Brown v. Barlow, 128 Mich. 117

Brown v. Barlow

128 Mich. 117 | Mich. | 1901

Moore, J.

The defendants are the commissioners of the Valley City and Oak Hill cemetery in Grand Rapids. Jared L. Post during his lifetime was the owner of a lot in the cemetery. When he died, about four years ago, he was buried there. The plaintiff is a brother-in-law of Mr. Post. His wife died in 1892. By the,verbal permission of Mr. Post, she was buried upon his lot. Her grave was never marked with a headstone. In 1899 the cemetery authorities needed the lot owned by Mr. Post, because they *118wanted to enlarge a building that was upon the grounds* and directed their superintendent to get the lot if he could. The superintendent saw Mr. Creyton J. Post, the son of Jared L. Post, deceased, and arranged with him for the lot, and under his direction removed the bodies that were buried thereon. The graves of Mr. Post, his wife and children, were all marked with headstones. In August, Mr. Brown learned what had been done, and sued defendants for damages. The court below, among other things, charged the jury as follows:

“As far as the evidence shows in this case, while the-body was interred upon the lot of Mr. Post, at the same time there was nothing which distinguished it as belonging to any one, or that any one outside of the owner of the lot had any interest in it. It is not in evidence here, and the evidence does not show, that the commissioners, had any knowledge that the body of Mrs. Brown was interred 'upon that lot. When they wished to make-improvements, they went to the owner 'of the lot, and got his permission to move the bodies. There is nothing in this case which shows that they were informed, or the sexton was informed, or any employe of the city was informed, that any other body except those belonging to the Post family was interred in that lot. I think that some duty is incumbent upon the plaintiff in this case, as well as upon the defendants. I think there should be something done on his part, whereby the city authorities could take notice as to who was buried there; that he had rights, in the lot that they could take notice of. There was. nothing, as far as the lot itself was concerned, that would give them information that he, or anybody else, outside of the,Post family, had any interest in that lot, or any of the remains that were interred therein. The plaintiff in this case did not even mark it with a headstone, so that there was nothing to show that he had any interest there, that his wife or any member of his family was buried there.”

—And directed a verdict in favor of defendants. The case is brought here by writ of error.

The plaintiff claims that, where a body is removed from-its burial place without notice to the relatives, the latter have a cause of action against the person causing the *119removal; citing a number of cases.1 We are of the opinion that the record does not disclose such a state of facts as to call for the discussion of any legal question. So far as it discloses anything, it shows the title of the lot was in Mr. Post; that all the graves that were marked were the graves of members* of his family. It does not show that either the commissioners or the superintendent had any knowledge, prior to the removal of the body, of the burial upon this lot of any persons except Mr. Post and the members of his family. It was not the.purpose of the trustees to arbitrarily take possession of this lot, but only to do so by the consent of those having an interest therein. The consent of the. person who had the apparent right to give consent was obtained, and the removals were made under his direction. The court below was Justified in directing a verdict.

Judgment is affirmed.

The other Justices concurred.

Viz.: Improvement Co. v. Jenkins, 111 Ala. 135 (18 So. 565, 56 Am. St. Rep. 26); Partridge v. Church, 39 Md. 631; Meagher v. Driscoll, 99 Mass. 281 (96 Am. Dec. 759); Thirkfield v. Cemetery Ass’n, 12 Utah, 76 (41 Pac. 564); Jacobus v. Congregation of Children of Israel, 107 Ga. 518 (33 S. E. 853, 73 Am. St. Rep. 141).