McClellan v. Highland Sales & Inv. Co.

• Decision Date: 03 June 1968
• Docket Number: No. 24980,24980
• Citation: 429 S.W.2d 326
• Court: Missouri Court of Appeals
• Parties: Virginia P. McCLELLAN, Plaintiff-Appellant, v. HIGHLAND SALES & INVESTMENT CO., Inc., Defendant-Appellant.

Page 326

429 S.W.2d 326

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

No. 24980.

Kansas City Court of Appeals, Missouri.

June 3, 1968.

Edward F. Aylward, Kansas City, for plaintiff-appellant.

Robert F. Redmond, III, Kansas City, Terrell, Van Osdol & Magruder, Kansas City, of counsel, for defendant-appellant.

SPERRY, Commissioner.

This is a controversy over the ownership of a grave site. The case was transferred to us by Supreme Court, 426 S.W.2d 74.

Plaintiff pleaded that defendant is the owner and operator of Highland Cemetery; that, in May of 1964, plaintiff was the owner of a grave (site) therein in which she was to be buried beside the remains of her deceased husband, Grant H. McClellan; that defendant trespassed upon and buried another body in said grave site.

In the first count plaintiff prayed that defendant 'be made' to remove the body and remains from the grave of which she is the owner. In her second count she prayed for a judgment of $1,000.00 for actual damages and, in her third count, plaintiff alleged that the action of defendant was wilful, wanton, and malicious, and she prayed for punitive damages in the sum of $5,000.00.

Trial to a jury resulted in a verdict for plaintiff on the second count for $55.00, and on the third count, for $1,000.00. These two counts alone were tried to the jury. Defendant moved to set aside the verdict and enter judgment for defendant or to grant a new trial. The court overruled the motion for judgment as to counts two and three but granted defendant a new trial, as to those counts; and the court sustained defendant's motion to dismiss count one of the petition. Both parties have appealed.

In sustaining defendant's motion for a new trial as to counts two and three, the court said:

'* * * does sustain defendant's motion for a new trial for the reason that plaintiff's evidence was sufficient in law to form a basis for a verdict for the plaintiff because no submissible evidence was offered or received which raises a jury issue on the allegations of ownership contained in plaintiff's petition, * * *.'

No reason was stated by the court regarding its action in dismissing count one of the petition. We are required to carefully review the evidence in the case.

Plaintiff testified to the effect that she was the wife of Grant H. McClellan; that he had been previously married to Bessie McClellan and was divorced from her; that Grant died on January 30th, 1958; that plaintiff went to Watkins Brothers Funeral Home, in Kansas City, to make arrangements for his funeral; that she did not know the whereabouts of his records and effects; that Watkins required that there be a deposit made on the expected burial expenses; that she had no bank account but made a cash deposit of $150.00 on the burial expense; that, at that time, she reserved a second or extra grave, to be used for her own burial place; that Grant was interred in grave No. 11, Lot 7, Block 7, Highland Cemetery.

Plaintiff contends that the lot that she reserved was No. 12, located beside No. 11; that she paid $50.00 for this lot. She did not offer in evidence a deed or other written proof vesting title in her name to any lot. She identified her exhibit 3 as being a receipt for $50.00 for a grave and said: 'Three is when I bought my grave and I paid $50.00 on the second grave, extra.' Exhibit 3 is, in fact, an interment record, so described at the top of the instrument. It is dated February 3rd, 1958. The following appears thereon: name, Grant H. McClellan; date of death January 30, 1958; undertaker Watkins Brothers; grave 11, Lot 7, Block 7; name of relative or friend, Mrs. Virginia P. McClellan, wife; chapel service Tuesday February 4th, 1958, 12 o'clock--noon; vault #30 size service charge $40.00, second-extra; grave cost $50.00. Mrs. Morrison, defendant's office manager, later stated that it is a record made by defendant and was delivered by it to Watkins Brothers Funeral Home.

On cross examination she was asked if she personally received exhibit 3 from defendant. She said: 'It all come through Watkins Brothers * * * Highland hasn't given me anything.' She stated that she received the exhibit after the funeral, that she paid defendant nothing, 'all my business I transacted at Watkins.' (Emphasis ours). She said that she did not attend the funeral of Bessie McClellan.

She stated that, September 9th, 1958, she purchased a stone marker bearing the name of McClellan--Grant H.--Virginia P., and caused it to be installed on graves 11 and 12. She identified exhibits which were an invioce and receipt for a marker and also a picture showing such a marker at the grave. She stated that she visited the grave site on Memorial Day, 1964, and saw that it had been disturbed; that she then talked to Mrs. Morrison, manager of defendant, and learned that Grant's first wife, Bessie, had been interred in the grave site which plaintiff had reserved for her own use.

Plaintiff identified exhibit 2 as a receipt from Watkins Brothers Funeral Home. It is dated April 11th, 1958. Therein it is recited: Received of Virginia P. McClellan for Grant H. McClellan $1,201.57. The figure $150.00 also appears opposite the $1,201.57. When asked: 'How much did you pay towards the funeral bill?', she replied '$150.00.'

Eddie McClellan testified to the effect that Grant was his father; that his mother was Bessie mcClellan, and, again, that Besie was Bessie McClellan, and, again, that Bessie death, he conferred with Watkins regarding funeral arrangements, on two occasions prior to the funeral; that plaintiff was present on one occasion but that she did not have possession of or know anything about Grant's assets; that she did not pay anything to Watkins when witness was present; that Michael Konomos had been Grant's attorney; that witness learned that Konomos had possession of Grant's will; that, when witness paid the funeral bill at Watkins, he reserved an extra grave site and requested it be held for witness (who was the residuary legatee and executor under Grant's will, which was in evidence); that he later caused his mother's body to be interred in grave No. 12. (Lawrence Jones, of Woodland Funeral Home was in charge of Bessie's funeral. He was a party defendant in this case but was dismissed and no appeal was taken from that action). Eddie identified defendant's exhibit 2 as being a copy of the bill he paid. It is a printed form entitled: 'Statement Watkins Brothers Funeral Home.' It...