King v. City of Shelby

The plaintiff in this action, C.C. King, brought suit against the defendant, the city of Shelby, for damages for the wrongful removal and re-interment of his mother's body. The case was tried to a jury, and a verdict for the defendant city was returned.

The testimony in the record discloses that the parcel of land upon which the cemetery was located was deeded to the trustees of Sharon township on June 1, 1835, and that the same was deeded for cemetery purposes; that thereafter in the year 1889 the plaintiff in error's mother was interred in the cemetery, in what was designated as tract No. 3; that thereafter the trustees of Sharon township passed a resolution, and in the year 1928 deeded by quitclaim deed all the cemetery property to the city of Shelby, and thereafter the city of Shelby assumed to provide for the upkeep of the cemetery until the same was abandoned by ordinance. The council of the city of Shelby passed Ordinance No. 187, as shown by Defendant's Exhibit B, prohibiting the burying of dead in all the cemetery, including tract No. 3, that portion wherein plaintiff in error's mother was interred, and on the 17th day of December, 1928, said tract No. 3 was sold. In order to carry out said resolution of sale, it was necessary to remove the bodies from tract No. 3, and the director of public service caused a notice of sale to be published in the Shelby Globe, a daily newspaper in the city of Shelby, which publication was made on December 26, 1928, and for five consecutive weeks thereafter, the sale being made to the Shelby Salesbook Company, who entered into a contract with the city of Shelby to remove the bodies from tract No. 3 and to purchase that tract upon the conditions set forth in the contract and as provided for in said published notice, to-wit: "To remove all the bodies and stones marking the graves and provide a place for reinterment, and to notify the relatives and next of kin of any persons buried in Tract No. 3."

The testimony develops that said bodies were removed and interred in the Oakland Cemetery in a careful and respectful manner.

The record in the case does not show that the space occupied by plaintiff's mother's grave in tract No. 3 was ever conveyed by the township trustees, or their successors, to his mother or any of the plaintiff's ancestors, either by deed or by way of easement.

Further, the record fails to show that the plaintiff in error had any interest in the cemetery, or in tract No. 3, as a descendant from any of the original grantors, and in the court below plaintiff did not make any claim that he had any rights in this property in reversion.

Section 4160 of the General Code of Ohio provides: "The title to, and right of possession of, public graveyards, and burial grounds, located within a city, and set apart and dedicated as public graveyards or burial grounds, and grounds used as such by the public but not dedicated, except those owned or under the care of a religious or benevolent society, or an incorporated company or association, are hereby vested in the corporation where such graveyard or burial ground is located."

By virtue of the above section the township trustees were authorized to deed the cemetery property described in the petition to the city of Shelby.

Section 4157 of the General Code of Ohio provides as follows: "Council may prohibit the interment of the dead within the corporation limits, and, for the purpose of making such prohibition effective, may not only impose proper fines and penalties, but shall also have power to cause any body, interred contrary thereto, to be taken up and buried without the limits of the corporation."

It is therefore to be noted that the city of Shelby passed ordinance No. 187 by virtue of the above statute, and there seems to be no contention by the plaintiff that the city had not the right and authority to abandon this cemetery.

The General Code of Ohio further provides in Section 4159: "When a municipality holds land within its limits which has been used as a cemetery or burial ground, and in which interments have been prohibited by such corporation, and it has been decided to remove the bodies interred therein, the council may sell or otherwise dispose thereof, but such sale or transfer shall not operate to give the purchaser possession until the bodies therein interred have been removed, and all monuments and tombstones are removed and re-erected at the place of re-interment of the remains of each person, respectively."

Under the above section it will be noted that it is necessary to remove the bodies before such conveyance is authorized, and from the testimony developed in the record these steps and the procedure taken by the city of Shelby in the removal of the bodies are disclosed. The above section does not provide any method for giving or requiring that notice shall be given to the heirs, relatives, and next of kin before the removal of bodies from an abandoned cemetery located within the corporate limits of a municipality.

The above section is to be distinguished from Sections 3465 and 3466 of the General Code in that the latter two sections, which relate to township cemeteries and private cemeteries, specifically provide that notice must be given. We believe that it would be judicial legislation and not within the province of a court to require notice, in view of the fact that the Legislature specifically omitted that provision in Section 4159, while in Sections 3465 and 3466 of the General Code notice is specifically required.

However, in the instant case the record discloses the fact that notice was given, there being no prescribed form or method. The record shows that the city of Shelby did notify the public at large, and the heirs and next of kin, by publication in the Shelby Globe, a daily paper of general circulation in the city of Shelby, as shown by Plaintiff's Exhibit 1. The testimony further discloses the fact that Mr. King, plaintiff, was a subscriber to the Shelby Globe, and received regularly the issues of the paper at his residence near the city of Shelby; that the first publication of notice in the Shelby Globe was on December 26, 1928. We believe it clearly appears from the whole of the record that the plaintiff had notice of the intention of the city of Shelby to abandon this cemetery, and of its intention to remove the bodies therefrom.

Plaintiff in the court below contended that, by reason of the fact that his mother's body was removed, he suffered mental anguish and was damaged in the sum of three thousand dollars.

We believe it to be the law which should govern this case that plaintiff is not entitled to damages for mental suffering unaccompanied by physical injury, unless the testimony discloses such facts as to indicate that the injury or wrong was of such a character and done under such circumstances as to furnish a right of action against the wrongdoer for damages.

The record fails to disclose, nor is there any testimony to show, any privity of contract between the plaintiff and the city of Shelby; nor does it disclose any insults or discriminations inflicted upon the plaintiff, or that he suffered any loss of social position or standing in the community, or that there was any intentional, willful, wanton, or malicious act done to injure plaintiff.

Ohio Jurisprudence, volume 13, page 163, Section 80, states: "Ohio Courts are clearly opposed to the recovery of damages for mental anguish or suffering unattended by physical injury."

Many Ohio cases might be cited in support of this proposition, among which are found Miller v. B. O.S.W. Rd. Co., 78 Ohio St. 309, 85 N.E. 499, 18 L.R.A. (N.S.), 949, 125 Am. St. Rep., 699;Mancusco v. Cleveland Ry. Co., 23 Ohio App. 493, 155 N.E. 243;Ohliger v. Toledo Traction Co., 3 C.C. (N.S.), 369, 13 C.D., 557.

Damages in such cases, if found, depend largely upon the extent of injury, and, indeed, the very existence of any injury must be largely speculative and conjectural. Damages in such causes are too remote, uncertain and speculative.

We have carefully noted the charge of the trial court in this case and we find that the court plainly, clearly and explicitly charged the jury upon the issues and the law pertaining to the case, and we believe the court allowed a wide latitude for the jury to guess from the uncertain mass of testimony as to the amount that plaintiff in error might be entitled to by way of damages. We note, on page 96 of the charge, the court says:

"If you find in his favor, the plaintiff will be entitled to recover damages in whatever sum or amount you think in your good judgment he is fairly and reasonably entitled to on account of mental anguish and suffering, if any, which you find upon the evidence the plaintiff has suffered, as the true, proximate and mental result of the injury complained of."

The jury having found by their verdict that the plaintiff in error was not injured, and had not suffered any mental anguish, we are not inclined to disturb their finding or verdict. It therefore follows that the finding and judgment of the court below will be, and the same is hereby, affirmed.

Judgment affirmed.

SHERICK, P.J., and MONTGOMERY, J., concur.