McClellan v. Highland Sales & Inv. Co., 56481

CourtUnited States State Supreme Court of Missouri
Citation484 S.W.2d 239
Decision Date11 September 1972
Docket NumberNo. 2,No. 56481,56481,2
PartiesVirginia P. McCLELLAN, Appellant, v. HIGHLAND SALES & INVESTMENT COMPANY, Inc., and Eddie Grant McClellan, Respondents

Edward F. Aylward, Walter Disney, Kansas City, for appellant.

Robert F. Redmond, III, Kansas City, for respondent, Highland Sales & Investment Company, Inc.; Terrell, Van Osdol & MacGruder, Kansas City, of counsel.

HOUSER, Commissioner.

This is the third consideration by an appellate court of litigation instituted by Virginia McClellan, second wife of Grant H. McClellan, deceased, having as its object the disinterment of the body of his first wife Bessie from its resting place alongside Grant and the recovery of actual and punitive damages from Highland Sales & Investment Company, owner and operator of the cemetery, and from Bessie's son Eddie, on the theory that defendants buried another person in plaintiff's cemetery lot, thereby trespassing upon plaintiff's property. Following the first trial an appeal was taken to this Court on the theory that title to real estate was involved. We transferred the appeal to the Kansas City Court of Appeals since title to real estate was not then involved. See McClellan v. Highland Sales & Investment Co., Mo.Sup., 426 S.W.2d 74, in which are set forth the original pleadings and salient facts developed at the first trial. On transfer the court of appeals reversed the trial court's order dismissing Count I, affirmed the order granting a new trial on Counts II and III for insufficiency of evidence to sustain the judgment on those counts, and remanded the case for a new trial on all three counts on the ground that the record indicated 'that there probably is in existence evidence from which this controversy can be intelligently and logically settled.' McClellan v. Highland Sales & Investment Co., Mo.App., 429 S.W.2d 326. The background of the case is further delineated in the opinion of the court of appeals. Reference is made to the two previous opinions for the history of the case to the time of remand for a new trial, which need not be repeated here.

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 purchased the cemetery lot in question, erected a headstone with her name alongside that of her deceased husband's and maintained possession of the lot; that the owner of the cemetery and Bessie's son are claiming title to her lot adverse to her, constituting a cloud on the title. Again she prayed for disinterment of Bessie's body and injunctive relief, and in addition prayed in Count I that the court try and determine title to the lot and declare plaintiff to be the fee simple owner of said lot and assessment. Count II and III of the third were the same as Counts II and III of the second amended petition, except that the prayer in Count II for actual damages was increased from $1,000 to $6,000 and the prayer in Count II for punitive damages was increased from $5,000 to $9,500.

At the hearing on remand, conducted by the court without the aid of a jury, the only witness called by either party was Alma C. Morrison, whose testimony was substantially the same as that given at the first trial. Two additional documents were produced: (1) the Highland Cemetery invoice for charges made at the time of Grant McClellan's funeral. That document, dated February 4, 1958, showed a charge of $50 for Grave No. 11 in which he was buried, $40 for the value used, and $50 for 'resereved (sic) Grave #12.' The invoice further recited 'Please issue deed to Mrs. Virginia McClellan--wife' and gave her address. (2) the Highland Cemetery record of interment of Bessie, and invoice for charge for services in the sum of $37.50, showing 'Grave No. 12 Reservation' and recital 'A-Reservation' following the printed words 'Please issue deed to.'

The court found the issues generally in favor of plaintiff on Count I and ordered defendants 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 cemetery filed a motion for new trial as to Count I only. Both motions were overruled by operation of law. Plaintiff appealed. 1 Defendants did not appeal. In this situation 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 and III.

With respect to Count II (for actual damages) the parties argue pro and con on the question whether there is sufficient evidence in the record to establish appellant's ownership of Lot 11. Their arguments are beside the point. They ignore the fact that the issue of ownership has been litigated, adjudicated and settled. Appellant was given...

To continue reading

Request your trial
18 cases
  • Vanskike v. ACF Industries, Inc., s. 80-1717
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 9 Noviembre 1981
    ...indicates that Missouri courts have not yet ruled on that issue. 18 element of wantonness or bad motive." McClellan v. Highland Sales & Investment Co., 484 S.W.2d 239, 242 (Mo.1972) (citation omitted). In the present case there was no evidence, admitted or offered, of any acts by ACF that w......
  • Hale v. Firestone Tire & Rubber Co., s. 83-2406
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 13 Marzo 1985
    ...188, 208-09 (8th Cir.1981), cert. denied, 455 U.S. 1000, 102 S.Ct. 1632, 71 L.Ed.2d 867 (1982), citing McClellan v. Highland Sales & Investment Co., 484 S.W.2d 239, 242 (Mo.1972). We hold that there was evidence from which the jury could infer that Firestone knew the rim was dangerous. The ......
  • St. Louis U. Tr. Co. v. MERRILL LYNCH, PIERCE, ETC., 73 C 373 (1).
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • 24 Marzo 1976
    ...of the consequences. Genie Machine Products, Inc. v. Midwestern Machinery Co., 367 F.Supp. 897 (W.D.Mo.1974); McClellan v. Highland Sales & Investment Co., 484 S.W.2d 239 (Mo.1972); Warner v. Southwestern Bell Telephone Co., 428 S.W.2d 596 (Mo.1968). Punitive damages are similarly available......
  • Clark v. Beverly Enterprises-Missouri, Inc., ENTERPRISES-MISSOUR
    • United States
    • Court of Appeal of Missouri (US)
    • 1 Febrero 1994
    ...422. They are allowed where a legal right has been invaded but no actual damages were suffered or proved, McClellan v. Highland Sales and Invest. Co., 484 S.W.2d 239, 241 (Mo.1972); Simpkins, 855 S.W.2d at 422, or when there is no evidence from which the value of the damages may be ascertai......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT