West View Corp. v. Alexander

• Decision Date: 04 May 1951
• Docket Number: No. 1,No. 33485,33485,1
• Citation: 83 Ga.App. 810,65 S.E.2d 38
• Parties: WEST VIEW CORP. et al. v. ALEXANDER
• Court: Georgia Court of Appeals

Page 38

65 S.E.2d 38

83 Ga.App. 810

WEST VIEW CORP. et al. v. ALEXANDER.

No. 33485.

Court of Appeals of Georgia, Division No. 1.

May 4, 1951.

Syllabus by the Court.

1. An action lies in favor of the owner of the fee in a burial lot or the owner of an easement of burial therein to recover for the actual damages to shrubbery and flowers on the lot and for punitive damages if there are aggravating circumstances. The petition is good as against a motion to dismiss in the nature of a general demurrer.

2. The court did not err in overruling the special demurrers. The allegations of the petition which were of doubtful propriety were eliminated when the petition was re-drafted by order of the court.

Mrs. Caroline Alexander sued West View Corporation and Asa G. Candler, Jr., for damages alleged to have been inflicted by reason of acts of defendants in destroying flowers and shrubbery on a cemetery lot of plaintiff on which her mother and brother were buried. Various special demurrers were filed to the petition, some of which were sustained and some of which were overruled. Exceptions pendente lite were filed to the order overruling the various special demurrers. After the ruling on the demurrers defendants filed a combination motion to dismiss and motion to require plaintiff to re-write the petition and eliminate the parts to which demurrers were sustained. Without passing on the demurrer the court required a re-drafting of the petition. The defendants then renewed the motion to dismiss the re-drafted petition. The court overruled the motion and defendants excepted to that order and to the rulings exceptions to which were preserved by pendente lite exceptions. The re-drafted petition alleged that the plaintiff, in May, 1931, purchased from defendants a 4-grave lot in West View Cemetery and paid $250 therefor; that plaintiff's mother and brother were buried on the lot; that immediately thereafter plaintiff arranged with West View Florist to plant ivy on her mother's grave and during the summer months plant a border of 'achy' and in the late winter and early spring plant a border of pansies, paying a $12 service charge per year in addition to the cost of the initial planting and this was continued as the years went by; that the service which consisted of the clipping of the ivy once a year and putting out a border of 'achy' was continued; that in 1940 petitioner's brother passed away and was interred next to her mother, who was buried on said lot in May, 1931, and that ivy was immediately planted on his grave; that petitioner had a great love for her mother and brother and she made frequent visits to the cemetery to carry flowers to their graves and made a special effort to have them pretty and in good condition at all times; that in the month of March, 1949, when petitioner went out to defendant's cemetery, she was shocked to find that all of her beautiful ivy had been stripped from the graves and torn out by the roots and that the entire lot was completely barren and without any ivy or flowers whatsoever; that defendants removed all of the flowers and ivy from petitioner's lot; that defendants' removal of every living thing of beauty from the lot of petitioner was a wilful, wanton and deliberate desecration of the grave; that agents and employees of the defendants were directed by the defendants to commit the wholesale desecration described; that the actions of the defendants were wilful and arbitrary and were done without any legal excuse or any legal right and constituted a wilful trespass on petitioner's property; that when petitioner learned of the removal of the flowers and ivy from her loved ones' graves, she suffered extreme nervous shock, sadness and grief which caused her to suffer mental agony since learning of the wilful desecration of her loved ones' graves; that the removal of the flowers and ivy from the said graves was done by agents of the defendant corporation at the direction of the defendant Candler, and that the action of the corporation and the said Candler was malicious, wilful, vicious and deliberate, and done with no regard whatever for the feelings of petitioner and her family; that the said action of the defendants in removing...