RUBY J. (WOODS) McKENZIE v. JONES-PRESTON FUNERAL HOME, INCORPORATED; AND DICK VANHOOSE, INDIVIDUALLY, AND AS A DIRECTOR OF JONES-PRESTON FUNERAL HOME, INCORPORATED
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RENDERED: February 4, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-002752-MR
RUBY J. (WOODS) McKENZIE
APPELLANT
APPEAL FROM JOHNSON CIRCUIT COURT
HONORABLE JAMES A. KNIGHT, JUDGE
ACTION NO. 96-CI-00235
v.
JONES-PRESTON FUNERAL HOME,
INCORPORATED; AND DICK VANHOOSE,
INDIVIDUALLY, AND AS A DIRECTOR
OF JONES-PRESTON FUNERAL HOME,
INCORPORATED
APPELLEES
OPINION
REVERSING AND REMANDING WITH DIRECTIONS
** ** ** ** **
BEFORE: BARBER, HUDDLESTON AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
Ruby McKenzie has appealed from the summary
dismissal of her complaint against Jones-Preston Funeral Home,
Inc., and one of its employees, Dick VanHoose, in which she
sought damages for their disturbance of her husband’s grave.
The
trial court dismissed McKenzie’s complaint solely for the reason
that she failed to obtain an expert witness to prove the
emotional injuries she sustained as a result of the appellees’
alleged wrongful conduct.
Having reviewed the record and the
applicable case law, we conclude that the trial court erred as a
matter of law.
We therefore reverse the summary judgment and
remand for a trial on the merits of McKenzie’s complaint.
McKenzie was married to Delano Woods on January 11,
1958.
The marriage was of short duration due to Woods’ untimely
death as a result of an automobile accident on March 8, 1958.
McKenzie caused Woods to be buried in her family’s plot in the
Dixon Cemetery located in Staffordsville, in Johnson County,
Kentucky.
In 1961, McKenzie remarried and eventually moved to
Michigan.
In her discovery deposition, McKenzie testified that
she visited Woods’ grave many times during the next thirty-eight
years, and that members of her family residing in Kentucky took
care of, and frequently decorated, the grave.
In August 1995, McKenzie was contacted by Ronald Woods,
one of Woods’ four brothers, who informed her that his mother,
McKenzie’s former mother-in-law, had died.
Ronald Woods
requested that he be allowed to bury his mother next to Woods, or
in the alternative, that he be allowed to move Woods’ body to a
cemetery in Fallsburg, Kentucky.
McKenzie testified that she
told Ronald Woods that she did not have authority over any of the
vacant spaces in her family’s plot in the Dixon Cemetery, and
that she would not consent to having her husband’s body moved to
a different location.
Nevertheless, Ronald Woods and his
brothers, Dennis, Mickey and Vaughn Woods, arranged to have
Woods’ body moved to Fallsburg.
VanHoose had over thirty years of experience in the
funeral business.
He had been a partner in Jones-Preston in
years prior to 1978, and after that, worked at the funeral home
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as a director.
He was, at all times pertinent to McKenzie’s
action, employed as a funeral director by the appellee, JonesPreston.
VanHoose testified that he was contacted at Jones-
Preston by the Woodses, persons to whom he was distantly related,
who wanted to have their brother’s body moved to Fallsburg.
VanHoose acknowledged that he was aware at the time of the
Woodses’ request, that Delano Woods had been married to McKenzie
at the time of his death.
Nevertheless, VanHoose stated that it
was his understanding of the law that upon her re-marriage
McKenzie had lost her status as the next-of-kin with respect to
Woods’ remains.1
VanHoose and the Woodses reached an agreement for the
disinterment and re-interment of Woods’ body in Fallsburg.
To
that end, VanHoose prepared a document, at his place of
employment and on Jones-Preston’s letterhead, which he sent to
the Woodses for their signatures as “next-of-kin,” requesting
that the body’s removal be accomplished.2
On behalf of Jones-
1
It is “firmly established” in Kentucky that as Woods’
surviving spouse, McKenzie had the right to control the
disposition of his remains. See Hazelwood v. Stokes, Ky., 483
S.W.2d 576, 577 (1972); see also Kentucky Revised Statutes
367.97501(1). Whether a jury will believe that a funeral director
with VanHoose’s years of experience could be mistaken about the
viability of those rights remains to be determined.
2
The document, signed by the four Woods brothers, reads
To whom it may concern;
This is to state that I, We, being the next
o[f] Kin to Delano Woods who died March 8,
1958 in JOHNSON County, Kentucky[,] and was
buried in the Dixon Cemetery at
Staffordsville, Ky.[,] do wish to have his
remains removed from the Dixon Cemetery and
reintered [sic] in the [] Woods Family
Cemetery, Fallsburg, Ky. Place of death was
(continued...)
