Rice v. Sioux City Memorial Park Cemetery, Civ. No. 666.

CourtUnited States District Courts. 8th Circuit. Northern District of Iowa
Writing for the CourtGRAVEN
Citation102 F. Supp. 658
Docket NumberCiv. No. 666.
Decision Date04 February 1952
PartiesRICE v. SIOUX CITY MEMORIAL PARK CEMETERY, Inc. et al.

102 F. Supp. 658

RICE
v.
SIOUX CITY MEMORIAL PARK CEMETERY, Inc. et al.

Civ. No. 666.

United States District Court N. D. Iowa, W. D.

February 4, 1952.


102 F. Supp. 659

Neil R. McCluhan, Winnebago, Neb., Lowell Kindig, Robert Beebe, Sioux City, Iowa, for plaintiff.

H. C. Harper, of Harper, Gleysteen & Nelson, Henry C. Shull, and Jesse E. Marshall, of Shull & Marshall, all of Sioux City, Iowa, for defendants.

GRAVEN, District Judge.

The question here presented for consideration is the question as to whether the controversy between the parties is one as to which this Court has jurisdiction.

On December 12th, 1951, the plaintiff commenced this action in the District Court of Iowa in and for Woodbury County. The plaintiff's complaint (petition under state practice), with formal parts omitted, was as follows:

Comes now the plaintiff, Evelyn Rice, and in this, her cause of action against the defendants, states to the Court that:

Count I.

Par. 1. She is a resident of Winnebago, Nebraska, and the defendant, Sioux City Memorial Park Cemetery, Incorporated, is a corporation incorporated under the laws of the State of Iowa, with its principal place of business in Woodbury County, Iowa, and that the defendants, F. K. Lytle and J. M. Gunnell, are officers and managing directors of said corporation and are residents of Sioux City, Woodbury County, Iowa.

Par. 2. On or about the 17th day of August, A. D. 1951, the plaintiff entered into a written contract, hereto attached and marked Exhibit "A", and by this reference made a part hereof, for the purchase of three cemetery lots belonging to the Sioux City Memorial Park Cemetery, Incorporated, a corporation, one of which lots was to be used for the burial of her husband, Sergeant John Rice, and the defendant corporation, through its authorized representatives, was so advised, and in part performance of this contract the plaintiff paid the sum of $100 to the defendant corporation.

Par. 3. Said Sergeant John Rice was a Sergeant in the United States Army and had been killed in combat while on active duty with the United States Army in Korea, and his body, at the time the contract was entered into, was being returned to the United States for burial.

Par. 4. On or about the 28th day of August, A. D. 1951, pursuant to arrangements made between the plaintiff and the defendant cemetery, a burial ceremony was held at the cemetery maintained by the corporation on the outskirts of Sioux City, Iowa, for final interment of the body.

Par. 5. The services were attended by the plaintiff, members of her family, members of her deceased husband's family, representatives of the United States Army, a representation of the American Legion Post of Winnebago, Nebraska, and friends of the plaintiff and the decedent. The burial was likewise supervised by representatives of the Sioux City Memorial Park Cemetery, Incorporated, who were present throughout all of the ceremony.

Par. 6. Preceding the ceremony, the funeral procession was met at the entrance of the cemetery and the said procession was escorted to the gravesite by representatives of the defendant corporation and others, and the proceedings were thereupon carried out without objection or interference by the defendant corporation.

102 F. Supp. 660

Par. 7. Upon the completion of the burial ceremony and after the sounding of Taps, the plaintiff and other interested persons left the cemetery with the knowledge and belief that the body was to be lowered into the grave and the grave covered.

Par. 8. The plaintiff left the premises of the defendant corporation at about 11:30 A. M. on August 28, 1951 and returned to her home near Winnebago, Nebraska. The defendant corporation then notified the undertaking parlor having charge of the arrangements that it would not permit the body to be placed in the ground and that other or different arrangements would have to be made for the interment of said body. Thereafter, and at approximately 4:00 o'clock P. M. of the same day, the plaintiff was advised and informed that after the completion of the funeral ceremony the defendant corporation had refused to lower the body of her deceased husband into the ground and had wrongfully and without plaintiff's permission caused said body to be removed from the gravesite and transported to various locations in and near the cemetery premises.

