52 N.Y.S. 1097 | N.Y. App. Div. | 1898
Lead Opinion
By the verdict in this case the defendant corporation has been held to be chargeable with negligence, in allowing poison ivy to grow upon the grave of the plaintiff’s husband, in Cypress Hills Cemetery, so that the plaintiff was severely poisoned by such ivy in June, 1895, while she was engaged about the grave in planting flowers. The evidence that the plaintiff’s sufferings were actually ' caused by ivy poisoning was rather meagre. The physician whom she consulted at the time testified that he treated her but once for the trouble of which she complained, which was an inflammation of the skin; and that while whatever he told her was right, he had no recollection at the trial in -regard to what he did say to her. He
The grave of the plaintiff’s husband is situated in a part of Cypress Hills Cemetery known as Locust Grove. The superintendent describes it as the public ground in which persons buy graves for twelve dollars each. According to his testimony the cemetery does not own the soil, the purchasers buy the graves out and out, and they have jurisdiction themselves over the grave.” In this view of the legal relation of the parties, the witness was in error, as it appears that the plaintiff received a mere ticket of interment. The position of the plaintiff, as the purchaser of the grave,.was analogous to that of the owner of a church pew. (Buffalo City Cemetery v. City of Buffalo, 46 N. Y. 503.) She had acquired the right to use it for a certain purpose and the right of access to it, under such rules and regulations as the corporation was empowered by law to establish. Among other things, ,the statute authorizes such a corporation as the defendant “ to regulate the introduction and growth of plants, trees and shrubs, within the cemetery grounds.” (Laws of 1874, chap. 245, § 4.) In. the so-called public ground, where this grave was, the corporation only mows and cleans up “ the whole ground all over, including the ground between the graves,” once or twice a season as occasion requires, and nothing more is done there except to 'particular graves which the association is specially paid to care for.
Having regard to the control which the law gave to the corpora>tion, and which it actually exerted within the limits of the cemetery,
Assuming, however, that the defendant’s representatives in the management of the cemetery knew that poison ivy was likely to be, harmful to a considerable proportion of the persons who might be unfortunate enough to touch it, the extent of their duty, as it seems to me, was measured by the obligation to exercise reasonable care to prevent the presence of the plant about or among the graves.' The corporation certainly was not an insurer against its appearance in places where it might do injury. The association was only bound to do what an ordinarily prudent person would do to avert danger from this source. There is no suggestion that the corporation was' cultivating poison ivy in the cemetery. There is no evidence of actual notice to the association that poison ivy was growing on the grave of the plaintiff’s husband until after the visit at which she says she was poisoned. ISTor do I think that the proof is sufficiently strong to charge the defendant with constructive notice that it was. there. The superintendent admitted that there was some poison ivy in the unimproved part of the cemetery, but that appears to be a. wholly different locality,‘where it could do no harm to visitors.. Another witness said he had been poisoned .by poison ivy in this.
I am of the opinion,- therefore; that no liability -should be imputed to the defendant upon the - facts' disclosed by this record. I concur fully, however, with the conclusion of Mr. Justice Woodward, that -the defendant cannot be held exempt from responsibility for the negligence of its agents and servants on the ground that it is a char- ■ itable corporation, and in the reasoning by winch he reaches that result. The .difficulty that I find with the judgment here is that the defendant is not shown to have violated the rule of reasonable • -care, which I think is all the law imposed upon it.
The courts' should be extremely 'cautious, it seems to me, not to lay down any new rule or. enlarge any old one' so as to extend the liability of those who own-or Control land, for the presence of poisonous plants upon their property. So far as I know, poison ivy (rhus toxicodendron.) and poison sumach (rhus venenata) are the only common plants in the eastern United States which are poisonous to..the touch. Poison sumach grows chiefly in swampy places where its inaccessibility prevents persons from approaching it with anything like the frequency with which they -may. encounter poison ivy. The latter is one of the commonest forms of vegetation to be met with in this part of the State. It abounds in the second judicial district, and in Rockland county in the autumn the stone walls for miles in the country around the court house are clothed with poison ivy, and to some extent beautified by the colors of the foliage.
I am in favor of a reversal of this judgment.
Cullen, J., concurred; Woodward and Hatch, JJ., dissented.
I do not find inyself in accord with the views expressed by Mr. Justice Woodward. The first subject to be decided is the relation of the parties to each other and the liability springing therefrom. There is no deed of the burial plot set out in the record. The plaintiff testified: “ My husband was buried in 1891 in the public ground. I purchased the grave there. * * * I never paid the cemetery anything for taking care of the grave. I paid a dollar for sodding the grave and a dollar for sodding my daughter’s also.”
