Koerper v. Glennon

• Decision Date: 04 April 1922
• Citation: 240 S.W. 260,209 Mo.App. 489
• Parties: PHILIP KOERPER et al., Respondents, v. JOHN J. GLENNON, Archbishop of the City of St. Louis, Missouri, Appellant
• Court: Missouri Court of Appeals

240 S.W. 260

209 Mo.App. 489

PHILIP KOERPER et al., Respondents, v. JOHN J. GLENNON, Archbishop of the City of St. Louis, Missouri, Appellant

Court of Appeals of Missouri, St. Louis

April 4, 1922

Appeal from the Circuit Court of the City of St. Louis.--Hon. Victor H. Falkenhainer, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Edw. V P. Schneiderhahn for appellant.

(1) When the evidence furnishes no substantial support for the allegations of the petition then it is the duty of the court to instruct the jury to find for the defendant. It may be stated as an axiomatic rule that whenever a court or jury is left by the evidence in a situation where in order to find the ultimate fact alleged they must piece out the facts adduced with conjecture or supposition, the plaintiff must be held to have failed in his proof. Nicholas v. Evang Deaconess Home, 281 Mo. 182; Kane v. Mo. P. R. R Co., 251 Mo. 13; Goransson v. Ritner Conley Man. Co., 186 Mo. 300; Milliken v. Commission Co., 202 Mo. 637; Kennedy v. Met. St. Ry. Co., 128 Mo.App. 297. (2) It was the duty of the undertaker to deliver the burial permit to the sexton or person in charge of the place of burial, to-wit, St. Peter and Paul Cemetery, before interring or otherwise disposing of the body. Sections 5804 and 5806, R. S. 1919. (3) The carelessness and negligence of the undertaker, Geraghty, agent of the plaintiffs, and his violation of the State law in not first delivering the burial permit to the sexton of SS. Peter & Paul Cemetery, is in contemplation of law carelessness and negligence on the part of the plaintiff's and this was the proximate and efficient cause of whatever interruption of the interment there was. Absent the negligence and carelessness of the undertaker and his violation of law, the interruption could not have occurred. It was, therefore, the duty of the trial court to instruct the jury that under the law and the evidence, the plaintiffs could not recover. Hearon v. Himmelberger-Harrison Lbr. Co., 230 S.W. 661; Nugent v. Milling Co., 131 Mo. 241; Reithenbach v. Ellerbe, 115 Mo. 588; Stanley v. Railroad, 114 Mo. 606; Powell v. Richmond, 76 Mo. 80; Stegmann v. Gerber, 146 Mo.App. 104; Frauthenthal v. Gas Light Co., 67 Mo App. 1; Reed v. Railroad, 50 Mo.App. 505; Hicks v. Railroad, 46 Mo.App. 304. (4) Plaintiffs are not entitled in their instruction to submit a theory not warranted by the evidence. Instruction predicating recovery on fact not supported by evidence is error. Kendrick v. Harris, 171 Mo.App. 208; Small v. Ice & Fuel Co., 179 Mo.App. 456; Cowan v. Hydraulic Press Brick Co., 222 S.W. 924; Hearon v. Himmelberger-Harrison Lbr. Co., 224 S.W. 67. (5) (a) Punitive damages are recoverable only when the act from which plaintiff suffers injury partakes of the nature of a public as well as a private injury. There must be an intentional wrong. Lewis v. Jannoupoulo, 70 Mo.App. 325; Wingate v. Bunton, 193 Mo.App. 470; 17 Corpus Juris, Title Damages, p. 984; Clark v. Fairley, 30 Mo.App. 335; Ferguson v. Railroad Co., 177 S.W. 616. (b) As is evident from the characterization of the acts for which exemplary damages may be recovered there must be either malice, wantonness or oppression, fraud or gross negligence or recklessness--a guilty intent on the part of defendant is essential to charge him with exemplary or punitive damages. 17 Corpus Juris, Title Damages, p. 983. (a) Malice should be defined. Morgan v. Durfee, 69 Mo. 469; Cody v. Gremmler, 121 Mo.App. 359; Clark v. Fairley, 30 Mo.App. 335; McQuillen, Instruction to Juries, sec. 1242. (b) The instruction given following Goetz v. Ambs (27 Mo. 28) states that malice "means the intentional doing of a wrongful act without just cause or excuse. This means that he had not only intended to do the act which is ascertained to be wrongful, but that defendant knew it was wrongful when he did it." Peak v. Taubman, 251 Mo. 390, 430. (c) Malice in this connection has been said to imply not merely an unlawful or injurious act, but this doing of an act conceived in a spirit of mischief or criminal indifference to civil obligations. The act complained of must partake of a criminal or wanton nature. 17 Corpus Juris, Title Damages, p. 984. (d) Where an act has been done in good faith, although it may result in serious injury to defendant, there can be no recovery of exemplary damages. . . . If defendant acted under a mistaken sense of duty and without any evil intent it is not a case for exemplary damages. 17 Corpus Juris, Title Damages, p. 985. (7) (a) That the verdict in an action for personal injuries was excessive constitutes reversible error, as a matter of law, irrespective of the existence of passion or prejudice on the part of the jury. Northam v. Railroad Co., 190 S.W. 576; See also, Sperry v. Hurd, 267 Mo. 628. (b) If it clearly appears that the verdict is excessive the appellate court may set it aside on the ground that the jury was influenced by passion or misapprehended the instructions. Barree v. City of Cape Girardeau, 112 S.W. 724. (8) A public cemetery falls under the classification of public or charitable uses. A public cemetery is one used by the general community or neighborhood or church A public cemetery is as much a public place as a courthouse or a market. A public cemetery is a public charity and is classed as such both in the Constitution and statutes. Stewart v. Coshow, 238 Mo. 662; Tracy v. Bittle, 213 Mo. 302; Const. Missouri, sec. 6, art. x, exempting cemeteries from taxation. (9) Public policy favors provision for and maintenance of cemeteries and exempts charitable funds from execution for damages. Stewart v. Coshow, 238 Mo. 662; Sec. 10267, R. S. 1919, incorporation; Sec. 6, art. X, Const. Mo., exemption of cemeteries whatever extent from taxation; Sec. 1612, R. S. 1919, exemption of all burial grounds from attachment and execution like court-houses and other buildings of counties and municipalities. (10) Charities are not liable for the torts of agents or employees. Nicholas v. Evang. Deaconess Home, 281 Mo. 182; Whittaker v. St. Luke's Hospital, 137 Mo.App. 116; Adams v. University Hospital, 122 Mo.App. 675. (11) The case should be reversed without being remanded. Frauenthal v. Gas Light Co., 67 Mo.App. 1; Stegmann v. Gerber, 146 Mo.App. 104.

