Smith v. Telophase Nat. Cremation Soc., Inc., 84-515

• Decision Date: 14 June 1985
• Docket Number: No. 84-515,84-515
• Citation: 471 So.2d 163,10 Fla. L. Weekly 1496
• Parties: 10 Fla. L. Weekly 1496 Ursula H. SMITH, Appellant, v. TELOPHASE NATIONAL CREMATION SOCIETY, INC. d/b/a National Cremation Society and American Insurance Company, Appellees.
• Court: Florida District Court of Appeals

Page 163

471 So.2d 163

10 Fla. L. Weekly 1496

Ursula H. SMITH, Appellant, v. TELOPHASE NATIONAL CREMATION SOCIETY, INC. d/b/a National Cremation Society and American Insurance Company, Appellees.

No. 84-515.

District Court of Appeal of Florida Second District.

June 14, 1985.

Joel D. Eaton of Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, P.A., Miami, and Patrick Dekle of Law Offices of Patrick Dekle, Tampa, for appellant.

Gerald E. Rosser of Gerald E. Rosser, P.A., Miami, for appellees.

CAMPBELL, Judge.

Appellant, Ursula H. Smith, appeals the trial court's order granting appellees', Telophase National Cremation Society, Inc. and American Insurance Company, motion for remittitur or, in the alternative, granting appellees' motion for new trial. While the order appealed from simply provides that appellees' motion for new trial will be granted in the event that the remittitur is rejected, it is clear from the record that the new trial was to be to both issues of liability and damages.

In her appeal, appellant raises three points of alleged error. The first point addresses the question of whether the trial judge erred in ordering a new trial on liability on the sole grounds that he found that both the compensatory and the punitive damages awarded by the jury were excessive. The second point questions whether the trial judge erred in granting a new trial on the grounds that the compensatory damages awarded were excessive. The third point questions whether or not the trial court erred in ordering a new trial on the grounds that the punitive damages awarded were excessive.

Appellees have filed a cross appeal in which they raise two points. Their first point is whether the trial judge erred in admitting evidence of appellees' past conduct. Their second point concerns the possibility of error in the trial judge's denial of their motion for directed verdict on appellant's claim for intentional infliction of mental distress. We reverse the trial judge on the first two points raised in appellant's appeal. On appellant's third point, we affirm the remittitur or the alternative order for a new trial, but we limit any such new trial to the issue of damages only on the punitive damage claim. We affirm the trial judge in regard to the points raised in appellees' cross appeal.

Appellant's action below sought compensatory and punitive damages against appellees, alleging breach of contract, negligence and intentional infliction of mental distress. Utilizing a special verdict form, the jury found that the officers, directors, managers or employees of the appellee Telophase National Cremation Society intentionally inflicted emotional distress upon appellant which was the legal cause of damages to her; that there was a breach of contract committed by appellee against appellant which was a legal cause of her damages, and that there was negligence on the part of appellee toward appellant which was a legal cause of her damages. In assessing appellant's damages, the jury awarded her $250,000 in compensatory damages and a total of $1,250,000 in punitive damages as a result of the acts of the officers, directors, managers or employees of the appellee.

The order of the trial judge appealed from herein ordered a remittitur of the compensatory damage award in the amount of $150,000, and a remittitur of the punitive damage award of $1,050,000, resulting in a reduced award of compensatory damages of $100,000, and a reduced award of punitive damages of $200,000.

In light of the verdict in appellant's favor, we must assume that all disputes of fact were resolved and all reasonable inferences were drawn in her favor. The facts show that appellant and her husband were married in 1959. In 1980, Mr. Smith discovered that he had incurable cancer. He requested that his body be cremated upon his death, and a contract was entered into with the appellee Telophase for that purpose. He had specifically instructed appellant that he did not want his ashes scattered at sea because he shuddered at the thought of fish eating his remains. Mr. Smith died on February 13, 1981, at the time when appellant, Mr. Smith's sole heir, was forty-eight years old. No children had been born of their marriage. Appellant telephoned appellee Telophase immediately following Mr. Smith's death, yet it was some four to five hours before they arrived to remove his body from her home. The cremation also was not performed until five or six days later and that delay, according to appellant, caused her to have graphic nightmares.

