McClellan v. Highland Sales & Inv. Co., No. KCD

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

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.

Page 372

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

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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...