Edw. A. Ferrenbach and Smith & Pearcy for respondent.

(1) Punitve damages are recoverable in a case of this sort. Union Center Cemetery v. Alexander, 69 So. 251; Wright v. Hollywood Cemetery Corp., 112 Geo. 884. (2) A cemetery is not a public charity, as that term is used in the "Hospital" cases. Donnely v. Boston Catholic Cemetery Association, 146 Mass. 163. The owners of the lots are a limited number of persons. The general public cannot be beneficiaries as in the Hospital cases. (3) A cemetery corporation is liable for its negligence or the negligence of its officers and agents. 11 C. J., p. 64 sec. 34; Donnelly v. Boston Catholic Cemetery Association, 146 Mass. 163; East Hill Cemertery Co. v. Thompson, 53 Ind.App. 417; Long v. Rosedale Cemetery, 84 F. 135; Wright v. Hollywood Cemetery Corp., 112 Geo. 884; Union Center Cemetery v. Alexander, 69 So. 251; Barry v. Calvary Cemetery, 106 Mo.App. 358; Barry v. Calvary Cemetery Assn., 211 Mo. 105; Stewart v. Woodmere Cemetery (Mich.), 178 N.W. 654. If liable for negligence, certainly intentional acts create a liability. (4) This verdict for punitive damages is not excessive. The humiliation to plaintiffs was great. The interference with the funeral in the manner shown by the evidence was wholly uncalled for, was boisterous, and was executed in a wanton way. In no case could the interment have been made and completed except by the defendant's agents, and the same result as was accomplished could have been accomplished if the defendant's agents had waited until after the friends, relatives and mourners had withdrawn from the grave. There was nothing accomplished by the interruption. There can be no excuse for it. (5) The trial court did not err in overruling appellant's demurrer to the evidence or in giving of plaintiff's instruction.

Daues, J. Allen, P. J., and Becker, J., concur.

OPINION

Daues, J.

--This is an action to recover damages, actual and punitive, for alleged interference by defendant's agents with a certain burial in a cemetery in the city of St. Louis. At the trial before the court and a jury there was a verdict and judgment in favor of plaintiffs and against the defendant, the appellant herein, for $ 1 actual and $ 3000 punitive damages. After filing a motion for a new trial, and excepting to the overruling of same, appellant has duly perfected his appeal to this court.

The amended petition upon which the cause went to trial includes several defendants, to-wit: St. Peter's and St. Paul's Cemetery Association; Katherine Koerper. wife of Frank Koerper, deceased; the heirs of Frank Koerper, deceased: St. Peter 's and St.Paul's Cemetery, a voluntary and unincorporated association and organization; and John J. Glennon, Archbishop of the City of St. Louis, Missouri.

The petition alleges that "the St Peter's and St. Paul's Cemetery Association is a corporation duly organized and existing under and by virtue of the laws of the State of Missouri, with its principal place of business in the city of St. Louis, Missouri. That the defendant St. Peter's and St. Pauls Cemetery is a voluntary and unincorporated association and organization, existing, known as, and operating and doing business and conducting a cemetary under the name of St. Peter's and St. Paul's Cemetary; that the defendant John J. Glennon is Archbishop of the Diocese of the city of St. Louis, Missouri, and the legal owner and holder of the title to the land occupied and operated by the defendants St. Peter's...