Wright v. Hollywood Cemetery Corp.

• Decision Date: 01 March 1901
• Citation: 112 Ga. 884,38 S.E. 94
• Parties: WRIGHT et al. v. HOLLYWOOD CEMETERY CORP. et al.
• Court: Georgia Supreme Court

38 S.E. 94

112 Ga. 884

WRIGHT et al.

v.HOLLYWOOD CEMETERY CORP. et al.

Supreme Court of Georgia.

March 1, 1901.

CEMETERIES—RIGHT OF BURIAL—INTERFERENCE—TORT—RIGHT OF ACTION—DAMAGES.

1. The right of sepulture in a given cemetery lot existed as to a decedent whose deceased parent was, while in life, the owner thereof, and who, as heir at law of that parent, inherited an undivided interest in the lot.

2. A grandmother, with whom a grandchild having no living parent resided at the time of such grandchild's death, had the legal right to cause the body to be buried in a lot wherein there was, relatively to the decedent, a lawful right of sepulture.

3. A brother of the decedent, though a minor, had the right to participate with the grandmother in causing such burial to be made.

4. An unlawful and unwarranted interference with the exercise of such right of burial was a tort, which gave to the grandmother and brother a cause of action against the wrongdoer, and they were entitled to maintain the same without joining with themselves as a party plaintiff a nonresident sister of the decedent who was not present when the attempt to bury the remains was made.

5. In a suit for an unlawful and unwarranted interference with the exercise of such a right of burial, if the injury inflicted upon the plaintiffs was wanton and malicious, or the result of gross negligence, or a reckless disregard of the rights of others, equivalent to an intentional violation of them, exemplary damages may be awarded, in estimating which the injury to the natural feelings of tie plaintiffs may be taken into consideration.

6. When, upon the hearing of a demurrer to a petition, the court passed an order in effect striking a portion thereof, and limiting the plaintiffs' right of recovery to specified items, their right to except to such order was not lost because they consented to so much of a verdict which the court directed in their favor as related to the amount they were entitled to recover upon such items.

(Syllabus by the Court.)

Error from superior court Fulton county; J. S. Candler, Judge.

Action by Jaue Wright and James Carlton against the Hollywood Cemetery Corporation and C. M. Curran. From the judgment plaintiffs bring error. Reversed.

B. J. Conyers and L. R. Ray, for plaintiffs in error.

Arnold & Arnold and H. H. Dean, for defendants in error.

