Maude Gray Wilson, plaintiff below and appellee here, brought action against appel- *402 •'laht, 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 Plill 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, dúfing 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. ,Theré was no motion for a new trial.
- It appears- from the evidence that Grace -Mill 'Cemetery, was acquired by defendant ■in 1948; that for many years prior to that time,-.the care of the cemetery had been neglected; that during the spring and summer of 1950 the defendant took steps to clear a part of the cemetery of an overgrowth of vines and weeds and to open up some of the roadways; and that it was in the" doing of .this work that the trespass to the grave of .Eli- Gray was committed.
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, post, p. 600,
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 lo- ' cate 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 :
I. “The first, and probably the most important, is: Did the trial court err in refusing to give the general affirmative charge requested in writing by the defendant (appellant) ? The answer to this question might well hinge upon a determination of the question as to whether the plaintiff’s right of action, if any, was based upon a trespass to land coming within our six-year statute of limitations (Title 7, Section 21, Code of Alabama of 1940), or was básed upon an action of trespass on the case coming within our one-year statute of limitations (Title 7, Section 26, Code of Alabama of 1940).”
*403 II. “The second question involves the propriety of the action of the trial court in overruling' the defendant’s objections to evidence tending to show damage to other graves other than the grave of the deceased in question, which other graves were in other sections of the cemetery far removed from the grave involved in this litigation.”
III. “The third question, or the third class of questions, relates to the action of the trial court in overruling the defendant’s demurrer to the several counts upon which the case was submitted to the jury.”
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.,
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 than in trespass, since damages for mental anguish, as well as punitive damages, are sought. Appellant seems to rely principally on the specially concurring opinion in Holder v. Elmwood Corporation,
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,
“It is nowhere denied, that in actions of this character, when maintainable, the injury to the natural feelings of the plaintiff may be taken into consideration in estimating the damages.”
But the claim for mental anguish in connection with a claim of general damages fora trespass and for punitive damages does,not change thé nature of the suit from-being that of a .trespass to one in case.
*404
’• 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 com-inon of the possessory right to Eli’s burial site. As noted in Smith and Gaston Funeral Directors, Inc. v. Dean, Ala.,
The judgment appealed from is due to be, and is, affirmed.
Affirmed.