Hale v. Hale

1. The court did not err in admitting evidence that the husband of one of the petitioners contributed to a fund used by a church in purchasing land for cemetery purposes, over the objection that the evidence was immaterial, illegal, prejudicial, and that the church records would be the highest and best evidence; since, on the question of such contribution, the act itself rather than the manner of payment was the essential fact, and on that question either oral testimony or a writing, to show the same, would be admissible. Nor was it error, in the absence of any showing that the church kept a record on such matters, to permit the witness to testify that a lot was set apart to her husband.

2. In a suit to recover damages for interfering with the possession of a cemetery lot, where the petitioners' evidence would have authorized a finding that there had been such a reckless disregard of their rights as to be equivalent to an intentional violation of them, the court did not err in charging the jury on the question of exemplary damages.

3. The evidence was sufficient to support the verdict.

No. 15101. MARCH 7, 1945. Mrs. Mary L. Hale and others filed a petition in Walton superior court against Euel C. Hale, which, as amended, alleged substantially the following: The petitioners are the widow and children of Emmett J. Hale, who, at the time of his death in 1921, owned a described lot in the Mount Vernon Church cemetery, which petitioners inherited as his only heirs at law. In the fall of 1943, Mrs. Euel C. Hale died, and the defendant, without any authority, had her buried in the cemetery lot which belongs to the petitioners. Such act was a trespass, and the defendant has stated that he intends to bury others on the lot, which would constitute a continuing trespass. The reckless disregard of the petitioners' rights by invasion of the sanctity of their cemetery lot has hurt them, caused them worry, and renders the defendant liable for exemplary damages. The petitioners prayed: (a) for process; (b) that the defendant be enjoined from burying anyone else on the lot, and from trespassing on the lot in any way; (c) that the petitioners have a judgment of $500 for damages; and (d) for general relief. The defendant filed an answer, denying the material allegations of the petition and setting forth that a petitioner made the mistake of burying a grandchild on the lot selected and used by the defendant and his brother, Warner Hale.

On the trial, Mrs. Mary L. Hale testified that she joined the Mount Vernon Christian Church when she was around thirteen years old. She married Emmett J. Hale in 1901. He was a member of the church at that time. In 1902 the members of the church, including her husband, contributed to a fund that was used by the church in purchasing land on which the cemetery was located. Within three or four years after the land was so acquired, her husband asked for a lot, and George Cook, who had charge of the cemetery, staked off a lot for him. From the time the lot was set aside to her husband, he kept it cleaned off every year as long as he lived. He died in 1921, and was buried on the lot, after which she and her children took care of it. What she and the children did was public and continuous, so that everybody knew about it. Up to the time when the defendant buried his wife on the lot in the fall of 1943, no one had interrupted the peaceable possession of Emmett J. Hale, or his widow and her children. On discovering the trespass, the petitioners wrote to the defendant that he had buried his wife "in the place reserved for Ruth, by the side of her baby," and requested him to remove the body of his wife. He did not answer the letter, and there is not sufficient room left to bury other members of the family. His action hurt the petitioners very much. It made them nervous and unable to rest at night. Lindsay Powers, sworn for the petitioners, testified that he was a member of the Mount Vernon Church, and for the last ten years he had been in charge of the cemetery. The church authorities did not require any membership as a prerequisite to obtaining a lot, and there were no rules or regulations. A great many members and non-members were buried there. So long as the church had ground to do so, they allowed neighbors to bury their dead there, but now the cemetery lots are all taken up. After the defendant had buried his wife, he asked the witness to help him measure the corners of the Hale lot. The witness did not know at the time that there was any conflict, but became suspicious and refused to assist the defendant in driving down iron stakes dividing two 30-foot squares so as to make three lots 20 by 30 feet. The way in which the defendant "divided it up, it made three 20-foot parts out of two lots."

The defendant testified that his mother had expressed a desire to be buried, when she died, at Mount Vernon, so he together with his brothers, Warner and Emmett, selected a place. Emmett said: "I want all of you to use the lot," and they agreed to have a burial lot there. The defendant and his brother Warner were to have the lot upon which he buried his wife, while his brothers, Emmett and Otis, were to have adjoining lots. The defendant also testified that he kept the lots in condition, and that there was still room to bury other members of the family there.