During the examination of the plaintiff the court asked the defendant’s counsel, “ What is your claim, that they (the grave owners) had to take care of their graves ? ” and the counsel answered “ that they had to at that part of the cemetery.” “ Q. (By plaintiff’s counsel) Were any weeds growing about the grave, from;other graves or around about that extended to your grave? [Objected to as immaterial and irrelevant. Objection overruled and exception.] A. It was weeds all over. The Court: That does not answer the question. Strike it out. He is asking you now whether anything growing on other graves extended, over on this grave of your husband. [Objected to. Objection overruled and exception.] A. Yes, sir. * * * I saw shrubs, vines and other kinds of foliage growing about the other graves which extended towards my grave, -x- -x- -x- They were growing over on my grave and I brushed them aside for the purpose of planting my own .plants.”
Mr. Butt, the superintendent of the cemetery, testified: “It (plaintiff’s lot) is located in the part of the cemetery known as Locust Grove. It is in the public ground ; some people buy single graves there, for which they pay the sum of twelve dollars. * * *
The plaintiff,' being recalled, testified : “ I never had any conversation with Mr. Butt, the witness for the defendant, about the care of this lot. I never paid, him any money. I gave a dollar for having the grave sodded.”
The “ ticket of interment ” and the “ receipt,” which were offered in evidence, afford no light on the subject, except that the latter contains the following: “ Cemetery charges $12.00,” and “ Received Payment, J. T. Runcie Q for Superintendent.”
At the close of the plaintiff’s case the defendant moved for a’non-■suit, and renewed the motion at the close of the whole evidence, on the ground, among others, that it appeared “ that the. defendant had -not agreed to take any charge or care of the grave ; all that it did do was to sod it. So that it was no fault on the part of the defendant if poison ivy was growing there.” The motion was denied, and the defendant excepted.
The defendant asked the court to charge “ that there is no evidence tending to show any fault or neglect on the part of the defendant,” and the court said : “ That I decline to charge, and leave it for the jury to determine as a question of fact whether there is or not.” Thus the question is fairly presented to us : What is the duty •of a cemetery association to persons whose dead are buried in its grounds and who have purchased either a burial.lot or a right of interment, in respect to keeping out dangerous plants of wild growth ■irom the surface of .the graves ?:
It is true that the plaintiff was not a trespasser,'but was of right upon the premises. It may- be conceded that she was not a “ mere licensee,” but was an “ invited person,” to whom the owner of land clearly owes a greater duty than to a “ mere licensee.”
The United States Supreme Court in the leading case of Bennett v. Railroad Company (102 U. S. 577) adopts the statement of Mr. Cooley, in his admirable work on Torts, where he says that when one “expressly or by implication invites others to come upon his premises, whether for business or for any other purpose, it is his duty to be reasonably sure that he is not inviting them into danger, and to that end he must exercise ordinary care and prudence to render the premises reasonably safe for the visit.” ' (*604-*607.) - In this case the defendant had left open hatch holes into one of which the plaintiff, a passenger going to a train of the defendant, fell and received injuries from which on demurrer the court held the defendant responsible, as the “ demurrer concedes that the company was well aware, as' well of the condition of the hatch holes in the depot floor as that such condition was unsafe and dangerous to the traveling public.”
But in the case at bar there is no evidence that the defendant either knew of the existence of the poison ivy at or upon the grave
We may by way of analogy also resort to the liability of a landlord to a tenant, which was the subject' of investigation in Sutton v. Temple (12 M. & W. 52), where the defendant “ took the eatage' of a field ” from .the plaintiff, called in the written memorandum “ twenty-four a,cres of eddish,” at a stipulated rent. The defendant turned in his cattle to feed, and several died from poison from a heap of manure which lay open in the field and in which were large quantities of refuse paint. There were found also, scattered all over the land, minute particles of old paint which had been spread with the manure before the lease. The defendant, surrendered the premises and refused to pay the rent, and the action was commenced for its recovery, but. she was held liable. Lord Abinger, C. B., of the Court of Exchequer, said: “The action is brought for the fulfillment of a certain contract applicable to land, viz., for the eddish or eatage of a field — that is, the use of the herbage to be eaten by cattle — for a certain time. * *' * It is not suggested that the plaintiff (the landlord) had the least knowledge of the cause of this injury when she let the land. Now, it is said that there was, under these circumstances, an implied warranty on the part of the plaintiff, that the eatage was wholesome food for cattle. But I take the rule of law to be, that if a person contract for the use and occupation of land for a specified time, and at a specified rent, he is bound by that bargain, even though he took it for a particular
If the defendant had set “ a snare,” as the Court of Appeals said in Beck v. Carter (68 N. Y. 283), or if the defendant had set up a dangerous instrument like a spring gun or a man trap,, it w.ould, undoubtedly, be liable for damages resulting to a person lawfully on the ground; but this is very different from holding the defendant bound to keep the premises free from a natural vegetable growth which is common over the whole country, and does not injuriously and alike affect all persons. The evidence shows that some are injured by it and some are not. There is no evidence in the record of any general knowledge of the dangerous character of poison ivy, and I do not think that we should resort to citations from scientific books to assist us in holding the defendant liable for the plaintiff’s injuries, when the evidence shows that it is not uniformly dangerous to all persons who come in contact with it. Inasmuch, however, as Mr. Justice Woodward has referred to such publications, it may hot be amiss to say that I find good scientific authority as to the fact that poison ivy is not uniformly injurious.
