Turner v. Joiner Et At

• Decision Date: 29 July 1948
• Docket Number: No. 31897.,31897.
• Citation: 48 S.E.2d 907
• Parties: TURNER et al. v. JOINER et at.
• Court: Georgia Court of Appeals

48 S.E.2d 907

TURNER et al.

v.JOINER et at.

No. 31897.

Court of Appeals of Georgia,

Division Nos. 1 and 2.

July 16, 1948.

Rehearing Denied July 29, 1948.

Syllabus by the Court.

1. (a) When the body of a deceased person is buried in a cemetery in which no particular right of easement for burial purposes has been granted to anyone, and the title to the cemetery is vested by prescription in the heirs at law of those already buried therein only by virtue of such burial, the rights of the heirs at law who perform the burial, in respect to the grave, is paramount to all persons except any who can show a superior title, or right of easement for burial. The right of action for trespass on such a grave is in the heirs at law of the person buried there.

(b) The title to flowers, so long as they have value, which are donated byfriends and relatives of deceased persons to be placed upon the graves, vests in the heirs at law of such deceased persons, provided they accept the gifts, and there is no express agreement to the contrary.

2. When evidence is submitted, without objection, relating to the same cause of action, which could have been authorized by an amendment to the pleadings, the trial judge is authorized, but not required without request, to charge upon the issue thus made by the evidence. See Jones v. Ho-gans, 197 Ga. 404, 29 S.E.2d 568. Accordingly in the instant case, it was not error for the trial judge to submit to the jury in charge the rules of law embodying the principle of ratification of a tort of the agent or servant by the principal.

3. In close and doubtful cases where the evidence is in sharp conflict it is sometimes error to fail to charge all of Code, § 38-107, same being the Code section on the determination of where the preponderance of the evidence lies, when a part thereof has been charged. See Fountain v. McCallum, 194 Ga. 269, 270(12), 21 S.E.2d 610; Renfroe et al. v. Hamilton, 193 Ga. 194, 17 S.E.2d 709.

4. (a) In an action brought by the heirs at law of a deceased person for removing flowers and the forms upon which they were placed, from the grave of such person, for the value of the flowers as special damages and for the wounded feelings of the plaintiff as general and exemplary damages, it is not error for the trial judge to charge the jury, the evidence authorizing it, that their verdict for special damages if any, will be for the value of the flowers and their verdict for general and exemplary damages will be in keeping with their enlightened consciences as fair and impartial jurors.

(b) Where the principal ratifies the tort of the agent after its commission, the liability of the principal is the same as if he had commanded it provided the ratification is had with full knowledge on the part of the principal of the manner in which the tort was committed. See Gasway v. Atlanta & West Point R. Co., 58 Ga. 216; Crockett Bros. v. Sibley, 3 Ga.App. 554(2), 60 S.E. 326.

5. Special grounds 10 and 11 of the amended motion for a new trial are without merit. Special ground 9 and the general grounds are omitted from this decision because the case is to be tried again. For the reasons set out in the 3rd headnote and 3rd division of the decision a new trial must be granted.

Error from Superior Court, Mitchell County; Carl E. Crow, Judge.

Suit by C. W. Joiner, Jr., and others against Rebecca N. Turner and others to recover damages for wrongful removal of floral pieces from grave of deceased person. Verdict and judgment for plaintiffs, defendant's motion for new trial was overruled, and defendants bring error.

Judgment reversed.

The defendants in error, C. W. Joiner, Jr., Glenn Joiner, Fred Joiner and Eugene Joiner and Jerry Alton Joiner by next friend C. W. Joiner, Jr., hereinafter referred to as plaintiffs, brought a suit as sole surviving heirs at law of Mrs. Claude Joiner, deceased, in the Superior Court of Mitchell County on September 20, 1946 against Pelham Flower and Gift Shop, a partnership composed of M. W. Turner, Sr., M. W. Turner, Jr., Mrs. Rebecca Neal Turner and Mrs. Eunice Brinson Turner, plaintiffs in error, who are hereinafter referred to as defendants.

