The alleged claim of the plaintiff, Mrs. Hazel Blanchard, is predicated on an intentional tort in moving the body of her late husband, Paul Blanchard, and the monument, from one grave site to another. She appeals from the grant of a summary judgment for the defendant.
Paul Blanchard died on August 24, 1968. The next day Mrs. Blanchard, accompanied by a representative of the defendant, selected a grave site, and agreed to purchase what she believed to be the site selected and another, described in the written contract as Lot 350, Section 70, Sites 1 and 2. On August 27, 1968, the body was interred in the cemetery in a site which was satisfactory to Mrs. Blanchard, and which she thought was the site she had selected and had contracted to purchase. In addition to the purchase price of the lot Mrs. Blanchard paid an additional fee for opening and closing the grave.
*196About September, 1969, an employee of the defendant determined that the grave was in fact located on Lot 344, Section 70, Site 1, a grave site immediately adjacent to Lot 350. Upon being made aware of the discrepancy between the recorded burial site and the actual burial site the defendant’s general manager attempted to reach Mrs. Blanchard on one occasion by telephone, but he was unsuccessful. In August, 1969, she had moved to Augusta, but had not informed Westview of her change of address.
Without any further effort to contact Mrs. Blanchard, the general manager then directed the transfer to a grave site one grave site nearer to a road, a distance of some three feet, so that its new location corresponded in fact to the records. This transfer, including the monument, was accomplished without notice to Mrs. Blanchard. When Mrs. Blanchard visited the cemetery and discovered the move she telephoned the office of the cemetery, and was informed by an employee, who examined the contract and interment request and noticed that the lot number on both was the same, that her late husband was buried in the correct location. This employee was unaware of the actual transfer from one site to another. When this employee informed the manager that Mrs. Blanchard had inquired about the grave, he informed Mrs. Blanchard by letter that her late husband was buried in the correct location, but omitted any reference to the transfer.
The contract for the purchase of the lot contains the following: "It is hereby agreed and understood by and between the parties hereto that said burial space(s) are bought subject to the rules of the seller, and the buyer expressly agrees to be bound by all such rules and all amendments and new rules hereafter adopted.”
Included among the rules and regulations of the cemetery are the following:
"All interments, disinterments and removals must be made at such time, in such manner and subject to the payment of such charges as fixed by the cemetery management. Rule 3-13.”
"The cemetery reserves, and shall have, the right to correct any errors that may be made by it either in making interments, *197disinterments or removals, or in the description, transfer, or conveyance of any interment property, either by cancelling such conveyance and substituting and conveying in lieu thereof other interment property of equal value and similar location as far as possible, or as may be selected by the cemetery, or, in the sole discretion of the cemetery, by refunding the amount of money paid on account of said purchase. In the event the error shall involve the interment of the remains of any person in such property, the cemetery reserves and shall have, the right to remove and re-inter the remains to such other property of equal value and similar location as may be substituted and conveyed in lieu thereof. The cemetery shall also have the right to correct any errors made by placing an improper inscription, including an incorrect name or date, either on the memorial or on the container for cremated remains. The cemetery shall not be liable in damages for any error so made.” Rule 3-H.
"It shall be the duty of the lot owner to notify the cemetery of any change in his Post Office address. Notice sent to a lot owner at the last address on file in the office of the cemetery shall be considered sufficient and proper legal notification for all purposes.” Rule 15-A.
1. The making of an agreement on Sunday, August 25, 1968, for the purchase of a lot in which to bury a spouse who died the previous Saturday is, in our opinion, a work of necessity excepted from the statutory prohibition (former Code § 26-6905, now Code Ann. § 26-9908) applicable to work on Sunday. See the recent case of Prosser v. Horis A. Ward, Inc., 123 Ga. App. 205 (180 SE2d 270).
2. Regardless of whether Mrs. Blanchard ever received or examined the rules and regulations of the cemetery they are a part of the contract of purchase which she signed. The fact that the final sentence of Rule 3-H is an exculpatory clause purporting to relieve the cemetery from liability has no real relevancy in disposing of the present case, for in our opinion the action of the cemetery in moving the grave to a site corresponding to the record of the site purchased and the site designated for interment is clearly authorized by the provisions of Rule 3-H preceding the exculpatory clause. Being an action authorized under *198and pursuant to the contract which is shown to have been executed in a reasonable manner in good faith, it cannot be termed wrongful in any sense of the word to give rise to a claim based on an intentional tort on account of the fact that the transfer was accomplished without the knowledge or approval of the plaintiff. If there be a loss by reason of the emotional impact on the plaintiff, this is clearly a case of damnum absque injuria.
Argued February 2, 1971 Decided June 8, 1971 Rehearing denied July 9, 1971In view of the contract, and the authority of the cemetery under its rules and regulations which were a part of the contract, we consider it immaterial that a genuine issue of fact may exist in respect to the manner in which the error arose, i.e., whether the contract and interment record represent the site actually selected by the plaintiff, or whether the original place of interment is the site selected and which the plaintiff intended to purchase. See West View Corp. v. Alston, 208 Ga. 122 (65 SE2d 406); Goodwin v. Candace, Inc., 92 Ga. App. 438 (88 SE2d 723).
3. It is contended that a permit is not required for disinterment and reinterment within the same cemetery, but that such permit is required only when a body is removed from one cemetery to another where transit is involved. This seems to be the clear import of Code Ann. §88-1717 (e) when read in its entirety, the second sentence requiring that "such permit” shall be issued by the registrar in the district where the body was "originally interred.” But whether or not such a permit was required, such could not within itself give rise to a cause of action or to a claim. The mere violation of a statute, even though it be penal, cannot be relied upon as actionable negligence, unless such violation is the proximate cause of the injury. See Gulf Oil Corp. v. Stanfield, 213 Ga. 436 (99 SE2d 209), for a citation of cases supporting this principle of law.
Judgment affirmed.
Bell, C. J., Hall, P. J., Eberhardt, Deen and Quillian, JJ., concur. Panned, Whitman and Evans, JJ., dissent. *199Sanders, Hester, Holley, Ashmore and Boozer, Thomas R. Burnside, Jr., A. Montague Miller, Fred K. Harvey, Jr., for appellant. Powell, Goldstein, Frazer & Murphy, Frank Love, Jr., Randall L. Hughes, for appellee.