Appleton's Encyclopaedia says: “ The juice and effluvium frpm the plant exert a poisonous influence to which many persons are extremely sensitive, while others are not at all affected, even by chewing the plant.”
The Century Dictionary says: “ It poisons many persons, either by contact or by its effluvium, causing a serious cutaneous eruption with intense smarting and itching.”
According to these authorities, not all persons are injuriously affected by the plant; but, in order to affirm this judgment, we must be prepared to hold that the defendant was under obligation to remove and eradicate a natural vegetable growth common to all parts of the country, and which, as the evidence shows without contradiction, can be destroyed only with the greatest difficulty, is of rapid growth,
I cannot feel called upon to extend the doctrine of negligence to the length which an affirmance of this judgment requires. It would certainly be anew growth upon the accepted-doctrine of negligence, quite as dangerous as the plant under consideration. I prefer that the court of final resort shall assume a responsibility so grave and far-reaching in its results.
Neither can it be said that the defendant is liable as for the maintenance of a nuisance. Cooley on Torts (*601), cited in Bennett v. Railroad Co. (supra), under the chapter on nuisances, says : “ The liability in any such case must spring from negligence, and, therefore, if the injury arises from some danger not known to the owner, and not open to observation, he is not responsible, because he is not in fault.” And *611: “ A party who comes into possession of lands as grantee or lessee, with a nuisance already existing upon it, is not, in general, liable for the continuance of the nuisance until his attention has been called to it, and he has been requested to abate it. ‘ This rule is very reasonable. The purchaser of property might be subjected to very great injustice if he were made responsible for consequences of which he was ignorant, and for damages which he never intended to occasion.’ ”
There is no evidence of any such, notice to or knowledge ón the part of the defendant; and if the condition of the premises made it a nuisance that condition should have been proved to have been brought to the knowledge of the defendant, or evidence given sufficient to amount to constructive notice, before any recovery can be had in this action. On the contrary, the superintendent of the cemetery testified that neither he nor the defendant corporation had any notice or knowledge that there was any poison ivy on the grave in question, while the evidence shows that the plant spreads very, rapidly. And it may be observed that as soon as this action was.
The evidence, moreover, is not satisfactory to my mind that the plaintiff’s injuries resulted, to the extent sworn to, from poison ivy on the defendant’s premises. The plaintiff and her physician are at variance as to their evidence on the subject of his attendance and other matters, and I have very serious doubts whether the verdict ought not to be set aside as against the weight of evidence.