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Preston, VanHoose applied for and received from the Cabinet for
Human Resources (Cabinet), a permit to disinter Woods’ body.3
The application listed Jones-Preston as the “Responsible Person
or Firm” making the request and contained Jones-Preston’s address
and identified its telephone number as that belonging to the
“Person or Firm” making the request.
Finally, sometime between
June and November 1995, VanHoose had grave diggers under contract
with Jones-Preston, exhume Woods’ body and place it in JonesPreston’s garage.
According to VanHoose, the agreement did not include
his participation in the re-interment at Fallsburg.
He claimed
that the Woodses, in order to minimize their expenses, were going
to open the new grave site themselves and that he agreed that the
Woodses would be charged only for the cost involved in the
disinterment.
After the corpse had been stored at the Jones-
Preston garage for some period of time, VanHoose learned that the
Woodses had second thoughts about the project.
They told
VanHoose that they feared problems from the fact that they did
not have McKenzie’s consent and that they had decided not to go
through with the re-burial at Fallsburg.
2
VanHoose wrote to the
(...continued)
Johnson County, Kentucky and Mr. James
Trimble was coroner at that time.
Next of kin to Delano Woods
3
The application, a one-page form provided by the Cabinet,
contained the following information: “When there is more than one
member of the same class of kin all members of that class must
agree to the disinterment. A spouse who re-marries does not lose
thereby next-of-kin status” (emphases original).
-4-
Cabinet, again on Jones-Preston letterhead, informing it that
“[b]ecause of difficulity [sic] with the surviving brothers” of
the decedent, he intended to re-inter Woods in the original
grave.
He requested that the permit be canceled and stated that
there would be “no further action from the Jones-Preston Funeral
Home.”
McKenzie learned from family members that her husband’s
grave appeared to have been disturbed.
She called the Cabinet
and learned that a permit had been issued to Jones-Preston to
exhume the body.
She called James A. Preston, the manager of the
funeral home and the son of its owner, who told her he knew
nothing about the permit or the condition of her husband’s grave.
After many frustrating and unsuccessful attempts to learn what
had actually happened to the grave, and in order to discover
whether or not her husband’s body was still where she had
originally buried him, McKenzie had the body exhumed.
McKenzie
testified that during that process, the vault fell apart and that
some of her husband’s remains fell out of the vault in front of
her.
McKenzie testified that it was obvious that the body in the
vault had been disturbed, but that she was satisfied, from
dentures and jewelry on the body, that the vault contained her
husband’s remains.
On June 6, 1996, McKenzie filed her complaint in which
she advanced several causes of action against the appellees
including desecration of the grave site, abuse and mishandling of
the corpse, violation of her rights with respect to the grave as
the next-of-kin, trespass, violation of the right of sepulture,
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and outrage.
She alleged that the appellees acted
“intentionally, negligently, and grossly negligent, maliciously,
wantonly, and with reckless disregard for [her] rights” in
desecrating the grave of Woods “by causing the gravesite to be
subjected to physical injury, indignity, exposure, hurt, and
displacement.”
McKenzie sought damages for the expenses she
incurred in traveling to Kentucky, and the costs attendant to the
disinterment, including the cost of a new vault.
She further
sought compensatory damages for her emotional distress, shock,
mental anguish, and punitive damages.
A single answer was filed on behalf of both VanHoose
and Jones-Preston.
The answer acknowledged that VanHoose was
employed by Jones-Preston as a funeral director, but stated that
he “was not acting as an agent, employee, and/or director” for
Jones-Preston “at the time and place of the disinterment and/or
the reinterment of the corpse of Delano Woods.”
The appellees
admitted that McKenzie was the “next of kin” of Woods and as such
had “an easement, license, and privilege over the gravesite” of
Woods.
The answer alleged that VanHoose sought a permit for the
corpse of Woods to be disinterred and reinterred “in good faith
and based on an honest mistake.”
On December 26, 1996, a motion for summary judgment was
filed on behalf of Jones-Preston, in which it was alleged that
VanHoose was not acting as its agent with respect to the
disinterment and reinterment of Woods’ body.
Although McKenzie
had responded to the motion on February 18, 1997, the motion was
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still pending on the trial court’s docket on April 29, 1998, the
morning the trial was scheduled to commence.
On that morning, a conference, which was not recorded,4
was conducted in the trial court’s chambers.
At the conclusion
of that conference, the trial court dismissed McKenzie’s
complaint in its entirety.