The petition of the plaintiffs as finally amended alleged facts substantially as follows: That Mrs. Claude Joiner died August 2, 1946 and was buried at the Pine Level Cemetery in Grady County on the afternoon of August 3, 1946; that the friends and loved ones of the deceased and her family procured and had placed on her grave immediately after her body was interred, approximately 75 floral wreaths and 2 floral blankets; that the beauty of these offerings so gratified and impressed the members of the family of the deceased that pictures were made at the grave so that this last memory and tribute to their mother and grandmother would be preserved; that in order that the flowers might remain fresh as long as possible the canvas canopy furnished by theundertaker was left standing over the grave; that it had rained over the week-end of August 3rd; that the cemetery lot in which the deceased was buried on the grounds of the Pine Level Baptist Church was assigned to the family of A. L. Wamble, father of the deceased and grandfather and great grandfather of plaintiffs, sometime prior to 1912 and has since been and is now used for the burial of the deceased members of the A. L. Wamble family; that C. W. Joiner, Sr., father and grandfather of the plaintiffs was divorced from the deceased in 1935 and has been living separately and apart from her since that time and did not attend her funeral; that about 10 o'clock A.M. August 6, 1946, he and one of his grandsons visited the grave of the deceased and discovered that all the floral offerings had been removed; that he returned to Pelham and reported the disappearance of the flowers to C. W. Joiner, Jr.; that the knowledge that the flowers had been taken caused the plaintiffs great shock, mortification, embarrassment and wounded feelings; that upon investigation plaintiffs learned that Roy Wilder, an employee of the defendants, acting under the express direction and command of the defendants, given him on August 5, 1946 by defendants M. W. Turner, Jr., Mrs. Audie Hudson and Ray Nazsworth, in line of duty and within the scope of his authority, had immorally, unlawfully and unconscionably, taken and removed said flowers from the grave for the purpose of appropriating them to their use in their floral business; that such act was done wantonly, wilfully, unlawfully, intentionally, maliciously and negligently without authority of law and with reckless disregard of the rights of others, and in violation of the criminal law in the manner of committing such larceny; that its brazenness and total disregard of the rights of the plaintiffs has shocked, wounded and injured their feelings, has caused them chagrin, mortification, humiliation, insult and injury, has revulsed the entire community; that the flowers at the time they were taken were in a state of freshness; that the employee of the defendants who was sent for the flowers hesitated to take them away because of their beauty and freshness; that defendants have engaged in similar grave robbing activities in many other instances without the consent of the families of the deceased; others being the graves of G. G. Brock, Ellijah Palmer, Radio Brown, Ruby Jewel Cooper, and one Mr. Stephens; that the value of the flowers taken was $1000; that the general damages suffered by plaintiffs by reason of the shock, mortification, embarrassment and wounded feelings and the exemplary damages for which defendants are liable amounts to $25,000.

Plaintiffs prayed for verdict and judgment in the sum of $26,000 as special and actual and exemplary and general damages by reason of the facts alleged in their petition.

General and special demurrers were filed by the defendants and overruled.

The defendants filed their answer to the petition in which all material allegations of the same are either expressly denied or answered so as to require strict proof. By further answer defendants say that plaintiffs and each of them well know that the defendants are not guilty of having engaged in criminal grave robbing activities in other instances as alleged in the petition, and charge that said allegation was deliberately made for the purpose of prejudicing the case against them. By amendment to their answer the defendants say on information that the deceased was buried in a lot belonging to her deceased father in his lifetime; that she has several brothers and sisters in life, and that plaintiffs had no legal right to bury her there without the written consent of the other members of her deceased father's family.

On the trial of the case the evidence was in sharp conflict. However, construing it in its most favorable light to support the verdict as required, the jury was authorized to find facts substantially as follows: That the deceased was buried in Pine Level Cemetery of Grady County on the grounds of the Pine Level Baptist Church in a plot where the members of the family of A. L. Wamble, father of the deceased, had been buried since the year 1912; that immediately following her interment, 60 some-odd different floral offerings were left on hergrave and arranged upon forms composed of wire and other material used by florists for this purpose; that some of the surviving members of the family of the deceased took pictures of this floral arrangement at the grave; that defendants, due to the scarity of these forms, engaged in the practice of retrieving them from cemeteries after use, sometimes by permission of the members of the family of the deceased, by purchase or gift, and sometimes without such permission; that this practice was known to some of the members of the partnership and was engaged in principally by the agent of the defendants in charge of the floral business; that two days after the burial of the deceased the agent of the defendants in charge of the floral business,...