McClellan v. Highland Sales & Inv. Co.

• Decision Date: 03 September 1974
• Docket Number: No. KCD,KCD
• Citation: 514 S.W.2d 371
• Parties: Virginia P. McCLELLAN, Plaintiff-Appellant, v. HIGHLAND SALES & INVESTMENT CO., Defendant-Respondent. 26903.
• Court: Missouri Court of Appeals

Page 371

514 S.W.2d 371

Virginia P. McCLELLAN, Plaintiff-Appellant, v. HIGHLAND SALES & INVESTMENT CO., Defendant-Respondent.

No. KCD 26903.

Missouri Court of Appeals, Kansas City District.

Sept. 3, 1974.

Rehearing Denied Oct. 7, 1974.

Edward F. Aylward, Walter K. Disney, Kansas City, for plaintiff-appellant.

David M. Harding, Kansas City, for defendant-respondent.

Before DIXON, C.J., and SHANGLER and WASSERSTROM, JJ.

PER CURIAM:

This is the fourth consideration by an appellate court of litigation instituted by plaintiff, Virginia McClellan, second wife of Grant H. McClellan, deceased, involving the interment of the body of his first wife, Bessie, alongside Grant in a gravesite, ultimately determined in prior litigation to belong to plaintiff. The factual background of the case is delineated in the previous opinions and need not be repeated here. See: McClellan v. Highland Sales & Investment Co., Inc., 426 S.W.2d 74 (Mo.1967); 429 S.W.2d 326 (Mo.App.1968); 484 S.W.2d 239 (Mo.1972). The litigation being considered on this appeal has as its object the recovery of actual and punitive damages from Highland Sales & Investment Co., Inc., owner and operator of the cemetery, for trespass by the wrongful interment and the failure to disinter the remains pursuant to a circuit court order issued January 9, 1970. Plaintiff, in this action, has added Ralph G. Watt, president of Highland, and Alma C. Morrisson, manager of Highland, as defendants.

The first trial between these litigants on April 10, 1965, resulted in a jury verdict of $550 actual damages on Count II, and $1,000 punitive damages on Count III. Count I, seeking disinterment of Bessie's body, was dismissed. The trial court granted a new trial as to the actual and punitive damages on the ground that the evidence was not sufficient to sustain these judgments, yet overruled plaintiff's objections to dismissal of Count I.

Following the first trial, an appeal was taken to the Missouri Supreme Court. The Missouri Supreme Court transferred the appeal to the Kansas City Court of Appeals, holding it had no jurisdiction in that title to real estate was not then directly involved. See: McClellan v. Highland Sales & Investment Co., Inc., 426 S.W.2d 74 (Mo.1967). On transfer, the Court of Appeals reversed the trial court's order dismissing Count I, affirmed the order granting a new trial as to Count II and Count III for damages, and remanded the case for a new trial on all three counts. McClellan v. Highland Sales & Investment Co., Inc., 429 S.W.2d 326 (Mo.App.1968).

On remand, plaintiff filed a third amended petition, adding Bessie's son, Eddie Grant McClellan, as a party defendant, and adding to the original charge of trespass, allegations that plaintiff had purchased the cemetery lot in question. Plaintiff, in Count I, prayed for disinterment of Bessie's body and injunctive relief, and prayed that the court determine title to the lot and declare plaintiff to be the fee simple owner of said lot and easement. Count II asked for actual damages and Count III asked for punitive damages. At the hearing on remand, conducted by the court without the aid of a jury, additional evidence was introduced concerning the issue of ownership. See: McClellan v. Highland Sales Co., Inc., 484 S.W.2d 239, 241 (Mo.1972). The court found the issues generally in favor of plaintiff on Count I, and ordered defendant to disinter the body of Bessie and reinter the remains elsewhere; found the issues generally on Counts II and III in favor of defendants, and ordered that plaintiff take nothing under Counts II and III. Plaintiff filed a motion for new trial as to Counts II and III only. The defendant cemetery filed a motion for new trial as to Count I only. Both motions were overruled by operation of law. Plaintiff appealed. Defendant did not appeal. On January 9, 1970, the Circuit Court of Jackson County, Division 5, entered an order that defendant Highland disinter the body and remains and reinter said remains elsewhere.

The Missouri Supreme Court, in considering plaintiff's appeal as to Counts II and III, spoke to the status of the unappealed trial court order of January 9, 1970. The opinion states:

'In this situation' (defendants not having appealed from the court order on Count I) 'there is a final, unappealed from judgment for plaintiff and against defendants on Count I, and the only question before us and the only point raised by appellant is the question whether appellant is entitled to damages under Counts II iand III . . . (T)he issue of ownership has been litigated, adjudicated and settled. Appellant was given specific relief (an order of disinterment) necessarily based upon ownership rights in the cemetery lot. Although the trial court made no specific finding of fact on the issue of ownership that issue is deemed to have been found in favor of appellant under Civil Rule 73.01(b) . . . Defendants did not appeal from the judgment on Count I, which is now a final judgment adjudicating all issues actually litigated, including ownership.' (Emphasis added.) McClellan v. Highland Sales & Investment Co., Inc., 484 S.W.2d 239, 241 (Mo.1972).

As to Counts II and III, the Missouri Supreme Court affirmed the trial court's finding in favor of defendants on the issue of punitive damages under Count III. McClellan, supra, 241--242. But it reversed as to Count II, stating:

'Some actual damage is inevitably involved in the situation presented by this record . . . Under the peculiar facts of this case actual damages would unquestionably include the element of mental suffering . . . The determination of the amount of damages is primarily a matter for the jury but there is no necessity of remanding the case to impanel a jury for the purpose of assessing actual damages, since this same issue was submitted to and determined by a qualified jury at the first trial . . . In the interest of terminating this protracted litigation we adopt the jury finding awarding appellant $550 actual damages on Count II.'

The Missouri Supreme Court in its mandate states:

'Accordingly, the judgment on Count II is reversed, the judgment on Count III is affirmed, and the cause is remanded with directions to enter final judgment on Count I for plaintiff and against defendants, pursuant to the findings and judgment rendered by the circuit court at the second trial; . . .' (Emphasis added.) McClellan, supra, 242.

This mandate was handed down September 11, 1972. On February 12, 1973, plaintiff filed the petition involved in this appeal. On February 28, 1973, defendants disinterred the remains. On March 7, 1973, defendant Highland Sales paid plaintiff $550 plus interest pursuant to court decree. On March 9, 1973, the...