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. 161, cert. denied, 213 Ala. 413, 105 So. 168 (1925). Appellees allege, as another ground for affirmance, however, that [the plaintiff]'s non-trespass claim is barred by the applicable one year statute of limitations. . . .
Instead, Alabama appears to follow the principle, which is generally accepted in other jurisdictions within the United States, that "the right to possession of a body for the purpose of burial belongs to the surviving spouse" or, in the absence of such a spouse, "the next of kin." Id.; see also Southern Life Health Ins. Co. v. Morgan, 21 Ala.App. 5, 10, 105 So. 161, 166 (opinion on rehearing holding that the "quasi-property" right of possession of a dead body for burial is a legal and judicially protectible right that devolves to the decedent's next of kin in the absence of a spouse), cert. denied, 213 Ala. 413, 105 So. 168 (1925). Moreover, because at common law "burial of the dead is of ecclesiastical cognizance," Deavors v. Southern Express Co., 200 Ala. 372, 373, 76 So. 288, 289 (1917), the circuit court, having general equity jurisdiction in direct succession to English ecclesiastical courts ( see §§ 12 — 11 — 31(1), Ala. Code 1975, and Northcom, Ltd. v. James, 694 So.2d 1329, 1341 (Hooper, C.J., concurring in the result)), was empowered to determine questions arising in this case concerning the right to possess and dispose of the decedent's body.
"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.
No matter in whom the right of burial rests, it is in the nature of a sacred trust for the benefit of all who may, from family ties or friendship, have an interest in the remains. Southern Life Health Ins. Co. v. Morgan, 21 Ala. App. 5, 105 So. 161, cert. den. 213 Ala. 413, 105 So. 168 (1925); Teasley v. Thompson, 204 Ark. 959, 165 S.W.2d 940 (1942); Wales v. Wales, 21 Del. Ch. 349, 190 A. 109 (1936). The right of sepulchre is not absolute, but must yield when in conflict with the public good, or the demands of justice require a subordination.
By appellant's first issue, the contention is made in brief of her counsel that the trial court committed error "in admitting evidence seized during an autopsy of the body of defendant's deceased spouse" consisting of six bullets removed during an autopsy performed upon the body of the deceased by Dr. Joseph Embry "over objections challenging the seizure of items on constitutional grounds," which projectiles were identified as having been fired from the weapon seized at defendant's residence. In support of the first issue of appellant, her counsel argues that "The law of Alabama vests in a surviving spouse a possessory interest in the remains of a deceased spouse" and cites Rehling v. Carr, 295 Ala. 366, 330 So.2d 423 (1976), and Southern Life Health Insurance Co. v. Morgan, 21 Ala. App. 5, 105 So. 161 (1925). Response is made in brief of counsel for appellee to the position taken by counsel for appellant that appellant's Constitutional argument is totally irrelevant as the autopsy of Jerry Merrell Usrey was authorized under § 15-4-2, Code of Alabama, 1975, which states:
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.