Westview Cemetery, Inc. v. Blanchard

• Decision Date: 20 May 1975
• Docket Number: No. 29622,29622
• Citation: 234 Ga. 540,216 S.E.2d 776
• Parties: WESTVIEW CEMETERY, INC. v. Hazel BLANCHARD.
• Court: Georgia Supreme Court

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.

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

GUNTER, Justice.

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

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 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 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 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 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 are given.' Where there is a physical injury or pecuniary loss, compensatory damages include recovery for accompanying 'mental pain and suffering' even though the tortious conduct complained of is merely negligent. See Montega Corp. v. Hazelrigs, 229 Ga. 126, 189 S.E.2d 421 (1972). Compare Chapman v. Western Union Telegraph Co., 88 Ga. 763, 15 S.E. 901 (1882).

Code Sec. 105-2002 states: 'In very tort there may be aggravating circumstances, either in the act or the intention, and in that event the jury may give additional damages, either to deter the wrongdoer from repeating the trespass or as compensation for the wounded feelings of the plaintiff.' Under this section, damages are allowable either to deter the wrongdoer or to compensate for wounded feelings, but not both. Johnson v. Morris, 158 Ga. 403, 123 S.E. 707 (1924). Although this section does not speak of 'punitive damages,' the additional damages allowed are what would commonly be called 'punitive' in that such damages are in addition to compensatory damages and in that the award is based not on the extent of the plaintiff's injury but on the aggravated nature of the defendant's conduct.

Code Sec. 105-2003 states: 'In some torts the entire injury is to the peace, happiness, or feelings of the plaintiff; in such cases no measure of damages can be prescribed, except the enlightened conscience of impartial jurors. The worldly circumstances of the parties, the amount of bad faith in the transaction, and all the attendant facts should be weighed. The verdict of a jury in such case should not be disturbed, unless the court should suspect bias or prejudice from its excess or its inadequacy.' This section does not create a cause of action for injury to peace, feelings or happiness but prescribes the measure of recovery where such a cause of action exists. Chapman v. Western Union Telegraph Co., supra. If 'mental pain and suffering' is not accompanied by physical injury or pecuniary loss, recovery is allowed only if the conduct complained of was 'malicious, wilful, or wanton.' Montega Corp. v. Hazelrigs, supra. The measure of damages under this section is unique in that the jury is permitted to consider the worldly circumstances of the parties. See Atlanta Consolidated Street Railway v. Hardage. 93 Ga. 457, 21 S.E. 100 (1893).

In the case at bar, the only injury was to the peace, feeling or happiness of the plaintiff; and the case was tried on that basis. The question posed is whether the plaintiff may recover both the damages allowed under Sec. 105-2003 and damages to deter the wrongdoer under Code Sec. 105-2002. This question must be answered by examining the extent to which the recovery allowed by 105-2003 already includes such 'punitive' damages as would be allowed under 105-2002. There are several respects in which the damages allowable under 105-2003 are analogous to those allowable under 105-2002.

First, recovery where the only injury is to peace, feelings or happiness was disfavored at common law (Chapman, supra) and, accordingly, recovery is allowed only where the defendant's conduct is malicious, wilful, or wanton (Montega, supra). The Montega test for recovery for a purely mental injury is essentially the same as the test for recovery of 'punitive damages.' See Standard Oil Company v. Mt. Bethel Church, 230 Ga. 341, 196 S.E.2d 869 (1973).

Second, under Sec. 105-2003, the jury is entitled to consider all the circumstances, including the 'worldly circumstances' and any bad faith of the defendant. Thus, the jury is not restricted to...