Whitt v. Hulsey

• Decision Date: 11 December 1987
• Citation: 519 So.2d 901
• Parties: Buford WHITT v. Sally Jones HULSEY, et al. 85-1436.
• Court: Alabama Supreme Court

Page 901

519 So.2d 901

77 A.L.R.4th 95

Buford WHITT v. Sally Jones HULSEY, et al.

85-1436.

Supreme Court of Alabama.

Dec. 11, 1987.

Rehearing Denied Jan. 22, 1988.

Robert H. Ford of Brinkley & Ford, Huntsville, for appellant.

Albert C. Swain, Huntsville, for appellees.

PER CURIAM.

Defendant Buford Whitt appeals from a judgment of the Madison County Circuit Court in favor of plaintiffs Sally Jones Hulsey, Dewey Jones, Willie Hatchett, and Delaney Hatchett Spray. We affirm.

In their complaint, the plaintiffs allege that they are descendants of Benjamin Ellis, who died in 1853 and who is buried in a family cemetery in Madison County. The plaintiffs assert that the family cemetery consists of one-quarter acre that was excepted from an 1879 deed conveying a larger tract, and that this land was reserved for a family burial ground. They claim that Whitt purchased the property surrounding the cemetery in 1983, and that he has destroyed a fence surrounding the cemetery and has otherwise damaged the cemetery. The pretrial order delineated causes of action "based on trespass; desecration of a cemetery; and tort of outrageous conduct; and for injunctive relief establishing the boundaries of the cemetery and access thereto." The jury found in favor of the plaintiffs and assessed damages at $14,500. The trial court rendered judgment based on the jury verdict and made the following findings:

"Upon consideration of the verdict of the jury, which the Court considers to be advisory as to the equitable issues of this case, the Court finds, and does hereby ADJUDGE and DECREE, that the Plaintiffs, as next of kin of Benjamin Ellis, are the owners of a one-quarter acre tract of real property situated in the Northwest Quarter of Section 9, Township 2 South, Range 1 West in Madison County, Alabama, the same being known as the Benjamin Ellis Cemetery.

"The Court finds that the Benjamin Ellis Cemetery is surrounded by real property owned by the Defendant, Buford Whitt. The Court further finds that the Plaintiffs and other persons interested in the Benjamin Ellis Cemetery have the unlimited right and privilege of ingress and egress to and from said Cemetery over the lands of the Defendant, and a right to inter additional deceased persons in said cemetery. Upon consideration of the foregoing, the Defendant is hereby enjoined and restrained from prohibiting access to said Cemetery, and is ORDERED to permit ingress and egress to and from said Cemetery for lawful purposes, including the interment of additional deceased persons."

The trial court also directed the parties to submit surveys of the boundary of the cemetery, along with their contentions with respect to the locations of the boundary.

Following the submission of surveys and contentions of counsel for both parties, and after viewing the site of the cemetery, the trial court adopted the survey proposed by the plaintiffs as the boundary of the cemetery. In addition, the trial court made the following findings:

"It is further ORDERED, ADJUDGED and DECREED that the Plaintiffs and all others with any interest in the Benjamin Ellis Cemetery shall have a right of ingress and egress to and from said cemetery parcel over the lands of the Defendant, and the Defendant and his successors and assigns are hereby ORDERED to allow such ingress and egress by keeping the currently existing roadway from Monroe Road to the cemetery open and unobstructed for such use provided that such ingress and egress shall be via the route passing to the North of the farming building and grain silos constructed by the Defendant adjacent to a portion of such roadway (and not via the Southern fork of such roadway running between the farm building and silos and other farm buildings).

"It is further ORDERED, ADJUDGED and DECREED that the Plaintiffs shall, within ninety days of the date of this Judgment, construct and thereafter maintain a suitable boundary fence along the boundary of the Benjamin Ellis Cemetery as herein established; provided, however, that if this cause is appealed, then the Plaintiffs shall have ninety days from the date a final determination is entered in this cause upon appeal in order to construct said boundary fence."

Whitt's motions for judgment notwithstanding the verdict and for new trial were denied by the trial court. Whitt appeals, presenting six issues for review.

