10 Ga. App. 845 | Ga. Ct. App. | 1912
1. It needs little argument to show that the city is not liable for exemplary or punitive damages for the alleged conduct of its officers in desecrating the grave and disinterring the remains of the plaintiffs’ father. Even if authority to remove the bodies of deceased persons from their resting places could be conferred upon a municipal corporation as a legitimate exercise of the police power, the General Assembly has not attempted to expressly confer such authority upon the City of Madison, and it will not be implied from the general welfare clause in the city’s charter, or from the authority, granted in an amendment to the charter, to own and regulate cemeteries and interments therein. Acts 1906, p. 837. The alleged conduct of the members of the council was ultra vires and wholly beyond the scope of their official duty. The trespass was not the result of an exercise of corporate powers, and the corporation would not be liable even though its governing body commanded the performance of the act. In such a case the corporation is not estopped to plead the want of corporate power. The rule is succinctly stated by the Supreme Court as follows: “Where an act is done by the officers and agents of a municipal corporation, which is within the corporate power and might have been lawfully accomplished had the municipal authorities proceeded according to law, the corporation will be liable for the consequences of an act of such officers or agents proceeding contrary to law or in an irregular manner. Aliter, where the act complained of lies wholly outside of the general or special powers of the corporation.” Langley v. Augusta, 118 Ga. 590 (4), (45 S. E. 486, 98 Am. St. R. 133). See also Roughton v. Atlanta, 113 Ga. 948 (113 S. E. 64); City Council of Augusta v. Mackey, 113 Ga. 64 (38 S. E. 339) ; Gray v. Griffin, 111 Ga. 361 (36 S. E. 792, 51 L. R. A. 131); Civil Code (1910), §§ 893, 897; 4 Dillon, Mun. Corp. (5th ed.), § 1650 et seq. It is argued that since the city sold the cemetery lot and thus gave colorable authority to the grantee to remove the body of the plaintiffs’ father, it ought to be liable for the natural consequences of its act in making the deed; but this position is not tenable. We need not discuss the question whether the city had in 1893 power under its charter to lay out and' own a cemetery. Certainly the mere grant
2. As to Butler, the petition stated a case. His counsel do not contest the correctness of the principle decided in Jacobus v. Children of Israel, 107 Ga. 518 (33 S. E. 853, 73 Am. St. R. 141), that “one who is the owner of the easement of burial in a cemetery lot, or who is rightfully in possession of the same, is entitled to recover damages from any one who wrongfully enters upon such lot and disinters the remains of persons buried therein.” See, also, Wright v. Hollywood Cemetery Corporation, 112 Ga. 884 (38 S. E. 94, 52 L. R. A. 621); L. & N R. Co. v. Wilson, 123 Ga. 62 (51 S. E. 24, 3 Ann. Cas. 128); Medical College v. Rushing, 1 Ga. App. 468 (57 S. E. 1083). His point is that only special damages are laid, and that, there being no claim for general damages, the petition was rightly dismissed as to Butler, because the allegations are not sufficient to support the claim for exemplary or punitive damages. See Wright v. Smith, 128 Ga. 432 (57 S. E. 684). The authorities cited in the Jacobus case show the rule to be that damages may be recovered where the act of disinterment was done either wantonly or negligently. Mere negligence will authorize the recovery of general damages. But in order to authorize the recovery of exemplary damages, it must appear that the “injury has been wanton and malicious, or is the result of gross negligence or a reckless disregard of the rights of others, equivalent to an intentional violation of them.” Jacobus v. Children of Israel, supra. Where there are aggravating circumstances, either in the act jor the intention, punitive damages may be awarded. Civil Code (1910), § 4503. There is no prayer for general. damages, but the averments sufficiently state a case entitling plaintiffs to recover exemplary or punitive damages. It is true the petition does not allege
3. The claim for compensation for the value of the lot taken from plaintiffs was demurred to, upon the ground that, as the
4. The defendants specially demurred to the claim for the cost of reinterment of the body of the plaintiffs’ father, upon the ground that it was not alleged that the plaintiffs actually expended the amount sued for. If the plaintiffs did not themselves incur this expense, they can not recover for these items, but we think the petition sufficiently alleges that they did so. The averment that defendants are indebted to plaintiffs for the “expense of another lot,” in the sum of $100, and for the “cost of coffin, grave, and re-interring the remains of their father” at an “expense of $125.00,” is equivalent to an allegation that plaintiffs incurred the expense claimed.
5. There was no misjoinder of causes of action. There was but one cause of action alleged, namely, the wrongful disinterment of the dead body; and the several items of damage sought to be recovered relate to different elements growing out of. and conse
The judgment will be affirmed in so far as it dismissed the petition as to the city, but reversed in so far as it sustained the demurrer filed by Butler.
Judgment affirmed in part, and in part reversed,