In event of damage to grave of deceased person, right of action, if any, is first in surviving husband or wife, and if there is no surviving husband or wife then the right is in the next of kin in order of their relation to decedent. Southern Life Health Ins. Co. v. Morgan, 21 Ala. App. 5, 105 So. 161, 168; Ex parte Southern Life Health Ins. Co., 213 Ala. 413, 105 So. 168; Jefferson County Burial Soc. v. Scott, 218 Ala. 354, 118 So. 644; Jordan Undertaking Co. v. Asberry, 230 Ala. 97, 159 So. 683; Gostkowski v. Roman Catholic Church, 262 N.Y. 320, 186 N.E. 798; Johnson v. Kentucky-Virginia Stone Co., 286 Ky. 1, 149 S.W.2d 496; North East Coal Co. v. Wells, 253 Ky. 11, 68 S.W.2d 760; Smith Gaston Funeral Directors v. Wilson, 262 Ala. 401, 79 So.2d 48; Smith Gaston Funeral Directors v. Dean, 262 Ala. 600, 80 So.2d 227. In trespass for injury to common property all tenants in common must join as plaintiffs.
"The rule above stated is consonant with this court's expressions as to the right of action for unlawful interference with the burial of deceased relatives. Southern Life Health Ins. Co. v. Morgan, 21 Ala. App. 5, 105 So. 161, certiorari denied, 213 Ala. 413, 105 So. 168; Jefferson County Burial Soc. v. Scott, 218 Ala. 354, 118 So. 644."
22A Am.Jur.2d Dead Bodies § 86, p. 56 (1988); Vogelaar v. United States, 665 F. Supp. 1295 (E.D.Mich. 1987); Whitehair v. Highland Memory Gardens, Inc., 327 S.E.2d 438 (W.Va. 1985); Dumouchelle v. Duke University, 69 N.C. App. 471, 317 S.E.2d 100 (1984); Simpkins v. Lumbermens Mut. Casualty Co., 200 S.C. 228, 20 S.E.2d 733 (1942); Steagall v. Doctors Hospital, 171 F.2d 352 (D.C. 1948); Southern Life Health Ins. Co. v. Morgan, 21 Ala. App. 5, 105 So. 161 (1925); Edwards v. Franke, 364 P.2d 60 (Alaska 1961); Pettigrew v. Pettigrew, 207 Pa. 313, 56 A. 878 (1904). But see Restatement (Second) of Torts § 868, comment g. Therefore, absent physical injury manifesting emotional distress, we hold that only the spouse, or next surviving kin, may bring a cause of action pursuant to this exception.
Restatement (Second) of Torts § 868 (1979); Annot., 48 A.L.R.3d 240, 245 (1973); Annot., 48 A.L.R.3d 261, 264 (1973); see Dumouchelle v. Duke University, 69 N.C. App. 471, 317 S.E.2d 100 (1984); Simpkins v. Lumbermens Mut. Casualty Co., 200 S.C. 288, 20 S.E.2d 733 (1942). This is usually the surviving spouse, Steagall v. Doctors Hospital, 171 F.2d 352 (D.C. 1948); Southern Life Health Ins. Co. v. Morgan, 21 Ala. App. 5, 105 So. 161 (1925); Edwards v. Franke, 364 P.2d 60 (Alaska 1961); Pollard v. Phelps, 56 Ga. App. 408, 193 S.E. 102 (1937); Finn v. City of New York, 70 Misc.2d 947, 335 N.Y.S.2d 516 (1972), reversed on other grounds, 76 Misc.2d 388, 350 N.Y.S.2d 552 (1973); Apostle v. Pappas, 154 Misc. 497, 277 N.Y.S. 400 (1935); Pettigrew v. Pettigrew, 207 Pa. 313, 56 A. 878 (1904); Annot., 48 A.L.R.3d 240, 243 (1973), provided that he or she was living with the decedent at the time of death, Southern Life Health Ins. Co. v. Morgan, supra; Steagall v. Doctors Hospital, supra; Teasley v. Thompson, 204 Ark. 959, 165 S.W.2d 940 (1942), and has not waived his or her right. Southern Life Health Ins. Co. v. Morgan, supra; Teasley v. Thompson, supra; Apostle v. Pappas, supra; Gostkowski v. Roman Catholic Church of Sacred Hearts of Jesus and Mary, supra. If the spouse is deceased, the cause of action passes to the next of kin, in order of relation established by the statute governing intestate succession. Teasley v. Thompson
The plaintiff, being the nearest relative present, is a proper party to bring the action in tort, irrespective of any other possible theory of recovery. Southern Life Health Ins. Co. v. Morgan, 21 Ala. App. 5, 105 So.2d 161, cert. denied, 213 Ala. 413, 105 So. 168 (1925). Appellees allege, as another ground for affirmance, however, that appellant's non-trespass claim is barred by the applicable one year statute of limitations.
The petitioner could have sought relief in that proceeding by going forward to establish her entitlement to custody of the body, thus giving Judge White an opportunity to rule upon that issue. Cf. Sou. Life Health Ins. Co. v. Morgan, 21 Ala. App. 5, 10, 105 So. 161 (1925). And see Jordan Undertaking Co. v. Asberry, 230 Ala. 97, 159 So. 683 (1935).
The blood sample, being a part of the remains of the deceased, is due to be returned to the surviving spouse (the plaintiff-appellee here) who has a paramount right thereto. Southern Life Health Ins. Co. v. Morgan, 21 Ala. App. 5, 105 So. 161 (1925), cert. den., 213 Ala. 413, 105 So. 168. The judgment of the trial court is affirmed to the extent that the blood sample is ordered to be returned to appellee.
To establish the existence of a custom, it must be shown that the custom was general in character, had existed a long period of time and was known or should have been known to all the parties involved in the transaction. Southern Life Health Ins. Co. v. Morgan, 213 Ala. 413, 105 So. 161; Herring v. Skaggs, 73 Ala. 446; Byrd v. Beall, 150 Ala. 122, 43 So. 749. A question directed to a witness as to what he usually did is illegal and immaterial to establishment of a custom. 10 Words Phrases, Custom, p. 729; Sloss-Sheffield S. I. Co. v. Smith, Ala., 40 So. 91.
Cited the following: Jefferson County Burial Society v. Scott, 147 So. 634; Kirksey v. Jernigan, 45 So.2d 188; Southern Life and Health Ins. Co. v. Morgan, 105 So. 161; Wright v. Hollywood Cemetery Corp., 112 Ga. 884, 52 L.R.A. 621. McGEHEE, C.J.
The Court of Appeals of Alabama has said: "The right of a father to care for, watch over, and bury the dead body of his minor child has always been recognized and protected by the law." Birmingham Transfer Traffic Co. v. Still, 61 So. 611. Also in Southern Life Health Ins. Co. v. Morgan, 105 So. 161: "It is without conflict in this case that plaintiff was the father of the deceased; that, if he (the deceased) had a wife living, the wife was not present and had nothing to do with the custody of the body. In the absence of the wife the father had the lawful custody of the body, and it was his duty to give it decent interment.