The jury found a verdict for the petitioners, and awarded damages of $100 against the defendant. The exception is to an order overruling the defendant's motion for a new trial as amended. 1. One special ground of the motion for new trial complains that the court erred in allowing Mrs. Mary L. Hale to testify that her husband contributed to a fund that was used by the church in purchasing the land on which the cemetery was located, and that subsequently a lot was set apart to him. "It is not contrary to the best-evidence rule that oral testimony of a fact in issue may be primary evidence of the fact, although there is also written evidence of the same fact, where the essential fact to be proved is neither the existence nor the contents of the writing, but the existence of the independent fact itself, as to which the writing is merely collateral or incidental. In such a situation the rule requiring production of original writings has no application. 20 Am. Jur. 366, § 405. On a question of payment, while documentary evidence as to the manner of payment, such as a receipt or canceled check, ``would add probative value to the proof relied on to establish the [payment], the act [itself] is the essential fact to be shown.' Armour Fertilizer Works v. Dwight, 22 Ga. App. 144 (95 S.E. 746)." Hicks v. Hicks, 196 Ga. 541 (3) (27 S.E.2d 7). Accordingly, it was not error to admit parol testimony by Mrs. Hale that her husband contributed to a fund used by the church in purchasing the land, over the objection that the evidence was immaterial, illegal, prejudicial to the defendant, and that the church records would be the highest and best evidence. Furthermore, the defendant could not have been hurt by her testimony since the uncontradicted evidence showed that the church authorities did not require any membership as a prerequisite to obtaining a lot, and that there were no rules or regulations. Nor was it error, in the absence of any showing that the church kept a record on such matters, to permit the witness to testify that a lot had been set apart to her husband.

2. Another special ground of the motion complains because the judge instructed the jury: "Now, it is contended by the plaintiffs in this case that the defendant acted in a reckless disregard of the rights of the plaintiffs equivalent to an intentional violation of them, and for that reason the plaintiffs are entitled to exemplary damages. You are instructed that in every 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." The criticism is that the above charge, which stated the provisions of the Code, § 105-2002, was not authorized by the facts and evidence adduced upon the trial, and was harmful and prejudicial to the defendant's cause. "In a suit for damages for wrongfully disinterring a dead body, if the injury has been wanton and malicious, or is 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 the plaintiff may be taken into consideration." Jacobus v.Congregation of the Children of Israel, 107 Ga. 518 (2) (33 S.E. 853, 73 Am. St. R. 141). "One who is the owner of the easement of burial in a cemetery is entitled to recover damages from any one who wrongfully interferes with such right."Phinizy v. Gardner, 159 Ga. 136 (125 S.E. 195). "While it is well settled that for mere negligence one can not recover damages for mental pain and anguish unless there has been damages to person or purse, it is equally well established that for a wanton and wilful tort or for a reckless disregard of the rights of others, equivalent to an intentional tort by the defendant, the injured party may recover for the mental pain and anguish suffered therefrom." Pollard v. Phelps, 56 Ga. App. 408 (193 S.E. 102).

Counsel for the defendant recognizes the above principle, but insists that in the instant case there was "absolutely no evidence of wilful or wanton disregard of the rights of others." The evidence for the plaintiffs tended to show that the Mount Vernon Church acquired in 1902 land to be used as a cemetery; that within three or four years thereafter the church authorities staked off a lot to Emmett J. Hale, which was subsequently inherited by the plaintiffs, and that they had been in peaceable possession of the lot for more than 20 years; that, on discovering the defendant's use of part of their lot, they wrote him that he had buried his wife "in the place reserved for Ruth, by the side of her baby," and requested him to remove his wife's body; that he did not reply to the letter, but attempted to change the markers so as to divide their lot. The above facts, considered in connection with all the circumstances of the case, were, if believed by the jury, sufficient to authorize a finding that there had been such a reckless disregard of the plaintiffs' rights as to be equivalent to an intentional violation of them. Accordingly, the trial judge did not err in charging on the question of exemplary damages.

3. The evidence for the plaintiffs, fully set out in the statement of facts, showed that they, as the widow and children of Emmett J. Hale, had inherited his interest in a 30-foot square which had been set apart to him by the Mount Vernon Church as a burial lot, and had been in peaceable possession of this lot for more than twenty years, during which time members of the family had been buried there; also, that the keeper of the cemetery recognized their right to the lot. There was evidence for the defendant that, instead of setting aside two 30-foot squares, one to Emmett and one to Otis Hale, the church had set apart three 20-by-30-foot lots; and that the defendant had buried his wife on the lot set aside to him and his brother Warner.

In view of the above testimony, it was not necessary for the plaintiffs to have a deed before they could bring the action. "Where one is permitted to bury his dead in a public cemetery by the express or implied consent of those in control of it, he acquires a sort of possession in the spot in which the body is buried." Rivers v. Greenwood Cemetery, 194 Ga. 524, 525 (22 S.E.2d 134). Though conflicting, the evidence was sufficient to support the verdict, and the court did not err in overruling the motion for new trial.

Judgment affirmed. All the Justices concur.