Prosser v. Horis A. Ward, Inc.

180 S.E.2d 270, 123 Ga. App. 205, 1971 Ga. App. LEXIS 1162

Opinion

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 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.