The complaint upon which the recovery was had consisted of one count as follows:
“Count 2. The plaintiff claims of the defendants the sum of if5,000, as damages, for that heretofore, to wit, on the 30th day of July, 1921, the plaintiff had the custody of the remains of his dead son, James Morgan, Jr., for burial, and the defendant L. O. Lowe, a servant, agent, or employee of the defendant Southern Life & Health Insurance Company, a corporation, while acting within the line and scope of his employment, obtained from the plaintiff and wrongfully faded and refused to surrender to him on his due demand therefor a medical certificate of death made and signed by the physician last in attendance on the plaintiff’s said dead son, and upon such form, and containing such matter, as was provideu for by law as one of the prerequisites to the obtaining of a permit for burial of such decedent, and, as a proximate consequence of such wrongful failure and refusal, the plaintiff was compelled to leave said remains in the hands of an undertaker while he went in search of said physician for the purpose of securing another such certificate, and to postpone the burial of his said son for a long time, to wit, 24 hours, and by reason thereof said remains decayed or decomposed to such extent that they had to be buried quickly and without ceremony with only the undertaker, the driver of the hearse, and the gravedigger present, and the plaintiff was prevented from attending the last sad rites, and from paying a final tribute to his dead by having a befitting funeral service conducted, and deprived, contrary to his expectations, of, the presence, comfort, consolation, and assistance which would have been rendered and extended to him in and about said burial by Eugenia Morgan, his wife, Herbert Morgan,, his son, Susie Morgan and Christine Morgan, his daughters, and divers other close relatives and friends, suffering thereby great trouble and inconvenience and also great mental pain and anguish, for all of which he sues.”
As against a wrongdoer, the nearest relation of the dead person present may maintain an action for a** unwarranted interference with the burial of the body. The action is for a tort giving rise to an action irrespective of any contract in relation to the preparation for the burial. This plaintiff being the nearest relation present is a proper party plaintiff. 8 R. C. L. p. 696, par. 19, 17 Corpus Juris, 1145 (20) 3.
The complaint states a cause of action and is not subject to any of the grounds of demurrer assigned. The plea was the general issue, and therefore, if the plaintiff proved the material allegations of the complaint to the reasonable satisfaction of the jury, he would be entitled to compensatory damages for the trouble and delay brought about as a proximate result of the wrong committed, as well as the loss of the consolation of plaintiff’s wife and relatives at the time of the burial of his son. The plaintiff, in this action could not recover for mental pain and anguish and as to this the court so charged the jury, thereby eliminating that claim from the complaint. All of these questions were controverted, and were properly submitted to the jury.
Charges 3, 4, and 6, given in writing at the request of plaintiff were correct state
As has heretofore been pointed out the questions as to a recovery of compensatory damages were properly submitted to the jury, and therefore charges asking affirmative instructions as to recovery in favor of defendants or either of them were properly refused. The plaintiff was not claiming punitive'damages, and the court confined the recovery to compensatory damages for the wrong done to plaintiff by the wrongful interference with the burial of the body of his son, and hence charges 4, 5, 8, 9, and 18 refused to defendants were abstract. It is the intentional withholding and refusal to deliver the death certificate -which'gives the plaintiff the right of action, providing such wrongful act proximately cause the damage or injury.
Where, beside the inconvenience and delay arising to plaintiff, in being forced, through and by the wrongful act of defendant to obtain a second certificate of death from the attending physician, the plaintiff was also subjected to vexation, wrong, or distress of mind as natural, proximate, and reasonably to be expected consequences of the wrong complained of, these last-mentioned results may constitute a support for an award of additional compensatory. damages. It, therefore, follows that charges 6, 16, 17, 33, 34, 35, 36, 37, 43, and 46 were properly refused to defendant. East Tenn., etc., v. Lockhart, 79 Ala. 315; L. & N. R. R. v. Dancy, 97 Ala. 338, 11 So. 796; L. & N. R. R. v. Quick, 125 Ala. 553, 28 So. 14; A. C. G. & A. R. R. v. Brady, 160 Ala. 615, 49 So. 351; Taxicab Co. v. Grant, 3 Ala. App. 393, 57 So. 141.
It is without conflict in this case that plaintiff was the father of the deceased;' that, if he 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. 17 Corpus Juris, p. 1146 (24) 2. It follows that charges 7, 32, 41, and 42, reqiiested by defendants, were properly refused. As has heretofore been seen, the question of exemplary damages does not arise, and hence written charges 10, 14, and 15 were properly refused.
Under plea of the general issue “in short by consent,” the defendants might have shown that plaintiff did not use reasonable diligence in securing a second certificate of death, so as to minimize the damage on account of defendants’ wrong; but this was a question for the jury from all the evidence in the case, and, where as here there was evidence offering inferences pro and con, affirmative instructions were not appropriate. Ill. Cen. Ry. v. Elliott, 17 Ala. App. 134, 82 So. 582.
It yras relevant in this case to prove where the blank, certificates of the board of health were kept for the convenience of those requiring them. The fact that the body was not embalmed was relevant as going to show the urgent necessity of avoiding delay in carrying out the funeral arrangements. It was also relevant to show the length of time the body of the dead man remained in the undertaker’s shop before it could have been legally buried. Whether this evidence was technically objectionable at the time it was introduced is of no moment, as it was all later connected by the testimony of plaintiff. All of the facts and circumstances, connected with the burial, tending to show delay caused by the refusal of defendants to deliver the certificate of death, were relevant and admissible.
It was immaterial as to who were the members of plaintiff’s family at the time of the death of plaintiff’s son, but the questions and answers developing this testimony were of such a character as not to injuriously affect defendants’ rights, and the asking of leading questions is in the discretion of the trial court.
It was not relevant to any issue in this case as to when plaintiff obtained an insurance policy on the dead man from defendant company nor that suit on that policy was defeated on the ground of fraud. Such could only tend to multiply the issues.
A great number -of questions were propounded to witnesses by defendants, seeking to show that it had been the custom of the company in dealings with its policies to accept, as proof of death, the certificate of the attending physician. The rulings of the court on these questions gave rise to many exceptions here insisted upon. The custom of the defendant company in this regard did not bind this plaintiff. As matter of fact, such certificate was not designed for the insurance company, but was required by law for use in the burial of the body of plaintiff’s son. The court did not err in its several rulings on these questions, calling as they did for irrelevant and immaterial evidence. Whether the company accepted the doctor’s certificate as proof of death is beyond the question here. The question here is: Rid the defendants have the right to its possession after demand for its return?
If, as is stated in appellant’s, brief, plaintiff had testified that defendant Lowe “cursed” him at a certain time and place, it would have been error for the court to refuse to permit Lowe to testify that he did not do so; but the plaintiff testified, not that Lowe “cursed” him; but that Lowe said to him, “I won’t give you a God damn thing,” and at another time, “I’ll maul hell out of you.” If the questions had been framed writh reference to the two expressions above quoted, doubtless the court would have permitted the answer denying them.
The court in his oral charge proceeded
We find no reversible error in the record, and the judgment is affirmed.
Affirmed.