Dissenting Opinion
The husband of the plaintiff in this action died in 1891, and was buried in what is known as the public ground of the defendant, the plaintiff purchasing the right to make such interment. In the month of June, 1895, after an absence from the grave of something like two years, due to the illness of a daughter and other demands upon her time, the plaintiff visited the cemetery of the defendant, making some improvements upon the grave of heríate husband, and. planting thereon certain flowers and shrubs. In doing this, she was obliged to remove a growth of- weeds, etc., which had accumulated upon the grave. Soon after doing this work, and while on her way home, she experienced irritating pains in her fingers, along her arm and upon her side and neck. These growing worse, she visited a physician, and was told that she was suffering from poison ivy poisoning. She "was treated for this for a period of more than one year, and at the time of the trial of' this action she continued to suffer from the effect of this poisoning, causing her to lose much time from her usual vocations. The evidence produced upon the trial tended to establish the fact that this poisoning was received while the.plaintiff was engaged in decorating the grave of her late husband; that it resulted from contact with poison ivy, and that the defendant had notice of the actual presence of this poisonous vine within the cemetery, if not at this particular point. It was established that the plant is of a comparatively slow growth, creeping over large spaces, and that within a few weeks of the time that the plaintiff planted the flowers, leaves, of the poison ivy were found upon the grave of the deceased, indicating that the roots had not been destroyed, and that the plant must have been there at the time that the plaintiff visited the grave. This action is brought to
It is contended on the part of the plaintiff that the defendant, in accepting her money for the price of the burial lot, and in constructing walks, drives, etc., and in throwing the grounds open .to the public, invited her to enter, and that while so within the grounds for a lawful purpose the defendant was under obligations to see that she was not injured by reason of its own negligence., “ When the owner of land expressly, or by implication, invites a person to come upon his land,” say the court in the case of Beck v. Carter (68 N. Y. 292), “ he cannot permit anything in the nature of a snare to exist thereon which results in injury to the person who avails himself of the invitation, and who, at the time, is exercising ordinary care, without being answerable for the consequences; ” and this is undoubtedly the rule.of law, in so far as this aspect of the case is concerned. The plaintiff being upon the grounds of the defendant by its invitation, for a lawful purpose, had a right to assume that all of the steps necessary to insure her reasonable safety had been taken by the defendant, and that she was not bound to know that the weeds which she found upon the grave of her late husband were poisonous to the touch and a menace to her health.
It is -urged, however, that as the plot in which this grave was made belonged' to the plaintiff, it was her duty to care for and remove this poisonous weed or plant, and that a failure on her part to do so constituted contributory negligence. While this would be true were she the owner in fee simple of the property, the case is presented in a different light when we consider the nature of the property which the plaintiff has in this' plot. It is provided by section 4 of chapter 245 of the Laws of 1874, amending the act under which this defendant is incorporated, that .such associations' shall have power to “ regulate the introduction and growth of plants, trees and shrubs within the cemetery grounds. Such rules and regulations, when adopted, shall be binding upon all lot owners and persons visiting said cemetery grounds, and shall apply to all lots and parts of lots sold or hereafter to be sold.” The association, therefore, is in control of the grounds; it may “ regulate the introduction
There were facts enough before the jury to justify the finding' that the plaintiff came in contact with the poison ivy while engaged in lawfully decorating the grave of her late husband; that the poison ivy had been allowed to grow in the pathways' and over the grave; but the evidence of the character of the plant is not as strong as might be desired, and it becomes necessary to consider whether poison ivy is of such a dangerous character that the court will be justified in taking judicial notice of its poisonous nature. It will be conceded that if the cemetery association permitted the development pf a den of rattlesnakes upon its premises, with notice of the fact, it would be liable for any damage which might result from the presence of these reptiles; the court would take, judicial notice of the fact that rattlesnakes are poisonous, and would hold the association which invited people to its grounds liable for the negligent maintenance of these snakes. Is there any difference, except in the
In the only cases bearing close analogy to the one at bar, .the
Continuing, in the same case, the court say : “ It does not appear from the case what evidence was given in the County Court to prove either that the defendants knew that yew trees were poisonous to cattle, or that the fact was common knowledge amongst persons who have to do with cattle. As to the defenda/nOs knowledge, it would be immaterial, as, whether they knew it or not, they must be held responsible for the natural consequences of their own act. It is, however, distinctly found by the judge : ‘ The fact that cattle frequently browse on the leaves and branches of yew trees when within reach, and not tmfrequently are poisoned thereby, is generally known,’ and by this finding, which certainly is in accordance with experience, we a/re bound.”
In the case of Lambert v. Bessey (Sir T. Raym. 421), cited in support of the above, the defendant pleaded that he had land adjoining the plaintiff’s close, and upon it a hedge of thorns ; that lie cut the thorns, and that they ipso invito fell upon the plaintiff’s land, and the defendant took them off as soon as he could. On demurrer, judgment was given for the plaintiff, on the ground that, though a man do a lawful thing, yet, if any damage thereby befalls another, he shall be answerable if he could have avoided it.
