Kenyon v. Brightwell

• Decision Date: 13 July 1904
• Citation: 48 S.E. 124,120 Ga. 606
• Parties: KENYON v. BRIGHTWELL.
• Court: Georgia Supreme Court

48 S.E. 124

120 Ga. 606

KENYON v. BRIGHTWELL.

Supreme Court of Georgia

July 13, 1904

Syllabus by the Court.

1. It is error to refuse to sanction a petition for certiorari from the judgment of a justice of the peace when it appears from the petition that upon the call of the case in the justice's court the panel of nine jurors was challenged by the complaining party, that five of the nine jurors announced that they had publicly expressed an opinion as to which party should prevail on the trial, that the plaintiff in certiorari then objected to the panel, and that the magistrate overruled his objection and forced him to trial.

2. Where a petition for certiorari shows that the verdict in the justice's court was for a greater amount than was claimed by the plaintiff, the judge should not refuse to sanction the petition.

3. When a married woman dies, leaving a husband surviving her, the husband is primarily liable, and not the estate of the deceased, for the payment of her funeral expenses.

4. The administrator of a deceased person is not liable for the funeral expenses of the decedent, when it appears that the credit therefor was extended to a third person, on the express promise of such third person to pay the bill.

Error from Superior Court, Terrell County; H. C. Sheffield, Judge.

Action by J. L. Brightwell against J. L. Kenyon, administrator. Judgment for plaintiff, and defendant brings error. Reversed.

W. H Gurr and H. A. Wilkinson, for plaintiff in error.

M. C Edwards, for defendant in error.

CANDLER J.

This case comes up on exceptions to the refusal of the judge of the superior court to sanction a petition for certiorari. From the petition it appears that the suit was an action in a justice's court against the administrator of a deceased married woman to recover a sum alleged to be due as part of the burial expenses of the defendant's decedent. The husband of the deceased was living at the time of her death and became the administrator of her estate. The amount claimed was $16.35. Upon the call of the case in the justice's court, "nine jurors were present to try the case. Upon said jury being challenged, five of them announced that they had publicly expressed an opinion as to who should prevail in the trial of the case, while two of this five stated that they thought they might be able to decide the case according to the evidence, and not by what they had previously heard and said. Petitioner's counsel objected to said jury, whereupon the court held that this was as good a jury as there was in the district, and ordered the trial to proceed." Evidence was introduced which made out substantially the following case: Immediately after the death of Mrs. Kenyon, her stepfather, Statham, at the instance of his wife, gave directions by telegraph that the grave, which was being prepared, should be walled with brick; and, in accordance with these directions, Statham's agent gave to the plaintiff an order for the necessary brick, lime, and cement, the purchase price of which is the subject of this suit. Kenyon, the husband and subsequently the administrator of the deceased, and the Stathams had not been friendly for several years. Litigation had been pending between them for a number of years, and during that time they had not been on speaking terms. At the time of Mrs. Kenyon's death she had property amounting in value to about $2,000, but there were debts against the estate, the amount of which the record does not disclose. Kenyon had been his wife's guardian, and it is inferable that at the time of her death she had not attained her majority. Kenyon declined to authorize the order for bricking up the grave; stating that his and his wife's property together was not sufficient to defray the expenses incurred during her last illness, and that he did not intend to create any more debts, except such as were absolutely necessary. Mrs. Statham, however, was anxious that the grave should be walled, and directed her husband to have it done, as above outlined. She also sent her brother, York, to see that the work was properly done. York supplemented the order already given by telegraph, and personally informed the plaintiff that, if Mrs. Statham did not pay for the materials, he would. The jury returned a verdict for the plaintiff for $17.68. The assignments of error in the petition which were insisted upon were that the magistrate erred in requiring petitioner to strike from a jury of nine, five of whom stated in open court that they had publicly expressed an opinion as to which party should prevail; that the verdict was for a larger sum than that sued for by the plaintiff; and that the verdict was contrary to law and the evidence.

1. It is clear that the plaintiff in error, who was the defendant in the justice's court, was entitled to a hearing of his case before a jury regularly chosen in accordance with the provisions of law; and it is equally clear that those jurors who admitted having formed and publicly expressed an opinion as to which party should prevail were not competent, on objection, to serve in the case. Under Civ. Code 1895, § 4143, there should have been a panel of nine jurors, with the privilege to each party to strike two, leaving a jury of five to try the case. When from any cause the disqualification of any one of the panel is shown, there is no longer a lawful panel, and the proceedings should not go on, in the absence of a waiver, until a lawful panel is completed. It makes no difference that the petition for certiorari fails to show that the jurors were put on their voir dire. The object of the voir dire is merely to appeal to the conscience of the juror, and when, without resorting to that means, he makes known his disqualification in any way, the remedy of the complaining party is at once available. Nor does it matter that the petition fails to show that the preference expressed by the jurors was in favor of the plaintiff. Upon ascertaining that jurors were disqualified to serve on account of having expressed opinions as to which party should prevail, the defendant was not bound to go further and inquire into the precise state of their minds, but could immediately object to them as jurors.

2. In refusing to sanction the petition for certiorari, the judge evidently assumed that the difference between $16.35, the amount sued for, and $17.68, the amount of the verdict, represented the interest due on the debt. It must be borne in mind, however, that, in passing upon the question whether the petition should be sanctioned, the allegations of the petition must be taken as true, to the same extent that pleadings are taken at their face value for the purposes of demurrer. So far as appears from the petition in this case, there was no claim for interest, but $16.35 represented the entire amount claimed; and the fact that a verdict for a greater amount than this was rendered in favor of the plaintiff furnished a sufficient ground for sanctioning the petition.

3, 4. The contention that the verdict was contrary to law and the evidence opens up a most important question, and one which so far as we have been able to ascertain, has never before been decided by this court. The plaintiff in error takes the broad position that the estate of a married woman who dies, leaving a husband surviving her, is not liable for her funeral expenses. At common law, undoubtedly, a husband was bound to bury his deceased wife in a manner suitable to his station in life, and was also bound to defray all her funeral expenses. This rule prevails in many, though not all, of the states of this country; a few of the states having prescribed a different rule by statute. The duty to defray the wife's funeral expenses grows out of the obligation on the husband to provide her with necessaries in life. It has been held that the husband has supreme authority to direct where the wife shall be buried; that it is his duty to care for her grave; that, in selecting a place for the interment of the body, he may act regardless of the wishes of her family; and even that he may remove a gravestone placed at the head of the wife's grave by her mother, and substitute another more in keeping with his taste. Durell v. Hayward (Mass.) 9 Gray, 248, 69 Am.Dec....