Kirksey v. Jernigan - 45 So. 2d 188 (Fla. 1950)

Rule:

In the absence of testamentary disposition to the contrary, a surviving spouse or next of kin has the right to the possession of the body of a deceased person for the purpose of burial, sepulcher or other lawful disposition which they may see fit. The invasion of such right by unlawfully withholding the body from the relative entitled thereto is an actionable wrong, for which substantial damages may be recovered.

Facts:

Appellant mother's five-year old child was accidentally shot and killed while appellant was temporarily absent. Appellee undertaker took the child's body to his establishment without appellant's authority or the authority of anyone authorized to act on her behalf. Appellant filed a tort action seeking compensatory and punitive damages and recovery of a fee. The trial court held for the appellee. Appellant then challenged the lower court judgment in favor of the appellee.

Issue:

Did the appellant have a cause of action for compensatory and punitive damages against the appellee? 

Answer:

Yes.

Conclusion:

The court stated the law that in the absence of testamentary disposition to the contrary, a next of kin had the right to the possession of the body of a deceased person for the purpose of burial, sepulcher, or other lawful disposition. The invasion of such right by unlawfully withholding the body from the relative entitled thereto was an actionable wrong for which substantial damages could be recovered. The court reversed the lower court judgment against appellant and remanded the case for trial because if the facts alleged were established at a trial, a recovery of punitive damages as well as damages for mental suffering and anguish could be justified.