In the case of Gibbs v. Ccoykendall (39 Hun,- 140) the plaintiff hired defendant to pasture cattle on his farm, and they there fell sick and died of Texa-ii fever which they contracted from the-dejections of Texan cattle previously pastured there. The plaintiff did not know of the previous pasturing, and the defendant did not know of the danger, of contracting this disease. It was held in this case that the defendant was not liable because he had been guilty of no negligence. Justice Haight, in delivering the opinion of the court, says : “An agister of cattle is a bailee for hire, and as such is bound to use ordinary diligence properly to care for and protect the cattle placed in his charge, and is responsible for loss occasioned by his negligence. * * * But he is not an insurer of the property, and unless he is guilty of negligence he would not be liable for injuries that may be suffered through other causes, and over which he has no control. * * * Again, it is claimed that he ought to have
In the case of Smith v. Baker (Cir. Ct., S. D. New York; 30 Alb. L. J. 433), where the defendant had taken her children, who had the whooping cough, into the house of the plaintiff, who kept boarders, thus spreading the disease and causing the plaintiff trouble and expense, it was held that the defendant was liable for damages. Discussing the case the court say : “ A person sustaining an injury not common to others by a nuisance is entitled to an action. (Co. Litt. 56a.) Negligently imparting such a disease to a person is clearly as great an injury as to impute the having it, and negligently affecting the health of persons injuriously as great a wrong as so affecting that of animalsP
Section 70 of the Highway Law (1 R. S: [9th ed.] 692) makes it the duty of every person or corporation owning or occupying real estate abutting on a highway to destroy the noxious weeds within the highway twice during the summer, and no person is to be permitted to place any such noxious weeds, or the seeds of the same, within the highway. Other sections provide that the supervisors, overseers of highways, railroad and canal corporations shall have power, and shall be obliged to remove such weeds, and while this does not mention poison ivy in words, nor impose a special duty upon the cemetery association in so far as. the interior of its
It was in evidence in the case at bar that “ the books report that people can be poisoned by this ivy by exhalation as well as by contact with it.” This was admitted without exception, and was not disputed by any evidence offered on the part of the defendant. Again the plaintiff testifies, without exception, that the doctor whom she employed told her that “ I was poisoned with ivy.” Charles E. French testifies that he was poisoned by poison ivy in this same cemetery on Decoration day iin 1891, and'this was admitted without exception. Taking this evidence in connection with the common knowledge of the people of this State of the poisonous nature of this plant, we are satisfied that the jury was justified in finding that the Cypress Hills Cemetery was negligent in allowing it to creep over the grave of the plaintiff’s husband, where she came in contact with it while lawfully upon the premises of "the cemetery corporation by its invitation.
It is urged, however, that “ the defendant, being a rural cemetery corporation organized under the act of 1847, and not a stock corporation carrying .on business for the. purpose of profit, is not responsible for the negligent acts of its employees, and for. this reason this action" will not lie.” In support of this proposition, which, in so far as we are able to discover, is entirely new to the jurisprudence of -this State, we are- cited to numerous cases in this and other States where the courts, in dealing with charitable ■ trusts for hospitals, etc., have refused to allow the trust funds to be depleted in paying judgments for the torts of servants or employees, and the effort is made to establish, an analogy between these cases and the case at bar. It is interesting, therefore, to consider the question and to determine how far a cemetery corporation is such a public charity as to entitle it to exemption from its duties to those who are within its grounds upon lawful errands, and by its invitation.
The defendant coi’poration was organized under the provisions
This act was amended in 1852 and 1853, but without making any changes in so far as these provisions are concerned. In 1874 the act was again amended, allowing the sale of lots by individual owners whenever the bodies of deceased persons should be removed,, on application to the court for an order allowing such sale, and giving the cemetery association full power to govern the planting of trees, flowers and shrubs. In 1877 the act was once more
“ § 2. Whenever any such land shall cease to be used for cemetery purposes, any judgment, tax or assessment which, but for the- provisions of this act, would have been' levied, collected of imposed, shall thereupon, forthwith, together with interest thereon, become and be a lien and charge upon such land,, and collectible-out of the same.”
This last act, passed subsequent to the decision of the court in the case of Buffalo City Cemetery v. City of Buffalo (46 N. Y. 506), Was undoubtedly enacted to change the rule of law in- respect' to . the mortgage or' sale of the cemetery property as a whole. In that case the court say: “ However repugnant to proper sentiment it may be to have such property the subject of sale by process, it is for the Legislature to say how far that sentiment shall be regarded, and it is for the court to interpret and apply the language used to that end. Apt words are used in this enactment to preserve the. property from sale on execution, or voluntary application for the payment of the debts of an associate, and from being alienated by him. If there are not words whose established meaning exempts from the usual municipal assessments, a- new meaning cannot be given to those employed ; and it must be inferred that it was not contemplated that the association would be endangered by such assessments, made as they generally are, and resulting as they sometimes do, for the benefit of the property.”
