Opinion
33485.
DECIDED MAY 4, 1951.
Damages; from Fulton Superior Court — Judge Wood. January 10, 1951.
J. Ralph McClelland Jr., John L. Westmoreland, John L. Westmoreland Jr., for plaintiffs in error.
Cullen M. Ward, McLennan Cook, contra.
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 damage 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 redrafted by order of the court.
DECIDED MAY 4, 1951.
Mrs. Caroline Alexander sued West View Corporation and Asa G. Candler Jr. for damages, alleged to have been inflicted by reason of acts of the defendants in destroying flowers and shrubbery on a cemetery lot of the 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, the defendants filed a combination motion to dismiss and motion to require the plaintiff to rewrite the petition and eliminate the parts to which demurrers were sustained. Without passing on the demurrer, the court required a redrafting of the petition. The defendants then renewed the motion to dismiss the redrafted petition. The court overruled the motion, and the defendants excepted to that order and to the rulings to which pendente lite exceptions were preserved. The redrafted petition alleged: that the plaintiff, in May, 1931, purchased from the defendants a 4-grave lot in West View Cemetery and paid $250 therefor; that the plaintiff's mother and brother were buried on the lot; that, immediately thereafter, the 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 the plaintiff'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 the plaintiff 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 the plaintiff went out to the 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 the defendants removed all of the flowers and ivy from her lot; that their removal of every living thing of beauty from her lot was a wilful, wanton, and deliberate desecration of the graves; that agents and employees of the defendants were directed by them 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 the plaintiff's property; that when she 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 of the said Candler was malicious, wilful, vicious, and deliberate, and done with no regard whatever for the feelings of the plaintiff and her family; that the said action of the defendants in removing said ivy and flowers was wilful, malicious, unlawful, and deliberate, and was a plan and scheme of the defendants to strip her lot; that said action of the defendants was without any justification, was arbitrary, malicious, and wanton, and was done without any regard or respect for the feelings of the plaintiff; that, as a direct result of the wilful and tortious acts of the defendants, she has sustained the following injuries and damages: (a) that the flowers and ivy which were on the petitioner's lot and were taken off by the defendants had a reasonable value of $200; that the said tortious acts of the defendants were wilful, malicious, and deliberate, and that the plaintiff is entitled to punitive damages therefor to deter the said defendants from repeating the trespass, and as compensation for her wounded feelings; and that she lays her punitive damages therefor at $25,000.
1. Whether or not one or two separate and distinct causes of action would lie in favor of the owner of the fee or easement in a cemetery lot, one for trespass to the land to recover actual and punitive damages, and one for desecration of graves in which the damage would be to the feelings of the plaintiff (Code, §§ 105-2002, 105-2003), and whether or not one could pursue both causes of action without subjecting a defendant to double damages for wounded feelings, we think that, under the ruling in Flynt v. Flynt, 65 Ga. App. 862 ( 16 S.E.2d 794), the facts alleged are insufficient to show a cause of action for the desecration of graves, but are sufficient to show a cause of action for trespass to the land in favor of one who owns it in fee simple or one who has a burial easement therein. Code, § 26-3001; Phinizy v. Gardner, 159 Ga. 136 ( 125 S.E. 195); Hale v. Hale, 199 Ga. 150 ( 33 S.E.2d 441); McDonald v. Butler, 10 Ga. App. 845 ( 74 S.E. 573); 14 C. J. S. 95, § 36 (b); 172 A.L.R. 554. Such an action lies for the actual damage inflicted plus punitive damages allowable. Code, § 105-2002. See The Law of Cadavers (2d Ed., by Prentice-Hall). Such a case as this is not to be confused with an action brought by the next of kin of those buried in a cemetery after the death of the owner of the title to or easement in the lot, such as Jacobus v. Children of Israel, 107 Ga. 518 ( 33 S.E. 853). The case of Flynt v. Flynt, supra, is not authority for the proposition that an action for a trespass to the land must be brought in the name of the kin of those buried in the lot. O'Neal v. Veazey, 143 Ga. 291 ( 84 S.E. 962), seems to involve an identical action by heirs of the easement owner.
2. There is no merit in the contention that the court overruled the demurrer calling upon the plaintiff to attach her deed to the petition. The petition did not show on its face that the deed contained restrictions or agreements concerning the upkeep of the lots. The demurrer was a speaking demurrer, and the question sought to be resolved is a matter of affirmative defense.
There is no merit in the exceptions to the overruling of the other special demurrers, in view of the elimination of objectionable allegations in the rewritten petition, assuming that they were duly renewed to the petition as redrafted.
The court did not err in overruling the special demurrers which are the subject matter of exceptions, or in overruling the motion to dismiss the redrafted petition on the ground that the action was not brought by all the heirs of those buried on the lot.
Judgment affirmed. Sutton, C. J., and Worrill, J., concur.