Westview Cemetery, Inc. v. Blanchard, No. 29622

CourtSupreme Court of Georgia
Writing for the CourtGUNTER; All the Justices concur, except JORDAN, J., who dissents from Division A, and HILL; HILL
Citation234 Ga. 540,216 S.E.2d 776
PartiesWESTVIEW CEMETERY, INC. v. Hazel BLANCHARD.
Docket NumberNo. 29622
Decision Date20 May 1975

Page 776

216 S.E.2d 776
234 Ga. 540
WESTVIEW CEMETERY, INC.
v.
Hazel BLANCHARD.
No. 29622.
Supreme Court of Georgia.
May 20, 1975.
Rehearing Denied June 17, 1975.

Page 777

[234 Ga. 546] Powell, Goldstein, Frazer & Murphy, Frank Love, Jr., Randall L. Hughes, Atlanta, for appellant.

Thomas R. Burnside, Jr., Burnside, Dye & Miller, Augusta, for appellee.

Syllabus Opinion by the Court

[234 Ga. 540] GUNTER, Justice.

This court granted the application for writ of certiorari of Westview Cemetery, Inc., to address two questions.

[234 Ga. 541] 1. May additional damages be awarded under Code Sec. 105-2002 where the entire injury is to the peace, happiness or feelings of the plaintiff within the meaning of Code Sec. 105-2003?

2. Is a public health permit required under Code Ann. Sec. 88-1717 to disinter and reinter a burial vault within the same cemetery?

This litigation began when Blanchard brought a tort action against Westview for wrongfully moving the body and grave marker of her late husband from the original grave site to another within the same cemetery. Westview won a summary judgment in the trial court, and the Court of Appeals affirmed (124 Ga.App. 195, 183 S.E.2d 399 (1971)). This court reversed 228 Ga. 461, 186 S.E.2d 92 (1972), adopting in most respects the position of the dissenters

Page 778

in the Court of Appeals. However, this court declined to decide whether a health permit is required to disinter and reinter within the same cemetery.

The case was then tried before a jury. Blanchard was awarded a verdict of $15,000 actual and $85,000 'punitive' damages. The trial judge granted a motion for new trial. Blanchard appealed. The Court of Appeals affirmed the grant of a new trial on the general grounds and also made several rulings of law to give guidance for the new trial. Westview applied for writ of certiorari, enumerating several of these rulings as error. This court granted the writ to review the following 2 rulings.

At trial, Westview requested the following instruction to the jury: 'Ladies and Gentlemen of the jury, I charge you that under the laws of this state that govern this action, no permit was required for disinterment and reinterment within the same cemetery.' The trial judge declined to give his instruction. The Court of Appeals affirmed (unanimously) on the ground that Code Ann. Sec. 88-1717 (Ga.Laws 1964, pp. 499, 591) does require a permit for disinterment and reinterment within the same cemetery.

In his closing argument to the jury, Blanchard's counsel explained that his client was seeking both compensation for 'injury to her peace, feelings and happiness' and 'punitive damages . . . to deter the wrongdoer.' Continuing, counsel stated: 'Well how do [234 Ga. 542] you deter a corporation that is worth by their own testimony $66 million?' At that point, counsel for Westview objected to the argument, and the objection was sustained. The Court of Appeals found error in this ruling and held that, where the only injury is to 'the peace, happiness, or feelings,' a plaintiff may recover for that injury under Code Sec. 105-2003 and, in addition, may in 'aggravating circumstances' recover damages 'to deter the wrongdoer' under Code Sec. 105-2002. This holding was based on the ground that Sec. 105-2003 allows only compensatory damages so that an additional award under Sec. 105-2002 would not be a double recovery.

A

Code Ann. Sec. 88-1717 establishes requirements that a 'funeral director or person acting as such' obtain a permit prior to the burial, disinterment, or removal from the state of a 'dead body.' Subsections (a) through (d) pertain to burial and transit permits. The subsections here at issue state:

'(e) A permit for disinterment and reinterment shall be required prior to disinterment of a dead body or fetus except as authorized by regulation or otherwise provided by law. Such permit shall be issued by the local registrar of the district in which the cemetery where the body was originally interred is located to a licensed funeral director, embalmer, or to the person acting as such upon application filed in accordance with the rules and regulations promulgated hereunder.

(f) The department shall prescribe all regulations necessary to regulate the disposal, transportation, interment, and disinterment of dead human bodies to the end that requirements of vital registration are met and the protection of the public health promoted.'

Westview argues that these provisions did not require Westview to obtain a permit in the case at bar for several reasons: (a) no rules and regulations have been promulgated under the statute; (b) the statute applies only to removal of bodies from one cemetery to another, not to disinterment and reinterment within the same cemetery; and (c) the statute does not apply to disinterment of bodies sealed in vaults.

The issue presented, however, is narrower than these arguments suggest. The only question before the court is [234 Ga. 543] whether the requested instruction should have been given. It is not error to refuse to give an instruction that states an erroneous principle of law. Cates v. Harris, 217

Page 779

Ga. 801, 125 S.E.2d 649 (1962). The requested instruction would be correct only if the statute were construed never to apply to disinterments and reinterments within the same cemetery. The Court of Appeals declined to adopt that construction, and this ruling is affirmed.

