Rhodes Mut. Life Ins. Co., Inc. v. Moore

• Decision Date: 23 August 1991
• Citation: 586 So.2d 866
• Parties: RHODES MUTUAL LIFE INSURANCE COMPANY, INC. v. Robert MOORE and George Moore, Jr. 1900591.
• Court: Alabama Supreme Court

Page 866

586 So.2d 866

RHODES MUTUAL LIFE INSURANCE COMPANY, INC. v. Robert MOORE and George Moore, Jr.

1900591.

Supreme Court of Alabama.

Aug. 23, 1991.

Horace Moon, Jr. and William A. Donaldson, Mobile, for appellant.

Michael T. Murphy and John T. Bender, Mobile, for appellees.

HOUSTON, Justice.

Rhodes Mutual Life Insurance Company, Inc. ("Rhodes"), appeals from the judgment entered on a $75,000 jury verdict in favor of Robert Moore and George Moore, Jr., in this action to recover damages for the negligent desecration of a grave. We affirm.

Robert Moore and George Moore, Jr., are the great-grandson and the great-great-grandson, respectively, of the late Bob Moore, who died in 1975 and was buried at St. Austin's Cemetery in Mobile. Rhodes was the owner of the cemetery at the time of the incident made the basis of this action. George Moore, Sr., who is the brother of Robert Moore and the father of George Moore, Jr., chose not to participate in this action, and, although he was present during the trial of the case, he was never made a party.

The material evidence, viewed in the light most favorable to the plaintiffs, as our standard of review requires us to view it, Deupree v. Butner, 522 So.2d 242 (Ala.1988), is aptly summarized in the plaintiff's brief:

"On Easter Sunday of 1987, George Moore Jr., went to St. Austin's to visit the grave of his great, great grandfather. He was accompanied by ... Mr. Charles Davis. George Moore Jr., was raised in the same house with his great, great grandfather and consequently was very close to him. On this occasion, George Moore Jr., and Charles Davis went to the grave of the late Bob Moore and attempted to pull some weeds that had grown up around the headstone. George Moore described the headstone as being a vertical headstone placed on the ground that stood about eighteen inches high. He further stated that the family, including himself and Robert Moore, all contributed to the initial cost of the headstone.

"Mr. George Moore went on to say that he had the opportunity to return to the cemetery on Mother's Day, approximately two weeks later. ^* His uncle, Robert Moore, accompanied him. At one point, the men went to the site where the late Bob Moore's grave and headstone had been two weeks prior, however, it was nowhere to be found, and instead, two fresh graves were in its place. The cemetery owner/Rhodes Life Insurance [was] contacted and a search for the grave site and headstone was conducted, but no traces were found. The search was visual only, as the Defendant kept no records of the location of any particular individuals.

"The only individual having any knowledge of grave locations was a gravedigger named Lyles. Neither he nor anyone else was able to locate Mr. Bob Moore's grave site. Mr. Ronald Ali, the vice president of Rhodes Life Insurance, when asked if he thought it was a prudent practice to run a cemetery without keeping records of where the people are buried, answered that 'he didn't think so.' The only person who claimed to know where Mr. Bob Moore was buried was Mrs. Lillian Lovett, a one-time owner of the cemetery. She stated on direct exam that Mr. Bob Moore was buried next to a Mr. Woodrow Jones. A cross-examination of Mrs. Lovett revealed that she was unclear as to why she happened to be able to remember where Mr. Bob Moore was buried, and further revealed that she could not remember the names of anyone else buried in the alleged vicinity of Mr. Bob Moore's grave site. To this date, the Defendant cannot tell the Plaintiffs where the grave or headstone of Bob Moore is located."

Rhodes contends that the trial court erred in denying its motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. It argues (1) that because George Moore, Sr., was alive at the time this action was filed, George Moore, Jr., had no standing to prosecute an action for damages; (2) that George Moore, Sr., who, as previously noted, was not made a party to this action, was an indispensable party under Rule 19, Ala.R.Civ.P.; and (3) that the evidence was insufficient to warrant submitting the negligence claim to the jury.

The plaintiffs argue (1) that George Moore, Jr., had standing to join in this action because of his close relationship to the deceased; (2) that the trial court did not err in determining that George Moore, Sr., was not an indispensable party under Rule 19; and (3) that the evidence was sufficient to create a fact question as to whether Rhodes had negligently caused the desecration of Bob Moore's grave. We agree.

