Smith & Gaston Funeral Directors v. Wilson

• Decision Date: 24 March 1955
• Docket Number: 6 Div. 685
• Citation: 262 Ala. 401,79 So.2d 48
• Court: Alabama Supreme Court
• Parties: SMITH & GASTON FUNERAL DIRECTORS, Inc. v. Maude Gray WILSON.

Page 48

79 So.2d 48

262 Ala. 401

SMITH & GASTON FUNERAL DIRECTORS, Inc. v. Maude Gray WILSON.

6 Div. 685.

Supreme Court of Alabama.

March 24, 1955.

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

Wm. B. McCullough and Kingman C. Shelburne, Birmingham, for appellee.

GOODWYN, Justice.

Maude Gray Wilson, plaintiff below and appellee here, brought action against appellant, Smith and Gaston Funeral Directors, Inc., to recover damages growing out of an alleged trespass upon the grave of plaintiff's husband. The suit was commenced on January 24, 1952.

The case was tried on counts A, B, C, D, E, and F which charge the defendant with trespassing upon a lot or plot of land in the Grace Hill Cemetery in which plaintiff's deceased husband, Eli Gray, was buried in 1937. The suit seeks recovery of damages for mental anguish as well as punitive damages.

For the purposes of this appeal, it may be said that the counts, in substance, aver that the defendant, through its servants, agents and employees, while acting within the line and scope of their employment and authority as such, during the months of May, June, July, August and September, 1950, willfully, wantonly and intentionally trespassed upon the said grave lot and disturbed, desecrated and obliterated the said grave and its marks of identification. The jury returned a verdict in favor of plaintiff for $500. This appeal is from the judgment of the circuit court rendered pursuant to said verdict. There was no motion for a new trial.

It appears from the evidence that Grace Hill Cemetery was acquired by defendant in 1948; that for many years prior to that time, the care of the cemetery had been neglected; that during the spring and summer of 1950 the defendant took steps to clear a part of the cemetery of an overgrowth of vines and weeds and to open up some of the roadways; and that it was in the doing of this work that the trespass to the grave of Eli Gray was committed.

It further appears that Grace Hill Cemetery has been in operation for more than sixty years; that it consists of about 25 or 30 acres west of Montevallo Road and south of Elmwood Cemetery, in Jefferson County, and is divided into five sections known as A, B, C, D, & E; that it consists of a great number of small burial plots or sites; that Eli Gray was buried in Section E, where only single graves were sold; that the other sections have block and lot numbers, evidencing, as we understand it, plots for multiple burials. Although privately owned, it is our view that it is properly classified as a 'public cemetery', in contrast to a 'private cemetery', and we have so dealt with it here. Smith and Gaston Funeral Directors, Inc. v. Dean, Ala., 80 So.2d 227.

It further appears that plaintiff did not get a deed to Eli Gray's burial site but that said site was given a grave number for which she paid $15. It further appears that in 1938 the plaintiff had a concrete slab erected over Eli's grave for which she paid $35. The slab showed the name 'Eli Gray', together with the date of his birth and death. Plaintiff testified that this grave was located near a sweetgum tree; that she visited the grave three or four times a year; that the last time she saw it in good condition was in 1949; that she attempted to locate the grave after her daughter's death in 1951; that on this occasion the concrete marker and the sweetgum tree were gone; that the ground around the grave had been pulled down and torn up; that she could not identify the spot where her husband was buried; that she bought the lot through the undertaker and picked out the lot herself; that in paying for the funeral, there was an additional amount added to pay for the grave and that the undertaker handled it as a matter of convenience for her.

The questions presented on this appeal are stated in appellant's brief to be as follows:

I. 'The first, and probably the most important, is: Did the trial court err in refusing to give the general affirmative charge requested in writing by the defendant (appellant)? The answer to this question might well hinge upon a determination of the question as to whether the plaintiff's right of action, if any, was based upon a trespass to land coming within our six-year statute of limitations (Title 7, Section 21, Code of Alabama of 1940), or was based upon an action of trespass on the case coming within our one-year statute of limitations (Title 7, Section 26, Code of Alabama of 1940).'

II. 'The second question involves the propriety of the action of the trial court in overruling the defendant's objections to evidence tending to show damage to other graves other than the grave of the deceased in question, which other graves were in other sections of the cemetery far removed from the grave involved in this litigation.'

III. 'The third question, or the third class of questions, relates to the action of the trial court in overruling the defendant's demurrer to the several counts upon which the case was submitted to the jury.'

The answers to...