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PROSSER v. HORIS A. WARD, INC.
45863.
JORDAN, Presiding Judge.
Action on contract. Fulton Civil Court. Before Judge Wright.
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.
Powell, Goldstein, Frazer & Murphy, C. B. Rogers, Henry Young, for appellee.
John Harris Paer, Nancy S. Cheves, for appellant.
ARGUED JANUARY 7, 1971 -- DECIDED JANUARY 22, 1971.
Friday May 22 16:09 EDT


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