Payne v. Alabama Cemetery Ass'n, Inc.

• Decision Date: 23 April 1982
• Citation: 413 So.2d 1067
• Parties: Brenda B. PAYNE v. ALABAMA CEMETERY ASSOCIATION, INC., a Corporation d/b/a Remount Park Cemetery, Ross-Clayton Funeral Home, Inc., a Corporation, et al. 80-636.
• Court: Alabama Supreme Court

Page 1067

413 So.2d 1067

Brenda B. PAYNE v. ALABAMA CEMETERY ASSOCIATION, INC., a Corporation d/b/a Remount Park Cemetery, Ross-Clayton Funeral Home, Inc., a Corporation, et al.

80-636.

Supreme Court of Alabama.

April 23, 1982.

Ruben K. King and L. Gilbert Kendrick, Montgomery, for appellant.

Dennis R. Bailey and James W. Garrett, Jr. of Rushton, Stakely, Johnston & Garrett and Charles Price, Montgomery, for appellee Ross-Clayton Funeral Home, Inc.

William I. Hill, II of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellee Arthur King.

TORBERT, Chief Justice.

This appeal is from a summary judgment granted in favor of defendants, Ross-Clayton Funeral Home, Inc. (Ross-Clayton), Alabama Cemetery Association, Inc., and Arthur King, in an action for damages by plaintiff, Brenda B. Payne, for trespass and for the negligent or wanton destruction of the bodily remains of plaintiff's mother, which was alleged to have caused the plaintiff to become mentally and emotionally upset, sick, and nervous. We reverse and remand.

The appellant's mother, Emma Lee Payne (Emma Lee), died and was buried in Remount Park Cemetery in Montgomery, Alabama, in 1953. Her funeral was conducted by Lee Funeral Home. Twenty-two years later, on August 20, 1975, Alzada Payne, mother of Emma Lee, died. At that time, Brenda went to Ross-Clayton to make funeral arrangements, but did not pick out a casket at that time. Later, Brenda returned with her great-aunt, Laura Mae Payne (Laura Mae), to complete arrangements and to choose a casket. While there, they spoke with Herman Waters, manager of Ross-Clayton, and discussed an insurance policy covering the cost of the funeral and most of the incidental expenses. Appellant contends that during this visit Mr. Waters asked them to pick out a casket, but took them "out in the back yard" to an old barn where a number of old caskets were stored. Laura Mae and Brenda testified in their depositions that these caskets were old, had dirt on them, and appeared to have been in the ground at some point. When Mr. Waters asked if they saw one they wanted, they said that they wanted a new casket and were taken back inside.

Once inside, they chose a casket and began to complete the funeral arrangements. According to appellant and Laura Mae, Alzada wanted to be buried above Emma Lee. This required that the vault containing the coffin and bodily remains of Emma Lee be dug up and removed from the gravesite so that the grave could be deepened to hold two vaults instead of one. Appellant contends that she requested Fletcher Haynes, now deceased, to do the vault work for her grandmother's burial, since he had previously handled all of that type work for the Payne family, but that Waters stated that Ross-Clayton would take care of all the arrangements. Ross-Clayton, however, contends that the appellant requested Lacy King to do the work and, as a result, they contacted him for the job. A contract was then signed for Ross-Clayton to handle the entire funeral arrangements in return for the proceeds of the burial insurance policy and $285.50 in cash.

A short time later, Ross-Clayton sent a car to take Laura Mae to Remount Park Cemetery to discuss the details of the burial. When she arrived at the gravesite, she found Lacy King and his two sons. Laura Mae testified in her deposition that she did not know that Fletcher Haynes would not be doing the vault work until she arrived at the cemetery. At that time she asked Lacy King who he was and he replied, "[W]e do work for Ross and Clayton." After talking to King, he assured Laura Mae that he could do the work, so she consented and showed him what she wanted done.

About three hours later, Lacy King visited Brenda and Laura Mae and informed them that he and his sons had finished the vault work. He asked them to come to the cemetery to see the work and when they declined he told them he had done something he was not supposed to do. Brenda and Laura Mae testified in their depositions that King informed them that he had opened the casket, that Emma Lee's undergarmets remained in good condition, and that her hair had grown. He then promised that he had "fastened her back up," lowered her back into the vault, and turned everything else over to his son Arthur to finish. Laura Mae and Brenda promised not to say anything to Ross-Clayton about the incident, because, Laura Mae said in her deposition, "[D]uring the family hour, you cannot discuss what has happened. You have to get yourself composed to get yourself together. Death is not an easy thing, especially a loved one."

The funeral of Alzada Payne proceeded without further incident. It was handled totally by Ross-Clayton and to the satisfaction of the appellant.