Whitt's first contention is that the trial court committed error by reading a criminal statute, Ala.Code 1975, § 13A-7-23.1, in charging the jury on the claim for desecration of a tomb or gravestone. The trial judge charged the jury as follows:

"Any person who willfully or maliciously injures, defaces, removes, or destroys any tomb, monument, gravestone or other memorial of the dead or any fence or enclosure about any tomb, monument, gravestone or memorial or who willfully and wrongfully destroys, removes, cuts, breaks, or injures any tree, shrub, plant, flower, decoration or other real or personal property within any cemetery or graveyard shall be guilty of a Class A misdemeanor. Of course, the Defendant is not charged with a criminal offense here, Ladies and Gentlemen...."

Citing Lassetter v. King, 249 Ala. 422, 31 So.2d 588 (1947), Whitt contends that the trial court erroneously charged the jury by reading a criminal charge to the jury in a civil action, and that he thus is entitled to a new trial. Lassetter involved a civil action for wrongful death caused by the negligent operation of an automobile, and a new trial was granted based upon the trial court's having charged the jury on the criminal law relating to reckless driving. The Lassetter Court observed that the "charge restates practically in full the criminal statute regarding reckless driving, with the details of minimum and maximum punishment to be imposed, including the prohibition against further driving for at least six months." 249 Ala. at 423, 31 So.2d at 589. The Court, in denying the petition for writ of certiorari, held:

"The Court of Appeals has concluded that, considering the entire record, this charge not only had a tendency to mislead but in fact did mislead the jury, and that the giving of such a charge justified the action of the court in granting a new trial. We are unwilling to hold that the Court of Appeals was in error in this regard."

249 Ala. at 424, 31 So.2d at 590.

The charge read to the jury in this case differs from the charge given in Lassetter, however, because it did not include the range of punishment upon conviction, as did the charge in Lassetter. See McGough Bakeries Corp. v. Reynolds, 250 Ala. 592, 597-98, 35 So.2d 332, 337 (1948). The charge given the jury on the desecration claim stated the elements of the action without mentioning any possible punishment. Furthermore, the trial court clearly instructed the jury that Whitt was "not charged with a criminal offense." We find no error in this instance by the trial court in its instruction to the jury on the desecration claim.

The second argument advanced by Whitt is that the evidence presented at trial did not warrant submission of a cause of action for outrageous conduct to the jury. The tort of outrage was recognized in Alabama in American Road Service Co. v. Inmon, 394 So.2d 361 (Ala.1980), and was defined by the Inmon Court as follows:

"[O]ne who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress and for bodily harm resulting from the distress. The emotional distress thereunder must be so severe that no reasonable person could be expected to endure it. Any recovery must be reasonable and justified under the circumstances, liability ensuing only when the conduct is extreme.... By extreme we refer to conduct 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 society...."

394 So.2d at 365. For an outrageous conduct count to be properly submitted to a jury, there must be "sufficient evidence from which permissible inferences could be drawn to support a finding of the extreme conduct necessary to constitute outrageous conduct." Empiregas, Inc. v. Geary, 431 So.2d 1258, 1261 (Ala.1983).

Whitt contends that his conduct in reclaiming the land and his subsequent encroachment onto a portion of the quarter acre designated as a cemetery was accidental, and was by no means intentional. Neither the deed to the property purchased by Whitt nor the title examination with regard to that property revealed the existence of a cemetery on the 605-acre tract. However, evidence was presented to indicate that Whitt was aware that there was a cemetery on the property. Billy League, who had a lease on the property at the time Whitt bought it, testified that in the summer of 1983 he pointed out the general location of the cemetery to Whitt as they rode over the property in a truck. Sam Watson, who worked for Billy League on the farm, testified that before Whitt bought the property the cemetery was grown up "a little bit around the edges ... but inside the fence the cemetery was clean." Watson estimated the size of the cemetery to be "a quarter of an acre," and he stated that an old fence surrounded the whole cemetery with a newer fence inside it. Watson also testified as follows:

"Q. Did you ever at any time have an occasion to see Dr. Whitt doing any heavy equipment work near that cemetery?

"A. Yeah, I seen him down there around it pushing off around the edge of it.

"Q. Do you remember about when this was?

"A. It was '83, I guess, something like that.

"Q. Sometime a couple of months after he bought the place?

"A. Yeah.

"Q. Did you witness anybody else doing any heavy equipment work around that cemetery about that time?

"A. No sir, weren't nobody else down there.

"Q. Or any other time?

"A. Not around the cemetery.

"Q. Did you ever have a discussion with Dr....