In Hogan v. Woodward Iron Co., 263 Ala. 513, 83 So.2d 248 (1955), this Court held that the deceased's daughter could not prosecute an action for damages allegedly resulting from the desecration of the deceased's grave, where the widow was still alive. The following rule was stated:

"Upon thorough examination of our decisions concerning interference with burial sites, we note that in every case before us the proper parties plaintiff have been the surviving spouse or the next of kin, in order (or the question of proper parties was not raised). Among the cases see Smith and Gaston Funeral Directors, Inc. v. Dean, [262 Ala. 600, 80 So.2d 227 (1955) ]; Smith and Gaston Funeral Directors, Inc. v. Wilson, [262 Ala. 401, 79 So.2d 48 (1955) ]; Holder v. Elmwood Corp., [231 Ala. 411, 165 So. 235 (1936) ]; Bessemer Land & Improvement Co. v. Jenkins, 111 Ala. 135, 18 So. 565; Bonham v. Loeb, 107 Ala. 604, 18 So. 300. From the foregoing cases and from our consideration of the ties that bind the survivors to the deceased, we conclude the rule applicable to parties plaintiff in a case of this kind to be: In the event of damage to the grave of a deceased person, the right of action, if any, accrues first to the surviving spouse unless, of course, there are special circumstances, such as a failure of the surviving spouse to act, or the couple was separated at the time of death and an heir or next of kin had the deceased interred. See Gostkowski v. Roman Catholic Church, etc., cited infra. If there is no surviving spouse, the right is in the next of kin in the order of their relation to the deceased. The logic of this rule is well stated in a similar New York case wherein the Court of Appeals, through Chief [Judge] Pound, held:

" 'As to the son's case, we conceive the rule to be that the surviving spouse whose duty it is to bury the deceased has the sole right to sue, during his or her lifetime, for damages due to interference with the dead body. To such a one is intrusted the duty to guard the dead. True it may be that he may neglect to exercise such right. Others may then act. Possibly the surviving members of the deceased's family might join as plaintiffs (Boyle v. Chandler, 3 W.W. Harr. 323 , 138 A. 273), but it is inconceivable that each member of the family could maintain a separate action to recover for mental pain and anguish. In the multitude of such actions there is injustice. The son, therefore, had no cause of action. The complaint was properly dismissed. Const. art. VI, § 8.' Gostkowski v. Roman Catholic Church, etc., 262 N.Y. 320, 325, 186 N.E. 798, 800.

"This rule also prevails in Kentucky: Johnson v. Kentucky-Virginia Stone Co., 286 Ky. 1, 149 S.W.2d 496; North East Coal Co. v. Pickelsimer, 253 Ky. 11, 68 S.W.2d 760.

"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."

263 Ala. at 515, 83 So.2d at 249.

The rule stated in Hogan clearly contemplates that when there is no surviving spouse, as in this case, the right to bring an action for the desecration of a grave vests in the next of kin in the order of their relation to the deceased; and that all individuals occupying the same degree of kin should join in the action so as not to subject the defendant to the risk of a multitude of different actions. See, also, Holleman v. Elmwood Cemetery Corp., 295 Ala. 267, 327 So.2d 716 (1976). However, we do not think that this rule should be applied so narrowly as to automatically preclude a more distant relative of the deceased, who had had a very close and intimate relationship with the deceased, from joining in an action with a member of the deceased's family closer in relation to the deceased. In Levite Undertakers Co. v. Griggs, 495 So.2d 63, 65 (Ala.1986), this Court, rejecting the defendants' contention that only the closest living relative could maintain an action for the wrongful detention of remains, noted that the plaintiffs (the widow and two children) were not fighting among themselves for possession of the remains, but, instead, stood "united against their common antagonists--each equally suffering injury under their hands." We note that other courts have also recognized that the rule of priority enunciated in Hogan should be applied with reason. Those courts have stressed that the particular circumstances of the case should be examined to see whether there had been a special intimacy or association between the plaintiff and the defendant. See, e.g., Sullivan v. Catholic Cemeteries, Inc., 113 R.I. 65, 317 A.2d 430, 433 (1974) ("This rule of priority is to be applied with reason. It is flexible and may be modified by circumstances of the moment."); North East Coal Co. v. Pickelsimer, 253 Ky. 11, 68 S.W.2d 760 (1934) (cited by this Court in Hogan ); see, also, 22A Am.Jur.2d Dead Bodies § 25 (1988) and the cases collected at n. 23; 77 A.L.R. 4th Desecration of Grave, § 108, § 152 (1990).

In the present case, the close relationship between George Moore, Jr., and his great-great-grandfather is best illustrated by the testimony of George Moore, Jr., at trial:

"Q. Mr. Moore, you're testifying essentially that you're--you moved...