16 S.E.2d 794 | Ga. Ct. App. | 1941
Lead Opinion
The petition in a suit for damages from trespass and injury to a cemetery lot alleged no cause of action in the plaintiff.
Sometimes after the removal of the coping, corner posts, entrance block, and urns from the said lot the plaintiff made a trip to the lot during the latter part of April, 1938. Upon arriving at the cemetery lot, and upon seeing the coping, corner posts, the urns, and entrance block all gone, the plaintiff, humiliated, embarrassed, and mortified at the sight of what had been done, fainted in the lot, and did not regain consciousness for more than an hour afterwards. Upon her return to Atlanta she consulted and was examined by her physician, and has been under his care and treatment ever since. Before and at the time of the commission of the tort by the defendant the plaintiff was in good health and capable of earning as a public stenographer $1500 per annum. Her earning capacity in the year previous to that in which the present suit was filed was reduced to about $600 per annum, and her weight reduced from 155 pounds to 118 pounds, all caused by the tortious acts of the defendant, causing the plaintiff mental and physical pain and suffering directly traceable to the acts of the defendant, and all caused by the wanton and wilful, premeditated and planned acts of the defendant in removing all of the marble coping, corner posts, urns, and entrance block from the cemetery. The defendant has been cold and indifferent to the plaintiff since she lived with the defendant and her husband, the plaintiff's brother, in Atlanta for a number of years, and removed from said home to a house and lot owned by the plaintiff's brother in Atlanta, where the plaintiff is now living and has been living for the past six years, having been put in possession of said house and lot by her brother, Dr. H. L. Flynt, to be used by her for and during such time as she desired to live there. The defendant is mad with the plaintiff because she is occupying the house, and for this reason has been mad with her for the past six years, and before the death of Dr. H. L. Flynt the defendant did all in her power to remove the plaintiff from the premises, and since his death has urged the plaintiff to remove therefrom. She does not speak to the plaintiff, and her animosity *865 towards the plaintiff culminated in the desecration of the Flynt cemetery lot. Judgment was prayed for $50,000, a doctor's bill of $30, a drug bill of $49.34, and $900 as loss of the plaintiff's earning capacity from May 1, 1938, to the date of the suit, $600 as the value of the coping, etc., removed from the lot, and for $750 as exemplary damages. The court sustained the defendant's general demurrer and dismissed the action, and the exception is to that judgment.
1. The petition does not allege facts showing injury to or removal of a monument, marker, or gravestone, or the desecration of the grave, of a deceased member of the plaintiff's family, in which case, after the death of the one who purchased the cemetery lot and caused or allowed such deceased person to be buried therein, the heirs at law of the person to whose memory the monument, marker, or gravestone has been erected may maintain an action for damages (Jacobus v. Children of Israel,
2. Even if the petition had alleged facts bringing the case within the principles ruled in Jacobus v. Children of Israel, supra, cited and relied on by the plaintiff in error, the right to bring the suit would be jointly in all of the heirs at law of the interred persons; and the petition not showing that the plaintiff was the sole *866 heir at law, the suit could not be maintained by the plaintiff alone.
Judgment affirmed. Stephens, P. J., concurs specially.Felton, J., concurs in the judgment.
Concurrence Opinion
I concur in the conclusion that under the allegations of the petition, which are stated at length above, there appears no right, title or interest in the plaintiff in the cemetery lot, and therefore there appears no right of action in the plaintiff against the defendant for damages for the alleged acts of trespass perpetrated by the defendant. Assuming that under the allegations in the petition title in the plaintiff's mother over three years before the mother's death is shown, it does not appear that title was ever transmitted to the plaintiff. The bare allegation in the petition that the plaintiff is heir at law to her mother and is entitled to bring the present suit is not sufficient to show that the plaintiff is the owner of the lot or has any right, title or interest therein.