Despite the appellees’ assertions in
their brief that the trial court granted Jones-McKenzie’s motion
for summary judgment on the basis that VanHoose was an
independent contractor, the trial court’s order and judgment, set
forth verbatim as follows, does not mention the pending motion
for summary judgment, or address the arguments advanced anywhere
therein:
On Wednesday, April 29, 1998 at the hour
of 9:00 a.m., the above captioned matter was
scheduled to be called for trial by jury.
Prior to the calling of the docket on that
morning, counsel for the defendants requested
and was granted an in-chambers conference
during which he made a motion in limine.
Specifically, counsel for the defendants
requested that the plaintiff be precluded
from offering any medical evidence regarding
her claimed emotional damages. The
defendants’ reasoning was that medical
evidence should not be allowed since the
plaintiff had not retained and did not intend
to call any expert witness regarding
emotional damages. In response to this
motion, plaintiff acknowledged that no expert
witness had been obtained, but stated that
evidence concerning plaintiff’s emotional
damages would be introduced through plaintiff
herself, and through plaintiff’s family
members.
4
In the appellees’ brief, counsel states that to the “[b]est
of my recollection, a record was made of the hearing.”
Counsel’s “recollection” does not correspond with the trial
record. The judgment specifically states that the hearing “took
place in chambers and off the record,” and that McKenzie’s
“request to go on the record was denied.”
-7-
Upon presentation of the issue in this
fashion, this Court, sua sponte, construed
the defendants’ motion in limine as a motion
for summary judgment and determined to grant
that motion and dismiss all claims based on
the plaintiff’s failure to retain any expert
witness on the issue of emotional damages.
The plaintiff’s request to go on the record
was denied. The plaintiff requested that a
written ruling be issued, and this Order thus
follows.
Based upon the above described
proceedings, which took place in chambers and
off the record, IT IS THEREFORE ORDERED AND
ADJUDGED:
1. That the defendants’ oral motion in
limine offered on the morning of trial is
hereby sua sponte construed as a motion for
summary judgment;
2. That this motion for summary
judgment is GRANTED;
3. That based upon the plaintiff’s
failure to obtain an expert witness on the
issue of emotional damages, all of
plaintiff’s claims are hereby DISMISSED WITH
PREJUDICE, and this case is stricken from the
active docket;
4. This is a final and appealable order
and there is no just cause for delay.
Entered this 1[st] day of Sept 1998.
McKenzie’s motion to alter, amend or vacate the judgment was
denied on October 20, 1998, and this appeal followed.
Before we address the single issue presented by this
appeal, we believe it necessary to address certain statements and
arguments contained in the appellees’ brief which this Court
finds disturbing, either for their inaccuracy, or their
irrelevance to the propriety of the trial court’s summary
judgment.
In the appellees’ brief, VanHoose is repeatedly
referred to as an “independent contractor,” although there was no
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determination by the trial court that his status was other than
that of a Jones-Preston’s employee at the time of his alleged
tortious conduct.
Further, no less than four times, the
appellees state that the trial court granted Jones-Preston’s
motion for summary judgment based on its theory that VanHoose was
not acting within the scope of his employment in his dealings
with the Woodses.
It is, we believe, not possible to construe the trial
court’s summary judgment in this fashion.
The judgment states,
not once, but twice, that the reason for the dismissal of
McKenzie’s complaint was her “failure to obtain an expert witness
on the issue of emotional damages.”
The judgment does not even
hint at an alternative basis for the dismissal.
It mentions,
again twice, that the summary judgment was granted sua sponte.
Thus, by definition, the ruling was not made in response to the
pending motion for summary judgment made by Jones-Preston.5
We have no idea what has motivated the appellees to
represent the basis of the summary judgment as one founded on
5
We believe it apparent, from the facts set out in this
opinion and from others in the record on appeal, that the motion
for summary judgment could not withstand the scrutiny required in
considering such motions in light of settled case law in the area
of vicarious liability. Further, the funeral home’s attempt in
this action to avoid liability under the doctrine of respondeat
superior is inconsistent with the position it took in proceedings
before the State Board of Embalmers and Funeral Directors. In a
verified response to McKenzie’s complaint in that arena, James A.
Preston stated: “The Jones-Preston Funeral Home, Inc. did nothing
wrong, or illegal, by acting upon the request of the next of kin
as represented to it, and as understood and thought to be correct
and accurate.”
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agency principles.6
itself.
In any event, the judgment speaks for
Whatever the trial court may have stated in the
unrecorded hearing in chambers, but neglected to include in its
written judgment, is not relevant to this appeal.7
“It is
elementary that a court of record speaks only through its
records.”8
Thus, the only issue presently before this Court is
whether the trial court erred in summarily dismissing McKenzie’s
complaint because she did not intend to introduce expert
testimony to substantiate her claim that she suffered mental
anguish and emotional distress by the appellees’ disturbance of
her husband’s remains.