Code Ann. Sec. 88-1717(e) contains no express exceptions. In its terms, it applies to all disinterments and reinterments, subject only to such reasonable rules and regulations as may be promulgated. The statutory purpose stated in subsection (f) to promote 'the protection of the public health' would certainly be served in many cases of disinterment and reinterment within the same cemetery. It is not up to this court to write into the statute a specific exception. Westview's arguments should be addressed to the rule making authority in the absence of existing regulations. The burden is on the cemetery to secure a permit.

B

In determining the damages allowable where a plaintiff's whole injury is to 'peace, happiness, or feelings,' Code Secs. 105-2001, 105-2002 and 105-2003 must be construed together.

Code Sec. 105-2001 states: 'Damages are given as compensation for the injury done, and generally this is the measure where the injury is of a character capable of being estimated in money. If the injury is small, or the mitigating circumstances are strong, nominal damages only...

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95 practice notes
  • Coen v. Aptean, Inc., S18G1638
    • United States
    • Georgia Supreme Court
    • February 10, 2020
    ...damages, however, are excluded, as the tort itself is designed as a deterrent. See OCGA § 51-12-5 ; Westview Cemetery, Inc. v. Blanchard , 234 Ga. 540, 544, 216 S.E.2d 776 (1975)." Yost , 256 Ga. at 95 n.3, 344 S.E.2d 414.The Court then turned from this background discussion of the perceive......
  • Jordan v. Atlanta Affordable Housing Fund, No. A97A2018
    • United States
    • Georgia Court of Appeals
    • February 24, 1998
    ...supra, 261 Ga. at 828, 412 S.E.2d 826; OB-GYN Assoc., supra, 259 Ga. at 666(2)(A), 386 S.E.2d 146; Westview Cemetery, Inc. v. Blanchard, 234 Ga. 540, 544(B), 216 S.E.2d 776 (1975); Marcelli v. Teasley, 72 Ga. App. 421, 425(1), 33 S.E.2d 836 8. Sanders v. Brown, 178 Ga.App. 447, 450(1), 343 ......
  • Hayes v. Irwin, Civ. A. No. C 77-2027 A.
    • United States
    • U.S. District Court — Northern District of Georgia
    • June 4, 1982
    ...not on the extent of the plaintiff's injury but on the aggravated nature of the defendant's conduct. Westview Cemetery, Inc. v. Blanchard, 234 Ga. 540, 216 S.E.2d 776 (1975). To authorize punitive damages under Ga.Code Ann. § 105-2002, there must be evidence of willful misconduct, malice, f......
  • Southern General Ins. Co. v. Holt, No. A91A0045
    • United States
    • United States Court of Appeals (Georgia)
    • July 16, 1991
    ...punitive damages and damages for Holt's wounded feelings constituted an impermissible double recovery. See Westview Cemetery v. Blanchard, 234 Ga. 540, 216 S.E.2d 776 Accordingly, the trial court erred by denying appellant's motions for a directed verdict on the intentional infliction of em......
  • Request a trial to view additional results
95 cases
  • Coen v. Aptean, Inc., S18G1638
    • United States
    • Georgia Supreme Court
    • February 10, 2020
    ...damages, however, are excluded, as the tort itself is designed as a deterrent. See OCGA § 51-12-5 ; Westview Cemetery, Inc. v. Blanchard , 234 Ga. 540, 544, 216 S.E.2d 776 (1975)." Yost , 256 Ga. at 95 n.3, 344 S.E.2d 414.The Court then turned from this background discussion of the perceive......
  • Jordan v. Atlanta Affordable Housing Fund, No. A97A2018
    • United States
    • Georgia Court of Appeals
    • February 24, 1998
    ...supra, 261 Ga. at 828, 412 S.E.2d 826; OB-GYN Assoc., supra, 259 Ga. at 666(2)(A), 386 S.E.2d 146; Westview Cemetery, Inc. v. Blanchard, 234 Ga. 540, 544(B), 216 S.E.2d 776 (1975); Marcelli v. Teasley, 72 Ga. App. 421, 425(1), 33 S.E.2d 836 8. Sanders v. Brown, 178 Ga.App. 447, 450(1), 343 ......
  • Hayes v. Irwin, Civ. A. No. C 77-2027 A.
    • United States
    • U.S. District Court — Northern District of Georgia
    • June 4, 1982
    ...not on the extent of the plaintiff's injury but on the aggravated nature of the defendant's conduct. Westview Cemetery, Inc. v. Blanchard, 234 Ga. 540, 216 S.E.2d 776 (1975). To authorize punitive damages under Ga.Code Ann. § 105-2002, there must be evidence of willful misconduct, malice, f......
  • Southern General Ins. Co. v. Holt, No. A91A0045
    • United States
    • United States Court of Appeals (Georgia)
    • July 16, 1991
    ...punitive damages and damages for Holt's wounded feelings constituted an impermissible double recovery. See Westview Cemetery v. Blanchard, 234 Ga. 540, 216 S.E.2d 776 Accordingly, the trial court erred by denying appellant's motions for a directed verdict on the intentional infliction of em......
  • Request a trial to view additional results

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