Par. 9. At the time and place of receiving this information, the plaintiff was in a highly nervous and distraught condition because of the emotional factors involved in the burial of her deceased husband and the care and maintenance of their three minor children, ages six, three, and two. At this point she was advised that the refusal to bury her soldier husband was because of the fact that he had Indian blood in his veins and that he was not a Caucasian, and that the body would have to be claimed by her for further disposition.

Par. 10. Upon being advised of this refusal on the part of the defendant corporation to lower the body into the grave, the plaintiff returned to Winnebago and there visited with representatives of the defendant corporation, and at said time and place the defendant corporation tendered the plaintiff an affidavit, a copy of which is hereto attached and marked Exhibit "B," and by this reference made a part hereof, which it had prepared and requested that she sign said affidavit, but the plaintiff refused to sign said affidavit because it stated, among other things, that her deceased husband was a member of the Caucasian race, and she had been advised by the representatives of the defendant corporation that their refusal to permit the burial of her deceased husband was based upon the fact that he, being an Indian, was not a member of the Caucasian race.

Par. 11. Following the refusal of the defendant corporation to permit Sergeant John Rice's body to be buried in the defendant corporation cemetery, and while the plaintiff attempted to make other arrangements for the interment of her husband's body, the President of the United States intervened and arranged for the burial of the plaintiff's husband's body in the Arlington National Cemetery, at Arlington, Virginia, and arrangements and interment were finally made in said Cemetery.

Par. 12. The acts of the defendant caused her great mental distress, humiliation, emotional fatigue, and nervous exhaustion, which condition was subsequently aggravated by the acts of the defendant in issuing statements and publications causing the plaintiff to be held up to ridicule and humiliation because of her marriage to the defendant, and the fact that part of his ancestors were of Indian blood and descent.

Par. 13. One of said publications which was given general circulation is hereto attached and marked Exhibit "C," and by this reference made a part hereof, makes numerous false and misleading statements all to the damage of the plaintiff.

Par. 14. The general tenor of said publication, Exhibit "C," was to hold the plaintiff and her deceased husband to public ridicule and contempt and to continue and extend the humiliation and mental suffering caused the plaintiff by the acts of the defendants.

Par. 15. The acts of the defendants in refusing to permit the burial of the body of the plaintiff's deceased husband was in direct violation of the plaintiff's rights and of the Fourteenth Amendment to the Constitution

102 F. Supp. 661
of the United States, and was in further violation of Section 1, Article 1 and Section 6, Article 1 of the Constitution of the State of Iowa, I.C.A

Par. 16. The acts of the defendants, and each of them, hereinabove set out and complained of, were willful and malicious and were the direct and proximate cause of the damage herein complained of and suffered by the plaintiff.

Par. 17. The plaintiff was herself free from any negligence contributing in any manner or degree to the damage herein complained of.

Par. 18. As a result of the willful and malicious conduct of the defendants hereinabove set out, the plaintiff has been damaged because of humiliation, nervous upset, and being held up to public ridicule under the circumstances in the sum of $20,000.

Par. 19. In addition thereto, the acts of the defendants being willful and malicious and being done with the knowledge that said illegal conduct on their part would harm the plaintiff and subject her to humility and nervous upset, plaintiff is entitled to recover punitive or exemplary damages in the sum of $40,000.

Par. 20. This cause of action is the property of this plaintiff and demand has been made upon the defendants and they have failed and refused to pay said damages, or any part thereof.

Wherefore, plaintiff prays that she be given judgment in the sum of $60,000, together with interest thereon at the rate of 5 per cent. per annum from the date of judgment, and for the costs of this action.

Count II.

Comes now the plaintiff and, for this, her separate and different cause of action against the defendants, and each of them, respectfully states to the Court:

All of the allegations in Paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 of Count I, of this petition are by this reference made a part hereof without repetition.

