Turner v. Joiner , 77 Ga. App. 603 ( 1948 )

1. Irrespective of whether the title to flowers sent to the funeral of a deceased person vests in the heirs at law of the deceased, they have such an interest in them as will authorize them to bring an action for nominal damages, at least, because of a trespass committed in respect to such flowers after they are placed at a grave. This is not an action for trespass to the lot or grave and the rule in such cases as to who must sue does not apply. See Jacobus v.Congregation of the Children of Israel, 107 Ga. 518; Flynt v. Flynt, 65 Ga. App. 864. A petition setting forth an alleged tort and claiming damages generally, and special and punitive damages, also sets forth a cause of action for nominal damages and is not subject to general demurrer. Hall v. Browning, 195 Ga. 423 (24 S.E.2d 392).

2. I concur in the rulings on the special demurrers.

3. Grounds 1, 2, 3, and 4 of the amended motion for a new trial complain of the charge of the court authorizing the jury to find for the plaintiffs if the defendants did not direct or command Roy Wilder, the employee of defendants who removed the flowers from the grave site, but if they ratified the acts of Roy Wilder with knowledge of all the material facts in connection with the transaction. I think that such a charge was error. The evidence was in conflict on the subject, but Roy Wilder, witness for the plaintiffs, testified that he brought the flowers to the back of the shop in the truck and told one of the defendants that he had done so and that one of them directed him to strip the flowers from the stands. The gist of this action is the removing of the flowers from the grave site when they were fresh and beautiful. There is no evidence that a defendant knew that the flowers were still fresh and beautiful when he ordered them removed from the stands and there is no evidence that Roy Wilder removed the flowers maliciously, wantonly or with any improper motive and that the defendants knew of such purpose. Therefore the charge submitted to the jury a question not authorized by the pleadings or the evidence and was error requiring the grant of a new trial. The issue of ratification could not be made by the introduction of evidence which was otherwise admissible. It is only where the evidence is otherwise inadmissible that the rule stated by the majority applies.

4. I concur in the ruling in division 3 of the opinion.

5. The court erred in authorizing the jury to find punitive or exemplary damages for the reason that there was no evidence to authorize it. Even if the testimony of Roy Wilder is accepted, to the effect that another employee of the defendants directed him to remove the flowers three days after the funeral, there is no evidence that such employee or any defendant knew that at that time the flowers were still fresh.

6. The court erred in authorizing the jury to find general damages to be measured by the enlightened conscience of fair and impartial jurors. The only damages sought to be proved were special damages for the value of the flowers, and the only basis for any other kind of damages was that for nominal damages if for any reason special damages were not recoverable.

7. The verdict for $2250 is excessive. Under the facts of this case, flowers given by relatives and friends of the deceased and her family and actually placed at the grave, were given for one specific purpose, as a token of love or friendship, in expression of sympathy, and with the intention that they remain at the grave until their life and freshness had gone. In such case it is never intended that any donee have a pecuniary interest in the flowers themselves, at any time, and while damages might be awarded in an action for vindictive damages for their removal, no action lies for the pecuniary value of the flowers themselves by the relatives of the deceased. Likewise there was no evidence authorizing punitive damages. Only nominal damages for a naked trespass were recoverable.