There can be no doubt that up to the time of the passage of the act of 1879 all of the property of a rural cemetery association was liable for judgments or assessments for special city improvements this being the question involved in- the case above ■cited — and the act of 1879 exempted from execution and sale ■only the' land of such cémetery associations while they should be
“ The charge of the funeral expenses affects all the goods of the deceased,” says Domat’s Civil Law, by Strahan (2 Cush. ed. p. 123, ¶ 2654), “ as much as if the person who furnishes the things necessary had contracted for them with the deceased himself. And he has, moreover, a privilege on the said goods, as has been mentioned in the fourteenth article of the fifth section of Pawns and Mortgages.” This was the civil law, and it is now the law of this State. “ It is now proposed, to consider the duties of an executor or administrator,” says Williams on Executors (*835). “ And, first, ha must bury the deceased in a manner suitable to the estate he leaves behind him. Funeral expenses, says Lord Coke, according to the. degree and quality of the deceased, are to be allowed of the goods of the deceased before any debt or duty whatsoever.”
“ Though our statute of payment of debts and legacies gives the order in which the executor shall make payment of debts against the estate,” say the court in the case of Patterson v. Patterson (59 N. Y. 574), “ and though there is no provision there for a priority of payment of funeral expenses, it is not to be held therefrom that the common-law rule is abrogated. Those expenses are not to be treated as a debt against the estate, but as a charge upon the estate, the same as the necessary expenses of administration.” See, also, Pettengill v. Abbott (167 Mass. 307), where the court holds that a reasonable amount expended in the procurement of a burial place is a necessary part of the funeral expenses. It being the duty of the estate of each individual to provide for interment,, where the estate is solvent, there does not seem to be any principle, of charity involved in a cemetery association. It is not organized for the purpose of providing a burial place for those who die-insolvent, but to enable individuals in their lifetime to provide a,
From the promulgation of the Duke of York’s laws at Hemp-stead, L. I., in 1665, there has been a disposition in this State to foster public burials, based upon considerations of public policy; and this has prompted legislative bodies from time to time to make laws compelling such burials in the earlier stages, and latterly to encourage them by exempting from taxation, etc., the property set aside .for the purpose of burials. This has brought about a condition where the individual may relieve his estate of the burden of furnishing an independent or private grave, and by investing in company with others he may not only secure a respectable burial place, but he may insure its being kept in a decent condition at a much less expense to himself and to his estate than would otherwise be possible. It is. simply an economical business-like way of jnoviding the burial place which the law compels the estate of the individual to provide, and is entirely distinct from any of the elements of charity. . “ The substantial right of enjoyment of the property is vested- in the individual lot owners,” say the court in Matter of Deansville Cemetery Association (66 N. Y. 569), “ and the whole effect of the incorporation of these cemetery associations is to enable a number of private individuals to unite in purchasing property for their own use and that of their descendants as a place of burial, and to secure a permanent management of it through the instrumentality of trustees appointed- by themselves and subject to no other control, with the privilege,- when they cease to use their lots as a place of burial, to sell them and receive the proceeds for their own benefit.”
Even in the matter of sustaining wills the courts have not been, willing to look upon trusts for the keeping of graves.in repair with favor, and they have been declared void in almost every instance, except, in such cases as the trust was ma,de to a religious society
“ The question before us,” say the court in the case of Kelly v. Nichols (19 Law. Rep. Ann..416), “is whether the testamentary gift is valid as a gift to charitable uses, . This question can only be determined by the purposes for which the gift is made, as disclosed in the will. The first designated purpose is the care of the graves. Among all classes there is a pervading sentiment of reverence for the burial places of the dead, which springs naturally from the Christian belief in the resurrection of the body. This sentiment is recognized in this State and elsewhere by the creation of corporations for maintaining and adorning cemeteries, and by statutes which allow town councils to receive and hold funds in trust for the care of burial lots. However general and commendable this sentiment may be, and however desirable it may be that the graves of the dead be decently and reverently cared for, nevertheless we do not think a bequest of this
This case was decided in the Supreme Court of Rhode Island, and is in line with the case of Johnson v. Holifield (79 Ala. 423), where it was held that “ A bequest of money to county commissioners, ‘ and their successors in office, or to such authority as may control and direct the finances of said county, to be held in perpetuity in trust,’ and the interest to be expended annually in the repair, preserva-lion and neat keeping of the graves and monuments of the testatrix and other named relatives, it is not a bequest to a charitable use, within the exception to the rule against perpetuities, and is void.”