Par. 15. That part of the written contract heretofore referred to as Exhibit "A" attached to this petition which reads: "This agreement is assignable only with the consent of seller, and burial privileges accrue only to members of the caucasian race * * *" is an illegal and unenforcible provision and violates the Fourth and Fourteenth Amendments to the Constitution of the United States and Section 1, Article 1, and Section 6, Article 1 of the Constitution of the State of Iowa.

Par. 16. Even though it might be held that said provision in the contract, Exhibit "A," is constitutional, a fair interpretation of said clause in the contract, Exhibit "A," gives this plaintiff the right to bury anyone of her own choosing in the cemetery lots which she was...

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9 practice notes
  • Amos v. Prom, Civ. No. 571.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • September 30, 1953
    ...of religious or fraternal organizations. As to the Sergeant Rice case, see Rice v. Sioux City Memorial Park Cemetery, D.C.Iowa 1952, 102 F.Supp. 658; Rice v. Sioux City Memorial Park Cemetery, Iowa 60 N.W.2d The defendant's motion to dismiss is based upon the claim that under the rules of I......
  • Rice v. Sioux City Memorial Park Cemetery, No. 28
    • United States
    • United States Supreme Court
    • May 9, 1955
    ...in the validity of the clause as a bar to this action. After an abortive attempt to remove the case to the federal courts, D.C., 102 F.Supp. 658, defendants moved to dismiss the amended petition in the state court. This motion was denied, except that insofar as the amendment to the petition......
  • Trullinger v. Rosenblum, Civ. No. 2842.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas
    • October 22, 1954
    ...if sued upon alone, joined with one or more otherwise non-removable claims." And also Rice v. Sioux City Memorial Park Cemetery, D.C., 102 F.Supp. 658, at page 125 F. Supp. 763 "Cf., St. Paul Mercury Indemnity Co. v. Red Cab Co., 1938, 303 U.S. 283, 287-288, 58 S.Ct. 586, 82 L.Ed. 845; Yocu......
  • Amos v. Prom, Inc., Civ. No. 571.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • January 11, 1954
    ...see Rice v. Sioux City Memorial Park Cemetery, Iowa 1953, 60 N.W.2d 110, and Rice v. Sioux City Memorial Park Cemetery, D.C.Iowa 1952, 102 F.Supp. 658. The Iowa cases up to 1952 which involved the Act are discussed in an article by Goostree entitled, the Iowa Civil Rights Statute: A Problem......
  • Request a trial to view additional results
9 cases
  • Amos v. Prom, Civ. No. 571.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • September 30, 1953
    ...of religious or fraternal organizations. As to the Sergeant Rice case, see Rice v. Sioux City Memorial Park Cemetery, D.C.Iowa 1952, 102 F.Supp. 658; Rice v. Sioux City Memorial Park Cemetery, Iowa 60 N.W.2d The defendant's motion to dismiss is based upon the claim that under the rules of I......
  • Rice v. Sioux City Memorial Park Cemetery, No. 28
    • United States
    • United States Supreme Court
    • May 9, 1955
    ...in the validity of the clause as a bar to this action. After an abortive attempt to remove the case to the federal courts, D.C., 102 F.Supp. 658, defendants moved to dismiss the amended petition in the state court. This motion was denied, except that insofar as the amendment to the petition......
  • Trullinger v. Rosenblum, Civ. No. 2842.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas
    • October 22, 1954
    ...if sued upon alone, joined with one or more otherwise non-removable claims." And also Rice v. Sioux City Memorial Park Cemetery, D.C., 102 F.Supp. 658, at page 125 F. Supp. 763 "Cf., St. Paul Mercury Indemnity Co. v. Red Cab Co., 1938, 303 U.S. 283, 287-288, 58 S.Ct. 586, 82 L.Ed. 845; Yocu......
  • Amos v. Prom, Inc., Civ. No. 571.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • January 11, 1954
    ...see Rice v. Sioux City Memorial Park Cemetery, Iowa 1953, 60 N.W.2d 110, and Rice v. Sioux City Memorial Park Cemetery, D.C.Iowa 1952, 102 F.Supp. 658. The Iowa cases up to 1952 which involved the Act are discussed in an article by Goostree entitled, the Iowa Civil Rights Statute: A Problem......
  • Request a trial to view additional results

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