FISH, J. Jane Wright, and James Carlton, a minor, who sued by his next friend, Jane Wright, brought suit against the Hollywood Cemetery Corporation and C. M. Curran. The petition made substantially the following case: On the 11th of February, 1893, Annie Carlton purchased of the Hollywood Cemetery Company a certain described lot in Hol lywood Cemetery, "for a burial place for herself, her children, and the members of her family, and received a deed of conveyance to the same." She died in December, 1894, and her body was buried in said lot In December, 1897, the Hollywood Cemetery Corporation purchased "the land and lots in said cemetery belonging to said Hollywood Cemetery Co. on November 3, 1897, and which had not been previously sold by" the latter company; "and at once assumed the control of said cemetery, the care of the same, and assumed to itself the privileges and right to dig the graves for all bodies to be buried therein, and charge for the same." The defendant Curran is a stockholder in the defendant company, the owner of lots in the cemetery, and was, at the time of the wrongful acts complained of, "acting agent for said corporation." Upon the death of Annie Carlton, the title to the lot in the cemetery which she had purchased vested in her children, Ludie Carlton, James Carlton, and Isabella Carlton Doyle. After the death of their mother, Ludie and James Carlton made their home with the plaintiff Mrs. Jane Wright, their grandmother and the mother of Annie Carlton. Ludie Carlton died on the 30th of March, 1898, at the home of Mrs. Jane Wright in the city of Atlanta, Ga. "By reason of the near relationship, and the fact that she resided with * * * petitioner Mrs. Jane Wright during life, and was under her care and protection, * * * petitioners became entitled to the possession of the body of said Ludie Carlton for the purpose of interment and the duty and responsibility devolved upon [them] to give to it a Christian burial." On the 31st of March, 1898, petitioners notified the defendant corporation of the death of said Ludie Carlton, and of their purpose to bury her body in said lot by the side of the body of her mother, and on that day contracted with the defendant corporation "to dig and prepare the grave in said lot" paying in advance for the same. "The Hollywood Cemetery Corporation at the time well knew that said lot had been previously sold to said Annie Carlton, that her body was buried in the same, and that the title to said lot was in her children, and that * * * petitioners had the right to bury the body of * * * Ludie Carlton in the said lot." On April 1, 1898, the petitioners, with the corpse, and a funeral procession composed of friends and relatives, proceeded from their home to said cemetery, a distance of about six miles. On arriving at the cemetery, "defendants wrongfully refused to allow said funeral procession to enter said cemetery, and rudely and heartlessly notified * * * petitioners that the body of said Ludie Carlton could not be buried upon said lot although the grave had been prepared to receive the same." The "petitioners, being greatly grieved and perplexed, were at a loss to know what to do with the body of the grandchild and sister, and were finally forced to seek out a distant Burial [place], and lay said body in a pauper's grave, among strangers." "By reason of said wrongful acts, * * * petitioners were greatly pained and mortified, their feelings hurt, and they were humiliated in the presence of their friends and others." The petition alleged that, by reason of these wrongful acts of the defendants, the plaintiffs had been injured and damaged in the sum of $2,000, and, in addition thereto, set out, as actual damages claimed, certain amounts as the cost of digging the grave, cost of conveying the body to the cemetery, and for time lost in finding another grave. There was also a prayer that the defendants be permanently enjoined from interfering with or preventing the burial of the body of Ludie Carlton upon the lot in question, or the burial of any of the heirs at law of Annie Carlton therein, or the bodies of any other persons who might rightfully be buried therein. By an amendment, it was alleged that, at the time the lot was purchased by Annie Carlton, the cemetery was laid off in avenues, driveways, and walks, and the lot fronted upon one of said ways, and that the petitioners and the funeral party had the legal right to pass over said ways, for the purpose of reaching said lot, and burying the body of Ludie Carlton therein, and that the defendants wrongfully took possession of the entrance to the cemetery, its avenues, driveways, and walks, and refused to allow petitioners and denied to them the right to pass over the same for the purpose aforesaid. It was further alleged that on the 31st of March, 1898, the petitioners, being in possession of the lot, gave to the defendants authority to enter therein for the purpose of preparing the grave, and the defendants, having entered the lot for this purpose, wrongfully held the same, and refused to allow petitioners and denied them the right to enter the lot for the purpose of burying the body of Ludie Carlton therein, but, with a show of force and without authority of law, held the same against petitioners until they were turned away from their family burying ground. It was also alleged that there never had been any administration upon the estate of Annie Carlton, and that Isabella Carlton Doyle was at the time of said wrongful acts a nonresident, was not present with the funeral procession, nor then a resident of the county.

Each of the defendants demurred to the petition, upon the grounds (1) that it contained no grounds for relief, legal or equitable; (2) there was a misjoinder of parties plaintiff; (3) the plaintiffs could not alone maintain the suit "there being a nonjoinder of other parties, as the petition discloses, equally or more interested than petitioner"; (4) "the damages sought to be recovered are not recoverable, because too remote and contingent, and because damages for pain and suffering, mental anguish, and such items as are sued for in said petition are not recoverable in this action."

Before the court passed upon the demurrers, "the plaintiffs moved to make Isabella Carlton Doyle a party plaintiff, and, to that end, presented her petition in the following words: 'And now comes Isabella Carlton Doyle, sister and next of kin to said Ludie Carlton, and prays to be made a party plaintiff in said suit' " This motion was denied by the court

Upon the demurrers the court rendered the following judgment: "Upon demurrer, this suit as amended is dismissed, except so far as the plaintiffs seek to recover the costs of digging the grave, the cost of conveying the body to the cemetery, and the lost time in finding another grave." To this judgment the plaintiffs filed exceptions pendente lite. "On the trial, the jury, by direction of the court rendered a verdict * * * in favor of the plaintiffs for $11.50, besides costs and witness fees, by consent as to amount and costs. The defendants consented to direction of verdict without any qualification at all."

1. Taking the allegations of the petition to be true, the defendants had no right whatever to prevent the interment of the remains of Ludie Carlton in the lot in Hollywood Cemetery where the plaintiffs sought to bury them. In February, 1893, Annie Carlton, the mother of Ludie Carlton, purchased this lot from the Hollywood Cemetery Company, the then owner of the cemetery grounds, "for a burial place for herself, her children, and the members of her family,...