McClellan v. Highland Sales & Inv. Co.

• Decision Date: 11 December 1967
• Docket Number: No. 52566,No. 1,52566,1
• Citation: 426 S.W.2d 74
• Court: Missouri Supreme Court
• Parties: Virginia P. McCLELLAN, Plaintiff-Appellant, v. HIGHLAND SALES & INVESTMENT CO., Inc., Defendant-Appellant

Page 74

426 S.W.2d 74

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

No. 52566.

Supreme Court of Missouri, Division No. 1.

Dec. 11, 1967.

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

Terrell, VanOsdol & Magruder by Robert F. Redmond, III, Kansas City, for defendant-appellant.

HIGGINS, Commissioner.

Action to require removal of remains from a grave (Count I), for actual damages (Count II), and punitive damages (Count III) for trespass upon the grave. Jury verdict on Counts II and III was for plaintiff for $550 actual and $1,000 punitive damages; Count I was dismissed by the court. Plaintiff appeals from the dismissal of Count I and from the award of a new trial to defendant on Count II; defendant appeals from the overruling of its motion for judgment in accordance with its motions for a directed verdict.

Both appellants assert jurisdiction in the supreme court on the theory that the action involves title to real estate.

Plaintiff's Count I alleged that in May 1964 she was the owner of a grave in which she was to be buried with her husband, Grant H. McClellan, who predeceased her; that defendants ¹ 'notwithstanding her ownership and a headstone with her and her husband's name thereon standing by said grave, trespassed upon and buried another person in said grave; that plaintiff has no adequate remedy at law to restore her grave to herself so she can be buried with her husband at her death.' The prayer of Count I was that defendants 'be made to remove the body and remains from the grave of which she is owner * * * and such other * * * relief, including injunctive relief, as the Court deems just and proper.'

Count II charged that defendants 'wrongfully buried another person in said grave; that defendants thereby trespassed upon plaintiff's real property.' The prayer was for $1,000 actual damages. Count III charged that the action alleged in Count II was willful, wanton, and malicious, and prayed for $5,000 punitive damages.

Defendants' answer was a general denial and 'Further answering, defendants state that plaintiff's husband, Grant H. McClellan, was buried in Grave 11, Lot 7, Block 7, Highland Cemetery on February 4, 1958; that said grave lot was purchased by his estate together with the adjoining lot, No. 12; that the decedent's son, Eddie McClellan, was the executor and sole residuary beneficiary of said estate * * *; that on or about November 24, 1963, the decedent's first wife, Bessie McClellan, died; that Eddie McClellan, her son, instructed Lawrence A. Jones Mortuary and Highland Cemetery to bury his mother in grave No. 12 which he had purchased as executor of his father's estate; that Bessie McClellan was buried * * * November 27, 1963; that the cost of said grave lot was $50.00; and that the plaintiff has no right, title or interest therein.'

Plaintiff, Virginia P. McClellan, married Grant H. McClellan September 7, 1956. He previously had been married for forty-three years to Bessie McClellan, their marriage ending in divorce June 17, 1949. Grant and Bessie McClellan raised Eddie McClellan as their son. Grant McClellan died and was buried in Grave 11, Lot 7, Block 7, Highland Cemetery, owned by defendant Highland Sales and Investment Co., Inc., February 4, 1958. Funeral arrangements were made with Watkins Brothers Funeral Home by plaintiff (her version) and by Eddie McClellan (his version). Plaintiff made a cash deposit on the funeral bill of $150, and the balance of $1,057.29 was paid from the estate of Grant McClellan by Eddie McClellan, executor. The bill included an item of $50 for a reserved grave beside the grave in which Grant McClellan was buried. Plaintiff claimed this grave to have been reserved for herself. All arrangements concerning the funeral and grave were made by Watkins Brothers Funeral Home. Plaintiff received nothing from Highland; Highland received nothing from plaintiff. Highland was not advised for whom the grave was reserved except for the McClellan family. Plaintiff testified that she called Highland Cemetery several times about a deed to the reserved lot.

Upon the death of Bessie McClellan, November 24, 1963, Eddie made arrangements for her funeral and burial with Woodland Funeral Home. He advised the funeral director, Lawrence Jones, that he had reserved a grave site in Highland Cemetery and that his mother, Bessie McClellan, could be buried there. Mr. Jones confirmed the reservation of a grave in the name McClellan, and Bessie McClellan subsequently was buried in that grave, No. 12, Lot 7, Block 7, Highland Cemetery, November 27, 1963.

In the fall of 1958, plaintiff ordered a double grave marker through Watkins Funeral Home and had it placed on these grave sites at a cost of $226.96. It was inscribed 'Grant H., 1888--1958' and 'Virginia P., 1903--19.' This marker was in place when Bessie McClellan was buried. Eddie did not recall seeing it; plaintiff was not at the burial; and Mrs. Alma P. Morrison, manager of Highland Cemetery, did not know of the inscription until after the burial of Bessie McClellan when it was brought to her attention by plaintiff after she discovered the situation Memorial Day 1964. Mrs. Morrison was unaware...