Maude Gray Wilson, plaintiff below and appellee here, brought action against appellant, Smith and Gaston Funeral Directors, Inc., to recover damages growing out of an alleged trespass upon the grave of plaintiff's husband. The suit was commenced on January 24, 1952.
The case was tried on counts A, B, C, D, E, and F which charge the defendant with trespassing upon a lot or plot of land in the Grace Hill Cemetery in which plaintiff's deceased husband, Eli Gray, was buried in 1937. The suit seeks recovery of damages for mental anguish as well as punitive damages.
For the purposes of this appeal, it may be said that the counts, in substance, aver that the defendant, through its servants, agents and employees, while acting within the line and scope of their employment and authority as such, during the months of May, June, July, August and September, 1950, willfully, wantonly and intentionally trespassed upon the said grave lot and disturbed, desecrated and obliterated the said grave and its marks of identification. The jury returned a verdict in favor of plaintiff for $500. This appeal is from the judgment of the circuit court rendered pursuant to said verdict. There was no motion for a new trial.
It appears from the evidence that Grace Hill Cemetery was acquired by defendant in 1948; that for many years prior to that time, the care of the cemetery had been
It further appears that Grace Hill Cemetery has been in operation for more than sixty years; that it consists of about 25 or 30 acres west of Montevallo Road and south of Elmwood Cemetery, in Jefferson County, and is divided into five sections known as A, B, C, D, & E; that it consists of a great number of small burial plots or sites; that Eli Gray was buried in Section E, where only single graves were sold; that the other sections have block and lot numbers, evidencing, as we understand it, plots for multiple burials. Although privately owned, it is our view that it is properly classified as a "public cemetery", in contrast to a "private cemetery", and we have so dealt with it here. Smith and Gaston Funeral Directors, Inc. v. Dean, Ala., 80 So.2d 227.
It further appears that plaintiff did not get a deed to Eli Gray's burial site but that said site was given a grave number for which she paid $15. It further appears that in 1938 the plaintiff had a concrete slab erected over Eli's grave for which she paid $35. The slab showed the name "Eli Gray", together with the date of his birth and death. Plaintiff testified that this grave was located near a sweetgum tree; that she visited the grave three or four times a year; that the last time she saw it in good condition was in 1949; that she attempted to locate the grave after her daughter's death in 1951; that on this occasion the concrete marker and the sweetgum tree were gone; that the ground around the grave had been pulled down and torn up; that she could not identify the spot where her husband was buried; that she bought the lot through the undertaker and picked out the lot herself; that in paying for the funeral, there was an additional amount added to pay for the grave and that the undertaker handled it as a matter of convenience for her.
The questions presented on this appeal are stated in appellant's brief to be as follows:
The answers to questions II and III have, we think, been sufficiently dealt with in the case of Smith and Gaston Funeral Directors, Inc. v. Dean, Ala., 80 So.2d 227. We there held against appellant's contentions and see no need for further discussion of these two questions here.
To a certain extent we have also, in the same case, answered question No. I. In that case the claim was for punitive damages only. There was no claim for mental anguish as in the present case. The problem now presented is to determine whether the present action is one in case, rather
That mental anguish is recoverable in an action of trespass to property committed "under circumstances of insult or contumely" is well recognized. B. F. Goodrich Co. v. Hughes, 239 Ala. 373, 379, 194 So. 842, 847; Louisville & N. R. Co. v. Fletcher, 194 Ala. 257, 259, 69 So. 634; Mattingly v. Houston, 167 Ala. 167, 52 So. 78. See, also, Bessemer Land & Improvement Co. v. Jenkins, 111 Ala. 135, 151, 18 So. 565, 569, 56 Am.St.Rep. 26, where, in an action of trespass quare clausum fregit for removing a body from a grave, it was held:
But the claim for mental anguish in connection with a claim of general damages for a trespass and for punitive damages does not change the nature of the suit from being that of a trespass to one in case.
Since the question is not now presented, we pretermit discussion of what the rights of plaintiff's and Eli's children and other heirs at law would have been, had they been, at the time of the trespass, tenants in common of the possessory right to Eli's burial site. As noted in Smith and Gaston Funeral Directors, Inc. v. Dean, Ala., 80 So.2d 227, supra, only three of the justices joined in the specially concurring opinion in the Holder case, supra, and we do not now wish to be understood as passing on the question there discussed.
The judgment appealed from is due to be, and is, affirmed.
LIVINGSTON, C.J., and LAWSON and SIMPSON, JJ., concur.