The ability of a trial court to resolve a legal dispute
by means of summary judgment is very limited.
A summary judgment
is only “proper where the movant shows that the adverse party
could not prevail under any circumstances.”
9
Thus, the
parameter of this Court’s review of a summary judgment is to
determine “whether the trial court correctly found that there
were no genuine issues as to any material fact and that the
moving party was entitled to judgment as a matter of law.”10
6
It is difficult to believe that VanHoose would make these
arguments if he were independently represented.
7
Equitable Life Assurance Society of the United States v.
Taylor, Ky.App., 637 S.W.2d 663, 665 (1982).
8
Allen v. Walter, Ky., 534 S.W.2d 453, 455 (1976).
9
Steelvest, Inc. v. Scansteel Service Center, Inc., Ky., 807
S.W.2d 476, 480 (1991).
10
Scifres v. Kraft, Ky.App., 916 S.W.2d 779, 781 (1996).
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Utilizing that standard, it is immediately apparent
that the trial court erred in dismissing McKenzie’s complaint.
There is no question that McKenzie is entitled to seek redress
for her emotional distress resulting from the disturbance of her
husband’s grave and the removal of his remains to the garage at
Jones-Preston.11
There is no legal basis for the trial court’s
conclusion that McKenzie needed expert proof to establish her
damages.
There is not a single authority cited in the trial
court’s judgment, nor in the appellees’ brief, which would
justify the drastic action taken in this matter.
We are unaware
of any requirement in this jurisdiction that a plaintiff present
expert medical or scientific proof to establish her damages for
mental anguish and/or emotional suffering.
To the contrary, such
damages were recoverable long before the advent of psychiatry.
The appellees argue that “[i]t would appear logical
that medical proof would be required to establish a psychological
impairment.”
However, this contention is totally irrelevant to
the discussion as McKenzie has not claimed to be disabled or to
have developed a psychological impairment as a result of the
appellees’ conduct.
While her “proof must be clear and
satisfactory,” McKenzie’s damages do not even have to be
11
See Codell Construction Co. v. Miller, 304 Ky. 708, 202
S.W.2d 394 (1947)(cause of action for mental anguish allowed
where graves were partly destroyed by blasting during road
construction); R. B. Tyler Company v. Kinser, Ky., 346 S.W.2d
306, 308 (1961) (“right of next of kin to recover damages for the
desecration of a grave is generally recognized as being for a
common law tort”); Louisville Cemetery Assoc. v. Shauntee, Ky.,
376 S.W.2d 533, 536 (1964)(plaintiff, the niece of the decedent
who was only nine years old at the time of his death, was allowed
to recover mental anguish for the “obliteration” of the uncle’s
grave).
-11-
established by direct evidence, but may include “circumstantial
evidence from which the jury could infer that anxiety or mental
anguish in fact occurred.”12
In this jurisdiction the rights of
the next of kin with respect to the remains of their deceased
loved ones are held in high regard.
The tenderest feelings of the human heart
cluster about the remains of the dead. . . .
An indignity or wrong to a corpse is resented
more quickly than a wrong to the living, and,
if mental suffering may be recovered for in
the one case, it is hard to see why it may
not be recovered for in the other.13
We have no doubt that the type of emotional damages McKenzie
seeks to recover are ones that could be appreciated by the
average juror, unaided by expert testimony.14
Accordingly, the judgment of the Johnson Circuit Court
is reversed, and the matter is remanded for further proceedings
consistent with the Opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
12
Motorists Mutual Insurance Co. v. Glass, Ky., 996 S.W.2d
437, 454 (1997) (discussing damages for “‘embarrassment,
humiliation and mental anguish’” sought in a statutory bad faith
claim against an insurer); see also Lexington-Fayette Urban
County Government v. Middleton, Ky.App., 555 S.W.2d 613, 618
(1977) (the Court held that “even in the absence of testimony
concerning mental pain and anguish, a verdict may award such
mental pain” where such is the “only reasonable inference” from
the testimony).
13
Louisville & N. R. R. Co. v. Hull, 113 Ky. 561, 68 S.W.
433, 435 (1902).
14
Even in medical malpractice cases where expert testimony
is generally necessary to establish liability, an exception
exists where “the negligence [is] so apparent that laymen with
general knowledge would have no difficulty in recognizing it.”
Maggard v. McKelvey, Ky.App., 627 S.W.2d 44, 49 (1981).
-12-
John R. McGinnis
Greenup, KY
APPELLEE:
ORAL ARGUMENT FOR APPELLANT:
Lowell E. Spencer
Paintsville, KY
J.D. Atkinson
Greenup, KY
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