Smith and Gaston Funeral Directors v. Dean

• Decision Date: 24 March 1955
• Docket Number: 6 Div. 637
• Citation: 80 So.2d 227,262 Ala. 600
• Parties: SMITH and GASTON FUNERAL DIRECTORS, Inc. v. Alfred DEAN et al.
• Court: Alabama Supreme Court

Page 227

80 So.2d 227

262 Ala. 600

SMITH and GASTON FUNERAL DIRECTORS, Inc. v. Alfred DEAN et al.

6 Div. 637.

Supreme Court of Alabama.

March 24, 1955.

Rehearing Denied May 26, 1955.

G. P. Benton, Fairfield, and Wm. L. Clark, Birmingham, for appellant.

Wm. B. McCollough and Kingman C. Shelburne, Birmingham, for appellees.

GOODWYN, Justice.

Alfred Dean and his sister, Sadie Hooper, plaintiffs below and appellees here, brought action against Smith and Gaston Funeral Directors, Inc., defendant below and appellant here, seeking punitive damages for maliciously, intentionally and wantonly trespassing upon the grave of plaintiffs' deceased brother, Will Dean. This appeal is from the judgment of the circuit court rendered pursuant to a jury verdict awarding damages of $2,500. Defendant's motion for a new trial was overruled.

As finally presented to the jury, the complaint consisted only of count 4, which was as follows:

'Plaintiffs claim of the defendant the sum of Fifty Thousand & no/100 ($50,000.00) Dollars as damages for that heretofore on to-wit: during the months of May, June, July and August, 1950, the defendant through its agents, servants or employees, while acting within the line and scope of their employment, did maliciously, intentionally and wantonly trespass upon a lot or plot of land situated in the burying ground or graveyard known as the Grace Hill Cemetery in the City of Birmingham, Jefferson County, Alabama, which was, at said time, in the possession of the plaintiffs and had been in the possession of the plaintiffs for a long period of time prior thereto, and said Grace Hill Cemetery had, for a long number of years, been used by the general public as a burial ground or a graveyard. The plaintiffs aver that the defendant thru its servants, agents and employees, while acting within the line and scope of their authority as such, did on said date, intentionally, maliciously and wantonly trespass upon, desecrate, interfere with and destroy said grave of plaintiffs' deceased brother, who was buried on said lot or plot in said cemetery, and did intentionally, maliciously and wantonly interfere with, enter upon, dig up, plow and cover over and around the grave of the plaintiffs' deceased brother, destroying the ground, marker, concrete slab and all other identifications of said grave placed thereon by the plaintiffs and did otherwise intentionally, maliciously, and wantonly interfere with and desecrate the grave of the plaintiffs' deceased brother, totally obliterating said grave, and plaintiffs have been wantonly injured and claim of the defendant punitive damages.'

Defendant's demurrer to the complaint being overruled, issue was joined on defendant's plea in short by consent.

It appears from the evidence that plaintiffs obtained a burial policy on the life of their brother, Will Dean, from the Southern Burial Association; that the premiums on this policy were paid by plaintiffs; that when Will died, Alfred turned the policy over to the Southern Burial Association; that Alfred and Sadie then went to Grace Hill Cemetery and personally selected the grave site for Will's burial; that Southern Burial Association, pursuant to its contract with Alfred and Sadie, paid $10 to Grace Hill Cemetery for said burial site; and that Will was buried there on May 5, 1943, Alfred and Sadie being present at the time.

It further appears that, shortly after Will's burial, Alfred, for himself and Sadie, arranged with the cemetery caretaker for placement of a concrete slab on Will's grave. When placed, the slab covered the grave site sold by Grace Hill Cemetery for Will's burial except for a space at the foot which was left open for flowers or grass. The slab was rectangular in shape and was supported by a 'curb', 18 to 20 inches thick, which extended into the ground about 10 inches and was about 9 or 10 inches above ground. At the head of the slab there was a raised 'head piece made out of concrete' inscribed with Will's name, his date of birth and death, and with the words 'At Rest'. From the time of the burial until the early part of 1950, Alfred visited Will's grave some 40 to 50 times, at more or less regular intervals, and kept the grave free of weeds. During this time, Alfred was a resident of Jefferson County, Alabama, and Sadie resided out of the State. At the time of Alfred's last visit in 1950 the grave marker was clearly visible and was 8 or 10 inches above the top of the ground. He testified that about a year later he went to the cemetery to visit the grave but was unable to locate it; that when he went to the spot where he had been going he 'didn't see anything, no marker or nothing', 'didn't see anything but the green grass and the ground, and * * * didn't see any marker whatsoever', 'wasn't nothing there visible but the ground and grass', and that 'not a bit' of the concrete slab was visible. He made inquiry of the caretaker as to the grave but they were unable to locate the grave site until several days before the filing of this suit on January 22, 1952.

