McHenry v. Adams, 930957

• Decision Date: 16 September 1994
• Docket Number: No. 930957,930957
• Citation: 448 S.E.2d 390,248 Va. 238
• Court: Virginia Supreme Court
• Parties: Hugh McHENRY v. Mary E. ADAMS, etc., et al. Record

Page 390

448 S.E.2d 390

248 Va. 238

Hugh McHENRY v. Mary E. ADAMS, etc., et al.

Record No. 930957.

Supreme Court of Virginia.

Sept. 16, 1994.

Rodney Sager, Carolyn A. White, Richmond, for appellant.

William Orr Smith, Richmond, for appellees Mary E. Adams, t/a C.W. Edwards Funeral Home, Anthony S. Adams and Cedell Brooks, Jr.

William B. Kerkam, III, Bremner, Baber & Janus, Richmond, on brief, for appellees Angelo S. Stevens and Julia Stevens, t/a Rappahannock Vault Co.

Clarence N. Jenkins, Jr., Wilder & Gregory, Richmond, on brief, for appellee Ambrose W. Bailey.

Present: All the Justices.

CARRICO, Chief Justice.

This case involves a claim for damages allegedly resulting from the improper burial of the plaintiff's mother. The sole question for decision is whether the trial court erred in sustaining the defendants' pleas of the statute of limitations. Finding that the court did not err, we will affirm.

On August 9, 1990, the plaintiff, Hugh McHenry, filed a motion for judgment and, later, a second amended motion for judgment against the defendants, Mary E. Adams, trading as C.W. Edwards Funeral Home (Edwards), Angelo S. Stevens and Julia Stevens, trading as Rappahannock Vault Company (Rappahannock Vault), and Anthony S. Adams, Ambrose W. Bailey, and Cedell Brooks, Jr., employees of Edwards. Seeking compensatory damages for physical and mental injuries as well as punitive damages, McHenry alleged that the defendants were guilty of negligence, breach of warranty, misrepresentation, and violation of the Virginia Consumer Protection Act.

In response, the defendants filed pleas of the statute of limitations which, as indicated above, the trial court sustained. We awarded McHenry this appeal.

The evidence is derived from pretrial depositions whose use is not the subject of controversy on appeal. This evidence shows that McHenry's mother died on April 15, 1988. On April 17, McHenry made arrangements with Edwards for his mother's burial. On April 19, she was buried in a casket that was enclosed in a "Citation" vault supplied by Rappahannock Vault. Several weeks after the burial, Rappahannock Vault furnished McHenry with a "VAULT PURCHASE AGREEMENT" guaranteeing the Citation vault against "damage due to penetration ... by water from outside the vault."

On July 15, 1988, McHenry visited his mother's grave and noticed two holes "about six inches in diameter" in the ground beside the grave. He saw flies coming from one of the holes. At that time, McHenry "thought something was wrong." He became "tense" and "jittery" and began "[h]aving trouble sleeping at night." He also became depressed from seeing flies around his mother's grave.

On July 18, 1988, McHenry complained to the local health department and on July 22 "via phone" to the Virginia Department of Health Professions. The Department's "Complaint Form," on which McHenry's grievance was recorded, is an exhibit in the record. It states that

on a recent visit to the grave, [McHenry] found the grave to have sunken and flies to have gathered around the grave. [McHenry] had ordered a sealed ... Vault, but believed that [Rappahannock Vault] did not provide the vault, provided a faulty or defective vault, or substituted a non-sealing vault.

Some time later, Angelo Stevens, one of the principals in Rappahannock Vault, visited the gravesite at the request of an Edwards employee. Stevens observed "[t]wo holes that had washed down on the side" of the grave. He "ran [his] hand down [one of the holes] to make sure the lid was on [the vault]." He filled the holes with dirt and reported to McHenry that "there was nothing wrong."

Still "not satisfied," McHenry arranged to have his mother's body disinterred. The disinterment took place on March 20, 1990, and it revealed that the vault leaked and that the casket contained water. Contrary to what McHenry had been led to believe by Edwards, the vault was not waterproof, but was made from porous material. The body was reinterred in a waterproof vault.

McHenry's physical and mental problems "intensified after the disinterment." He began to suffer nightmares in which his mother was depicted as floating in her casket. He entered into a state of "clinical depression" and was required to seek professional psychological counselling for his problems. He filed his action for damages on August 9, 1990.

The trial court found that McHenry's injuries "are not to his person in the sense that he has sustained a direct personal injury," but, rather, the result of "an unlawful invasion of his right to afford his mother a proper burial, a right first recognized as such" in Sanford v. Ware, 191 Va. 43, 60 S.E.2d 10 (1950). Accordingly, the trial court ruled that the applicable limitation was the one-year period specified by Code § 8.01-248 for personal actions "for which no limitation is otherwise prescribed," rather than the two-year period fixed by Code § 8.01-243(A) for actions for personal injuries and fraud. The court ruled further, however, that McHenry's cause of action accrued on July 15, 1988, the date he observed flies coming from the gravesite, and that because the action was not filed until August 9, 1990, more than two years later, the action was time-barred under either the one-year or the two-year limitation.

McHenry contends the trial court erred in ruling that his cause of action accrued on July 15, 1988, and in holding that the one-year limitation applied. He argues that his case is governed by the two-year limitation for personal injury actions contained in Code § 8.01-243(A). But, he says, whether the one-year or the two-year limitation is applied, the result is the same because his cause of action did not accrue until March 20, 1990, when his mother's body was disinterred and he discovered the presence of water in her casket. He filed his action for damages on August 9, 1990, less than five months after this discovery, McHenry points out, and, hence, the filing was clearly within either limitation.

Continuing, McHenry maintains that even if the trial court was correct in ruling the cause of action accrued on July 15, 1988, it erred in not evaluating "the tolling effect of fraud." McHenry notes that under Code § 8.01-249(1), an action for fraud accrues "when such fraud ... is discovered or by the exercise of due diligence reasonably should have been discovered."

McHenry contends that he properly alleged fraud in his second amended motion for judgment and that the evidence showed the defendants had "engaged in an ongoing campaign" of concealment to prevent discovery of the cause of holes and flies at the gravesite. He admits that he saw the holes and the flies on July 15, 1988, but he says he "still had no reason to discover the fraud [that was] perpetrated upon him until March 20, 1990," when his mother's body was disinterred. Hence, McHenry asserts, the defendants' fraud tolled the statute of limitations until March 20, 1990, the first date that, in the exercise of due diligence, he could have discovered the fraud and ascertained the true condition of the vault.

In any event, McHenry says, there was a conflict in the evidence on "the factual question of [when] the onset of damage [occurred]" as well as on the question concerning the tolling effect of the defendants' fraud....