Louisville Cemetery Association v. Downs
| Citation | 241 Ky. 773 |
| Parties | Louisville Cemetery Association v. Downs. |
| Decision Date | 18 December 1931 |
| Court | United States State Supreme Court (Kentucky) |
1. Dead Bodies. — Kin or surviving spouse may recover damages for removal without notice of dead body by persons in control of cemetery.
2. Dead Bodies. — Conduct of cemetery in disturbing daughter's dead body, buried in wrong lot, and reburying it without notice to father, by taking up coffin in orderly manner, authorized father's recovery of compensatory damages only.
3. Damages. — Punitive damages are never authorized, unless evidence shows that defendant acted maliciously, willfully, or with gross negligence or recklessness.
4. Dead Bodies. — That cemetery, in removing dead body without notice to relative, acted in good faith and in orderly manner may be considered only in mitigation of damages.
5. Trial. — Court must prepare or direct preparation of proper instruction if offered instruction is defective.
6. Trial. — Failure to instruct jury to consider facts presented in requested instruction in mitigation of damages held error, though requested instruction erroneously presented such facts as complete defense.
7. Trial. — Court should instruct jury that nine or more jurors may agree on verdict.
Appeal from Jefferson Circuit Court.
HAGAN & MIX for appellanlt.
GILBERT BURNETT for appellee.
Reversing.
The Louisville Cemetery Association is a corporation engaged in conducting and maintaining a cemetery or burying ground for colored persons, in or near the city of Louisville, Jefferson county, Ky.
Robert C. Downs was a colored man residing in the city of Louisville on December 1, 1929. His unmarried daughter, Clara L. Downs, who was about 29 years of age, died on December 9, 1929. On the 10th day of December, 1929, Robert C. Downs and other members of his family, and a colored undertaker, John P. Cooper, visited the cemetery of the company and selected a lot known as "a four-grave lot." He then and there purchased a lot which is known as lot No. 49, and so shown on the blue print of the cemetery association.
On December 12, 1929, the remains of his daughter were buried, and it was supposed at the time that her grave was on lot No. 49, but, in preparing the grave, the sexton made a mistake and made it on lot No. 69, which adjoined lot No. 49. The grave was prepared and the remains buried within about three feet of the line of the lots. At the time of the burial, flowers and dirt were piled in the immediate vicinity of the grave, and it was not observed by appellee at the time that the grave was on the wrong lot, or on lot No. 69.
On October 30, 1929, Ben Mansfield Young was buried on lot No. 69. The deed or certificate of title to it was delivered to Lethe Young, the widow of Ben Mansfield Young, on either the 5th or 10th day of December, 1929, before the burial of Clara L. Downs, on December 12, 1929.
Several weeks after the burial of Clara L. Downs, the sexton discovered that her grave was on lot No. 69, and so notified W.L. Spaulding, the superintendent of the Louisville Cemetery Association.
After the burial of his daughter, Robert C. Downs, visited her grave and began to complain that another grave was on the lot he had purchased from the association, and insisted that there was no grave on it at the time of his purchase. The sexton informed him that the remains of his daughter were buried on lot No. 69, but could be disinterred and reburied in the proper lot without any cost to him.
The president and superintendent of the Louisville Cemetery Company thereafter, without the knowledge of Downs or any member of his family, and without affording him and his family an opportunity to be present, caused the remains of Clara L. Downs to be disinterred and reburied on the four-grave lot No. 49. The sexton and two assistants performed the work and labor. The wooden box containing the coffin was removed from the grave on lot No. 69, but it was not opened nor was the body exposed, interrupted, or molested when it was taken up and reburied on lot No. 49.
For his cause of action, the appellee alleged that the appellant's employees, "willfully, wrongfully and secretly disinterred, displaced and reburied the body" of his daughter and deposited it in another grave without his authority, knowledge, or consent, and by reason thereof he had suffered mental pain or anguish.
To prevent a recovery, the appellant traversed the allegations of the petition, and set forth as an affirmative defense the mistake in the burial of the body on the wrong lot and its disinterment and reburial in an orderly and humane manner on the correct lot. This pleading was controverted by reply. Evidence was heard, and on a trial before a jury, under the instructions of the court, a verdict was returned in favor of appellee for the sum of $1,000 compensatory damages, and $1,500 punitive damages, a total of $2,500. A judgment was accordingly entered, from which this appeal is prosecuted.
A recovery may be had by the next of kin or the surviving spouse for an unwarranted interference with the grave of a deceased, or for the infliction of an injury to a corpse, if either be done (a) maliciously, (b) or by gross negligence, (c) or wantonly, i.e., with a reckless disregard of the rights of another (Louisville & N.R.R. Co. v. Hull, 113 Ky. 561, 68 S.W. 433, 24 Ky. Law Rep. 375, 57 L.R.A. 771), (d) or for an unlawful or secret disinterment or displacement thereof (Ky. Stats., secs. 466 and 1335), or (e) an action of trespass quare clausum fregit may be maintained by the holder of the title, or the person in possession, of the lot on which a grave is located (Cooley on Torts 239, 240; 1st Blackstone's Commentaries 429; Hook v. Joyce, 94 Ky. 450, 22 S.W. 651, 15 Ky. Law Rep. 337, 21 L.R.A. 96), or (f) for the removal of a body from one grave to another by those in authority and control of the cemetery or burial ground, without notice, or an opportunity, to him who in law is entitled to be present, if he desires, before its removal. 1st Washburn on Real Estate, sec. 33; Kincaid's Appeal, 66 Pa. 411, 5 Am. Rep. 377; Partridge v. First Ind. Church, 39 Md. 637; Bessemer Land & Improvement Co. v. Jenkins, 111 Ala. 135, 18 So. 565, 56 Am. St. Rep. 26.
The established facts in the present case bring it within rule (f) as we have stated it. The burial of appellee's daughter on the Young lot, either with or without the consent or knowledge of appellee, was a trespass as against the owner and the person in possession of the Young lot, and an action in equity could have been maintained by the owner or the person in possession thereof for injunctive relief or for damages for trespass quare clausum fregit against both the appellant and the appellee by reason of the burial thereon of the body of Clara L. Downs, with the right in appellee to interpose the defense that it was done without his knowledge or consent. McWhirter v. Newell, 200 Ill. 583, 66 N.E. 345; Cave Hill Cemetery Co. v. Gosnell, 156 Ky. 599, 161 S.W. 980; Hertle v. Riddell, 127 Ky. 623, 106 S.W. 282, 32 Ky. Law Rep. 477, 15 L.R.A. (N.S.) 796, 128 Am. St. Rep. 364.
It is shown by the evidence without contradiction that the coffin containing the body of appellee's daughter was buried by appellant on the Young lot through a mistake, made in good faith by the employees in charge of its cemetery, and that to correct their mistake they disinterred it by taking up the coffin in an orderly manner and without opening it and without any indignity to the corpse,...
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