Some six or seven days after Mr. Smith's body was supposed to have been cremated, appellant went to appellee's place of business to pick up her husband's ashes. Appellee's business manager was unable, at first, to locate Mr. Smith's ashes where she thought they should have been, and after having excused herself for a while, returned with an unlabeled plastic container of ashes which she represented to be those of Mr. Smith. Appellant took the ashes and started out on what she described as a pilgrimage with the intent to scatter some of her husband's ashes at each of several spots that had had particular meaning to either him or to the two of them during their marriage. She intended finally to bury the remainder of his ashes in their joint cemetery plot where, at the time of her death, her ashes could be buried and commingled with those of her husband's.

In carrying out her proposed pilgrimage, she first traveled to Daytona Beach where she and her husband had first met and scattered some of his ashes there; she next drove to Chapel Hill, North Carolina, where she scattered some of his ashes at his college and, finally, she drove to the farm in Maryland where her husband and his family had been raised. It was at this point, while scattering some of the ashes at the family farm that she found remains of some dental bridge work in the urn. According to appellant and to Mr. Smith's dentist, Mr. Smith had no bridge work. At this point, appellant realized she had been given someone else's remains. Appellant testified that as a result of being given ashes other than those of her husband, she suffered severe emotional and physical consequences for which she required medical attention.

The testimony at trial indicated that sometime after appellant picked up the ashes represented to be those of her husband, Mr. Smith's ashes had, in fact, been distributed at sea by appellee, which was contrary to his specific instructions. Without going further into the facts, the evidence presented at trial concerning the manner in which appellee conducted its business, and the manner in which it handled Mr. Smith's body and his remains, were such as to enable the jury to determine that appellees had engaged in extreme and outrageous conduct.

We find it would be helpful to address appellees' points raised in their cross-appeal first. The first point on cross-appeal concerns whether there was error in admitting evidence of appellee's past conduct, practices and policies in regard to the cremation and mixing of ashes of deceased persons. We find that there was no error in the admission of such evidence because evidence of such previous conduct would have a bearing on whether or not appellee's conduct could be categorized by the jury as extreme and outrageous.

Appellees' second point on their cross-appeal is whether the trial judge erred in denying their motion for directed verdict on appellant's claim for intentional infliction of mental distress. Since we do resolve, in light of the verdict, all disputes of fact in appellant's favor, in addition to resolving all reasonable inferences in her favor, we conclude, as we stated, that it was within the province of the jury to find that the facts, and proper inferences from the facts, establish that appellee's conduct was extreme and outrageous.

Our supreme court in Metropolitan Life Insurance Co. v. McCarson, 467 So.2d 277 (Fla.1985), has specifically recognized the tort of intentional infliction of emotional distress. In doing so, it approved Restatement (Second) of Torts § 46 (1965) as the appropriate definition of that tort. Paraphrased section 46 of the restatement provides that one who, by extreme and outrageous conduct, intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress. In the restatement's comment on "extreme and outrageous conduct," the authors explain that:

Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!"

Restatement (Second) of Torts § 46 at 73 (1965).

We cannot say that the evidence in this case does not support such a finding by the jury. We therefore affirm the trial judge in regard to appellees' cross-appeal.

We next turn to the points raised by appellant in her appeal. The first of those points that we address, is whether the trial judge erred in ordering a new trial on the issue of liability and damages as an alternative to a remittitur of both the compensatory and punitive damage award.

We must first make clear that we are not concerned here with a remittitur (or additur) as is provided for in either section 768.043 or section 768.49, Florida Statutes (1980). Those sections have to do only with actions for damages for personal injury or wrongful death arising out of the operation of a motor vehicle or medical malpractice. In both those statutes, remittitur (or additur) is provided as an alternative to a new trial on damages only where liability has been found to exist.

It seems to us also that a remittitur should be ordered in other cases...