Prosser v. Horis A. Ward, Inc.

Jordan, Presiding Judge. The plaintiff, an undertaking establishment, commenced this action to recover on a contract dated December 22, 1968, purportedly signed by the defendant, for the funeral and burial of her deceased mother. The defendant moved for a directed verdict on the ground that the contract was made on Sunday, in violation of Code Ann. §26-9908 (former Code § 26-6905) and therefore unenforceable. The trial judge sustained the motion but, following judgment on the verdict, granted a new trial, from which the defendant appeals. Held: 1. In our opinion an agreement made on Sunday for the funeral and burial of a person then deceased, irrespective of the date of performance, is ordinarily to be regarded as a work of necessity, and cannot be regarded as a matter of law as showing a violation of Code Ann. § 26-9908, which excepts "works of necessity” from the Sunday activities proscribed as a misdemeanor offense, so as to constitute an illegal transaction which is void under Code § 20-501 or unenforceable as contrary to public • policy under Code §20-504. See Donovan v. McCarty, 155 Mass. 543, 547 (30 NE 221); Carton v. Shea, 312 Mass. 634 (45 NE2d 826). 2. No reason is argued and insisted upon which would authorize this court to disturb the first grant of a new trial on a motion which covers nothing more than the usual general grounds and [206] alleged error in directing a verdict not demanded by the evidence. Argued January 7, 1971 Decided January 22, 1971. John Harris Paer, Nancy S. Cheves, for appellant. Powell, Goldstein, Frazer & Murphy, C. B. Rogers, Henry Young, for appellee. Judgment affirmed. Quillian and Evans, JJ., concur.