'‘ No distinction,” say the court in the case of Bates v. Bates (134 Mass. 114), “ between these eases and that at bar can be made favorable to the latter. The repair of a private monumental structure is a matter strictly individual and personal. The fund constituted by the testati’ix is to be- expended for her own gratification, upon an object in which the public has no interest, and .which has no proper similitude to a charitablé use. ‘It stands,’ as the Master of the Rolls remarks in Mellick v. Asylum, (ubi supra) ‘ on the same footing as an expensive funeral.’ ”
It is clear, then, that the moneys which the defendant corporation has or may receive from individual lot owners, and which it holds for the purpose of making improvements in the cemetery, are not held for a charitable use as understood by Lord Camden, who declared a charitable use to be a “gift to a general public use which extends to the poor as well as the rich,” or within the rules-laid down by our courts. This being true, and these cemetery associations being organized for purely business considerations, it is difficult to .see why they should be given any greater consideration than any other corporation organized for the purpose of promoting private ends. In Massachusetts, where the fire underwriters of the city of Boston were incorporated for the purpose of protecting
In the case of Haas v. Missionary Society of the Most Holy Redeemer (6 Misc. Rep. 281), relied upon by the defendant as an authority in support of his contention that the cemetery association is not answerable for its neglect in the case at bar, the action was dismissed because of the fact that the court held that the defendant, being a religious and charitable institution, holding, in trust, its funds for religions and charitable purposes, could not be called to answer for the negligence or torts of its employees. The leading-case upon this .question seems to be McDonald v. Massachusetts General Hospital (120 Mass. 432), and the court say: “ The ground upon which the- plaintiff seeks to maintain this action is that the defendant undertook, through its agents and- servants, to treat his broken leg, and that this was done so negligently and unskillfully that he was permanently injured. * * * We are satisfied that, for other reasons, the plaintiff is not entitled to recover upon the case made by him. The defendant was a public charitable institution under, the laws of the Commonwealth. The object for which it was incorporated was to provide a general hospital for sick and insane per
This, it will he observed, presents the case in-a very different light from that of a cemetery association, organized to promote the interests of the individual members. The courts, in the case of-a public charity, refuse to allow trust funds to be reached to pay judgments in favor of persons who may have suffered wrongs at the hands of "the agents or servants of the charitable corporation, upon the theory that these institutions are discharging a function belonging to government, and any diversion of the trust funds to purposes outside of the object for which they were granted would tend to destroy the charity, and to throw the burden upon the government. There ,is no such consideration of public policy involved in the maintenance of a cemetery. Each individual, his estate or his immediate relatives or friends, is obliged to provide for his own interment. Ho amount of hardship which a cemetery association might -suffer would, change this condition, or prevent the interment of each in his turn; and there is, therefore, no question of public policy involved, and the contention of the defendant in this action is without force.
A case, the facts of which are closely, allied to. the one at bar, was
“ The plaintiff, in 1878, purchased a grave from the defendant for seven dollars, the deed of which entitled him and his heirs and assigns to the grave as a place of burial, and contained the following conditions: ‘ That said lot shall not be transferred without the consent of the trustees; shall be subject to the regulations made, or to be made, in the care and management of said cemetery by the trustees, who shall also have the right to prevent the erection of any offensive or improper monument or inscription thereon, and shall retain the right to enter any lot or lots for the removal of anything objectionable; that no remains shall be deposited therein for hire,*308 arid that persons dying in drunkenness, duel, or by self-destruction, unbaptized, non-Catholics, or otherwise opposed to the Catholic Church, shall not be there interred.’
“ The plaintiff had successively buried his father and one of his children in this grave, and in March, 1884, brought the remains of his wife for interment in the same grave. Upon the arrival of the funeral procession at the grave, there appeared upon the side of the grave, which had previously been opened by a grave digger in the employ of the corporation, two small coffins, one of which bore the name of John McDonald. The plaintiff testified that no John McDonald had ever been buried in' his grave with his consent, and offered testimony tending to show that the body of John McDonald, and the coffin containing the same, had been negligently buried by the employees of the corporation in his grave. . Among other testimony thus put in by the plaintiff, he offered evidence to show that, at the time of the burial of his wife, there were in -the possession of the defendant no books of record which would enable its officers (independently of an actual examination of the grave, or a search through the day book of daily interments since the purchase of the grave) to determine in all cases, without considerable delay, who might be buried in any specified single grave, and that there were not, at the time.-of the burial of the plaintiff’s wife, any regulations or orders of the corporation requiring or directing the keeping of such records.