On or about Mother's Day, 1979, James Payne, brother of Alzada Payne, visited her grave and noticed that it was sinking. Both Laura Mae and Brenda called Mr. Waters at Ross-Clayton, because, Laura Mae said, "[T]hey knew the ones that did the work. They sent them out." A time was then arranged to open the grave to determine the cause of the sinking.

Present at the opening were James Payne, Brenda Payne, Laura Mae Payne, Brenda's two sons, Mr. Waters, a Mr. Harris (to open the grave) and a helper (Field Barnette, who works for the cemetery), and Arthur King (son of Lacy King and one of the two sons alleged to have been present when Lacy King deepened Emma Lee's grave); Lacy King had died in 1977. Upon opening the grave, it was discovered that the vault and casket of Emma Lee Payne were missing. Mr. Waters informed the Paynes of that fact and then left. Laura Mae then approached Arthur King and inquired where the remains of Emma Lee and her casket were. Laura Mae and Brenda said that though he stated he did not know, he was very nervous and they said, "He was shaking. He was absolutely shaking. During the time they were opening that thing, he was shaking."

Shortly thereafter, a meeting was arranged between Brenda and Laura Mae, and Rufus Lewis, Calloway Ross, and Mr. Waters, all of Ross-Clayton, and the wife of Lacy King. At the start of the meeting, only Brenda, Laura Mae, and Rufus Lewis were present. Brenda testified in her deposition:

"Q. Who spoke first for your family?

"A. Mr.--my mother ¹ spoke first. She asked Mr. Lewis, said, we were over there trying to get--find out that happened to my mother's grave--well, vault and casket. And Mr. Lewis said, well, I am sure we can come to some conclusion. And he said, you know, Mr. Waters and everything, he took care of all the arrangements. He said, what is the problem. And we told him, you know, what Mr. Harris had told us: There was nothing there.

"Q. Who told him?

"A. My aunt told him.

"Q. She did the talking?

"A. Yes. She did the talking for the first part. And she said, there is nothing there. She said, there should be something. So he said, well, Mrs. Payne, he said, after twenty-five years, do you expect for anything to be in the ground. She said, I most certainly do. She said, if it is nothing but a piece of tin, she said, something should be there. He said, well, I guess you are right.

"Q. Who said that?

"A. Mr. Lewis. So then he up and said, well, how much money you all want. And we said, well, we can't disclose [discuss?] that. We are on--we have to talk to a lawyer, you know.

"Q. Who said that?

"A. Mr. Rufus Lewis.

"Q. I mean, who said: We can't discuss that?

"A. My aunt said, we can't discuss that. We have to get a lawyer. Said, but in the meantime, only thing that we really want to know, what happened to everything. That is what we want to know."

Shortly after this conversation, Arthur King arrived and he and the others entered the meeting. Upon questioning Arthur King and receiving no answers to her questions, Laura Mae became quite upset and left. Plaintiff alleges that as she and Laura Mae were leaving, they engaged in a curious conversation with one of Ross-Clayton's employees. Brenda testified:

"A. ... And so we left. I said, well, I will talk with you all later. So we left. And as we were getting in the car, Mr. Griffin, one of the employees over there--

"Q. What is his first name?

"A. I don't know his first name.

"Q. He is an employee where?

"A. He is employed at Ross and Clayton. He turned to my aunt as we were getting in the car. And he said, Mrs. Payne, he said I am so sorry this happened. But, he said, they know what they did with it; they are just so low down they won't tell you. My mamma said, well, that is all right.

"Q. Who did he tell this to?

"A. He told it to my aunt. I was at the driving--I was right there. I was under the driving wheel, and she was on the passenger side.

"Q. Who did you understand the they meant in that sentence?

"A. Ross and Clayton."

This action was subsequently filed on January 30, 1980, by Brenda Payne against the Alabama Cemetery Association, Ross-Clayton, and, by subsequent amendment, Arthur King (originally an unnamed defendant). The complaint, as amended, alleged trespass and the negligent or intentional destruction of the bodily remains of Emma Lee Payne. On May 5, 1981, the trial court entered an order stating that no issue of material fact existed between the parties and granting the defendant's motion for summary judgment.

A party moving for summary judgment has imposed upon him the burden of clearly showing that the non-movant cannot recover under any discernible set of circumstances and that there is no genuine issue of material fact. Missildine v. Avondale Mills, Inc., 415 So.2d 1040 (Ala.1981); Fountain v. Phillips, 404 So.2d 614 (Ala.1981); Butler v. Michigan Mutual Insurance Co., 402 So.2d 949 (Ala.1981); Amason v. First State Bank of Lineville, 369 So.2d 547 (Ala.1979). The party moving for summary judgment must be entitled to a judgment as a matter of law, Missildine v. Avondale Mills, Inc., 415 So.2d 1040 (Ala.1981); Studdard v. South Central Bell Telephone Co., 356 So.2d 139 (Ala.1978); Birmingham...