It further appears that the defendant acquired the Grace Hill Cemetery in 1948 and during the months of May, June, July and August, 1950, cleared that part of the cemetery where Will's grave was located of an accumulation of weeds, grass and vines. This work was done both by manual labor and by machine. After Will's grave site was located, it was found that the slab had been broken in several places and been caused to settle.

The position taken by defendant is that 'the plaintiffs did not establish the elements essential to the maintenance of an action of trespass, as distinguished from an action of trespass on the case', because plaintiffs failed to prove their title to or actual possession of the grave site. Incident to that contention, defendant takes the further position that since, as contended, the action is one in case and not in trespass, the cause is barred by the statute of limitation of one year, Code 1940, Title 7, Sect. 26, and does not come within the limitation of six years, Code 1940, Title 7, Sect. 21. Section 21 provides that 'actions for any trespass to real or personal property' are barred unless commenced within six years. Section 26 provides for a limitation of one year for 'actions for any injury to the person or rights of another, not arising from contract, and not herein specifically enumerated'.

It is apparent that if the action is in case it is barred by the statutory limitation of one year; if in trespass it is not barred. There is no difficulty in reaching the conclusion that the action is in trespass and, hence, is not barred. Southern Railway Co. v. Sanford, Ala.Sup., 76 So.2d 164, 166, 167; Crotwell v. Cowan, 240 Ala. 119, 121, 198 So. 126.

The principle discussed in the specially concurring opinion in Holder v. Elmwood Corporation, 231 Ala. 411, 165 So. 235, has no application here. In that case, the damages were for mental suffering which distinguishes the discussion there made from the case now before us, which, as we have noted, seeks only punitive or exemplary damages. We take occasion here to note that the special concurrence in that case was by only three members of the court.

One of the errors assigned is the action of the trial court in overruling the demurrer to the complaint (Count 4, supra). The specific objections to Count 4 are that 'it fails to contain a description of the locus in quo sufficient to put defendant on notice of same'; that it fails 'to give the location of the grave site alleged to have been trespassed upon'; and that 'it also fails to give the name of the deceased brother alleged to have been buried in the grave in question'. In Bessemer Land & Improvement Co. v. Jenkins, 111 Ala. 135, 18 So. 565, 567, 56 Am.St.Rep. 26, a father brought an action of trespass quare clausum fregit for unlawfully invading a burial lot and exhuming and carrying away the body of his child. Examination of the original record discloses that there was no allegation as to the name of the child. The premises upon which the trespass was said to have been committed were thus described in the complaint:

"That the lot or close in which the body of said child was buried is situated in a burying ground or graveyard near Bessemer in said Jefferson county, which burying ground or graveyard is now included in the land occupied by the Pipe Works Co. in or near said Bessemer, which said burying ground or graveyard had been for many years before that time used and occupied as a burying ground or graveyard by the public, having been set apart, or dedicated by defendant Co. as and for a public burying ground or graveyard."

A demurrer taking the point that the premises were not described with sufficient definiteness was overruled. In holding that the demurrer was properly overruled, this court, per Haralson, J., said:

'The close alleged to have been broken by defendant, is not described in the complaint with definite particularity, but sufficiently so, to prevent the defendant from being misled or uncertain as to the particular locus in quo of the trespass complained of. If a more accurate description had been made, it would have given the defendant no better information as to the venue of the realty, than that furnished by the complaint. 2 Chit.Pl. 609. The demurrer which questioned the sufficient accuracy of the lot or close which plaintiff alleges defendant broke and trespassed on, was properly overruled.'

On authority of that case, we conclude that overruling the demurrer to the complaint in the instant case was without error.

We come now to consider the principal question presented, that is, whether plaintiffs had such an interest in the plot as will support their action of trespass. Our view is that they did. While it does not appear that there was any sort of deed or conveyance executed by the cemetery owners to the plaintiffs, or to the Burial Society for plaintiffs' benefit, it is not controverted that...