“ The defendant contended and offered testimony to show that the coffin, and body of John McDonald had never been buried in the plaintiff’s grave, or, if so buried, such burial was not made; by any person for whom the defendant was responsible.
“Ho claim was made or evidence offered by the plaintiff that there was any negligence in the employment or selection by the corporation of the grave digger above referred to or any. of its servants or employees. There was evidence tending to show that some sixty thousand bodies were buried in the cemetery of the defendant at the time of the trial; and it also appeared that the agent or superintendent of the corporation who had charge of the cemetery received a salary of $300 per annum, and that the grave diggers, who were employed by him, also received pay for their services from the corporation. It also appeared that when a grave had been*309 sold, and the same was subsequently opened at the request of the owner for' the purpose of a fresh interment, a charge of three dollars was made by the corporation for such opening, which sum, however, was devoted,, with the other receipts of the corporation, to carrying out the general purposes of the corporation, as above stated.”
Commenting upon this state of facts, which we have set forth .in detail, that it may be seen that the question' involved in the case at bar was presented to the Massachusetts court in as favorable a light as possible, the court say: “ There was evidence warranting a verdict for the plaintiff if the defendant' was subject to the ordinary rules of liability. We are of opinion that it was subject to those rules, and that by the terms of the report judgment must be entered for the plaintiff. McDonald v. Massachusetts General Hospital (120 Mass. 432) was decided on the ground that the defendant was a public charitable institution under the laws of the Commonwealth, and Benton v. Trustees of Boston City Hospital (140 Mass. 13) on the ground that, if it was not within the former decision, then the defendant was a mere agent to perform a duty which the city of Boston had assumed solely for the benefit of the public under the authority of a statute; that the city of Boston would not he liable under the rules peculiar to municipal corporations stated in Tindley v. Salem (137 Mass. 171) and Hill v. Boston (122 id. 344), and that, therefore, a mere statutory agent without property intervening between the city and the actual wrongdoer was also free from liability.
“ The latter ground has no application here. There is no pre tense that the defendant is acting as an agent, for the city. . We think that there is equally little ground for calling it a charitable corporation. Assuming, for the sake of argument, that it would have no right to declare dividends to its members in case of realizing profits, there is nothing in the charter -which compels the application of any part of its funds to charitable uses. It would be acting strictly within its powers if it sold all its lands for full price. The purpose of the charter is to secure .permanent care of graves and such advantages to the persons interested as may be deemed incident to burial in such a cemetery. The beneficiaries are. a definite number of persons clearly pointed out by law. (Stat. 1841, c. 114, §§ 4, 5; Old South Society v. Crocker, 119 Mass. 1, 23.
“ The provision in the St. of 1841, c. 114, section 3, that all the real and personal estate of the corporation ' shall be applied exclusively to purposes connected with, and appropriate to, the objects of such organization,’ does not' mean to exempt its property, and thus the corporation, from ordinary civil liabilities. There is a similar restriction, express or implied, in the cáse of a railroad.
“. The fact that the funds received were actually applied to a considerable extent in charity, is no more material than evidence of a similar application of a part of his income by a private citizen would be in a suit against him.”
While it is true that, in this State, the Legislature has provided that the real estate of cemetery associations cannot be reached by a judgment during the time that such real estate is actually in use for burial purposes, it is clear that it was never intended to exempt them from “ ordinary civil liabilitiesfor it is provided (§ 2, chap. 310, Laws of 1879) that “ Whenever any-such land shall cease to be used for cemetery purposes, any judgment, tax or assessment which, but for the provisions of this act, would have been levied, collected or imposed, shall thereupon forthwith, together with interest thereon, become and be a lien and charge upon such land, and collectible out of the same.”
In the case at bar the neglect was not that of an agent or employee, it- was the neglect of the corporation; the neglect of an implied duty which the corporation, owed to those whom it invited within its inclosure; and a notice to its agent that poison ivy was within the in closure was notice to the corporation, and it was bound to take steps to remove the menace to the safety of those who entered its grounds for a lawful purpose. The plaintiff in this action having suffered by reason of this neglect, which fact has been found by the jury — although the evidence was not, perhaps, as conclusive as might be desired — is clearly entitled to damages; and we find no reason for making any change in the -judgment which has' been rendered.
The statute under which the defendant is organized allows the corporation to make use of its funds for the incidental expenses of the corporation, and there is no doubt that it will, feel that it is jus
The judgment of the trial court and the order denying a new trial should be affirmed, with costs.
FLatoh, J., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.