Resthaven Memorial Cemetery, Inc. v. Volk

• Decision Date: 29 April 1941
• Citation: 286 Ky. 291,150 S.W.2d 908
• Parties: RESTHAVEN MEMORIAL CEMETERY, Inc., et al. v. VOLK.
• Court: Kentucky Court of Appeals

150 S.W.2d 908

286 Ky. 291

RESTHAVEN MEMORIAL CEMETERY, Inc., et al. v. VOLK.

Court of Appeals of Kentucky

April 29, 1941

Appeal from Circuit Court Jefferson County, Common Pleas Branch First Division; Joseph J. Hancock, Judge.

Action by George Volk against the Resthaven Memorial Cemetery, Inc. and another for mental pain and anguish from disinterment and reinterment of the body of plaintiff's deceased wife without his knowledge or consent. Judgment for plaintiff, and defendants appeal.

Affirmed.

Dodd &amp Dodd, of Louisville, for appellants.

Beckham Overstreet, of Louisville, and Clarence Gordon Barrickman, of Shelbyville, for appellee.

RATLIFF Justice.

Margaret Volk died December 7, 1934, a resident of Louisville, Kentucky. At the time of her death her husband, George Volk, who was the plaintiff below and appellee in this appeal, was confined in a Louisville hospital and unable to make arrangements for the burial of Mrs. Volk or to attend the funeral, and the arrangements for the funeral and burial were entrusted to her son-in-law, Adam Harden, who authorized John Maas, an undertaker, to take charge of the funeral and burial, including the purchase of sites for two graves in Resthaven Cemetery, one for the grave of Mrs. Volk's immediate burial and the other for the burial of her husband, George Volk, upon his death. Mr. Maas telephoned the office of the appellant, Resthaven Memorial Cemetery, Inc., hereinafter called the Cemetery Company, instructing the person in charge to select two grave sites as indicated above, and to prepare the grave for the burial of Mrs. Volk on December 10, 1934, and to notify Maas of the grave, lot and section of the cemetery selected. Thereafter, and before Mrs. Volk's burial, Mass. was notified by the Cemetery Company that it had selected and prepared grave site No. 5, of lot No. 197, in Section 8, of the cemetery for Mrs. Volk's burial and that an adjoining space had been reserved for the future burial of George Volk.

Pursuant to the arrangements made, Mrs. Volk was buried in grave No. 5, of lot No. 197, Section 8, the grave being prepared by the employees of the Cemetery Company under the directions of Frank J. Vogt as agent and representative of the Cemetery Company, or, superintendent and agent of its codefendant, Resthaven Memorial Park and Cemetery Association, hereinafter called the Cemetery Association, which had some connection with the Cemetery Company, and which connection or joint liability is an issue in this case and will be discussed later in this opinion.

Mrs. Volk's body was buried on December 10 in the grave prepared as herein above stated, but it later developed that that grave site had been previously sold to another person and upon discovery of the mistake, which was but a day or two after the burial, and without any notice to plaintiff or any member of Mrs. Volk's family, her body was disinterred and removed and reinterred in another grave in and adjoining section of the cemetery, the distance being about eleven feet. According to the evidence of George Volk, the plaintiff, and other members of the Volk family, none of them were notified or informed of the mistake and the disinterment and removal of Mrs. Volk's body and its reinterment in the other grave until in May, 1935. During the interval between the time of the burial December 10 and May, 1935, the children of Mrs. Volk and perhaps other members of the family frequently visited the cemetery and placed flowers upon the grave or grave site where Mrs. Volk's body was originally buried, thinking that her body rested there. However, on Mother's Day in May, 1935, Mr. Harden requested of one of the officials or representatives of the Cemetery Company, or the Cemetery Association, that a receptacle for flowers be placed at the grave of Mrs. Volk, referring to the grave where she was originally buried, and Mr. Harden was then informed of the mistake and the disinterment and reinterment of Mrs. Volk's body as above stated.

Thereafter, in April, 1936, plaintiff brought this action in the Jefferson circuit court against the Cemetery Company alleging that the disinterment and reinterment of the body of his deceased wife was without his consent or knowledge, or any member of the family, all of which was done secretly, wantonly, and with gross carelessness and negligence, and that the body of his deceased wife was reinterred in a negligent manner, the casket being only seventeen and one-half inches from the surface of the ground; that by reason and on account of the acts of defendant, plaintiff had been caused to suffer and is now suffering and will continue to suffer great mental pain and anguish to damage in the sum of $25,000. The Cemetery Company filed its answers consisting of three paragraphs, the first of which was a traverse and in the second it pleaded the organization of the Cemetery Company and the organization of the Cemetery Association, setting out their relations to and connection with each other, and alleged that the interment, disinterment and reinterment was done by the Cemetery Association through Mr. Vogt, its superintendent, and paid by funds procured from interest on the "perpetual care fund" which was impressed with a trust and not subject to tort liability, all of which plaintiff and other purchasers of grave sites had notice and were bound thereby. Plaintiff filed his reply to the answer and later, March 23, 1937, filed an amended petition making the Cemetery Association party defendant. The defendants filed their separate answers pleading the statute of limitations, section 2516, insisting that the action was in tort predicated entirely upon the injuries to the plaintiff's feelings, which comes within the category of personal injuries, and that both the original action against the Cemetery Company and the one against the Cemetery Association by amended petition were filed more than one year after the injury complained of which was on December 12, 1934.

Numerous demurrers, motions to strike, etc., were made by the respective parties, which are not necessary to discuss herein. Issue finally joined upon the pleadings indicated above and a jury trial resulted in a verdict and judgment thereon in favor of the plaintiff in the sum of $1,000. Motions and grounds for a new trial were seasonably made and overruled, and this appeal results.

The points discussed in brief of defendants and relied on for reversal, are (1) the action was barred against both or either defendant by the one-year statute of limitations, Section 2516, (2) the funds or assets owned by the defendants are impressed with a trust and not subject to tort liability, and (3) the evidence is insufficient to take the case to the jury as against the Cemetery Company, since the evidence shows conclusively that the acts complained of were committed solely by the Cemetery Association. We will discuss the points in the order named.

Defendants do not contend that the law imposed no duty upon them to notify plaintiff of the disinterment, removal, and reinterment of the body of his wife (Louisville Cemetery Association v. Downs, 241 Ky. 773, 45 S.W.2d 5), but they rely upon the defenses mentioned above.

Section 2516, Kentucky Statutes, deals with actions that must be brought within one year after accrual of right, among which is "An action for an injury to the person of the plaintiff ***." (Our italics.) The argument is that since plaintiff's cause of action is for mental pain and suffering, or injury to his sensibilities, it is none the less an injury to his "person" in the meaning of the statute, supra.

In Menefee v. Alexander, 107 Ky. 279, 53 S.W. 653, 654, 21 Ky.Law.Rep. 980, which was an action for damages resulting from the malpractice of a physician, it was contended that the injuries resulting from the treatment of the patient were injurious to his person within the meaning of section 2516. In denying that contention the court said: "The phrase, 'an action for an injury to the person of the plaintiff,' in the statute quoted, refers to those cases where the personal injury is the gift of the action; such as actions for assault and battery, and the like. If a druggist should sell a man position for a harmless medicine, the suit for damages therefor would be not an action for injury to the person, although great suffering or loss of health had resulted from it. ***"

It will be noted that in the illustration, supra, there would have been actual physical injury to the plaintiff which is a stronger reason for bringing it within the purview of section 2516, than in ...