mount Vernon Christian Church when she was around thirteen years old. She married Emmett J. Hale in 1901, who at that time was a member of the church. In 1902, the members of the church, including her husband, contributed to a fund that was used by the church in purchasing land on which the cemetery was [199 Ga. 152] located. Within three or four years after the land was so acquired, her husband asked for a lot, and George Cook, who had charge of the cemetery, staked off a lot for him. From the time the lot was set aside to her husband, he kept it cleaned off every year as long as he lived. Emmett J. Hale died in 1921 and was buried on the lot, after which the plaintiff and her children took care of it. What she and the children did was public and continuous, so that everybody knew about it. Up to the time when the defendant buried his wife on the lot in the fall of 1943, no one had interrupted the peaceable possession of Emmett J. Hale, or of the petitioner and her children. On discovering the trespass, the petitioners wrote to the defendant that he had buried his wife 'in the place reserved for Ruth, [33 S.E.2d 443] by the side of her baby,' and requested him to remove the body of his wife. The defendant did not answer the letter, and there is not sufficient room left to bury other members of the family. The action on the part of the defendant hurt the petitioners very much. It made them nervous and unable to rest at night....

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