dissenting. Upon examination of the record in this case and the law in reference thereto, I feel constrained to join Judge Evans and dissent from the majority ruling in the case. The majority affirms the grant of a summary judgment for the defendant on the theory that the evidence demands a finding plaintiff consented to the alleged tort because of the rules and regulations of the defendant cemetery which were a part of the contract. I dissent based upon substantially three propositions, one of which was not passed upon by the majority.
1. There is evidence which authorizes a finding that the interment lot selected, bought and paid for, was the lot on which plaintiff’s husband was originally buried before his alleged unauthorized disinterment by the defendant, and that the error was one of description in the deed and not an error of interment; and the contract between the parties wherein the plaintiff consented to disinterment in order to correct errors does not give permission to correct this type of error by moving the body from the lot actually purchased to a lot not purchased, but one described by error in the deed.
The deposition of Paul C. Blanchard, taken by defendant, reads in part: "Q. As I understand it, there was some misunderstanding about the cemetery lots, is that correct? A. As far as I’m concerned there wasn’t any misunderstanding, Mr. Hull. We went to the cemetery the day following my father’s death, on Sunday, my mother and myself, and I think there were some other members of the family, but I don’t recall. At that time, the time we arrived at the cemetery, we spoke with the lady, I believe her name is Mrs. McWilliams, and informed her that we wanted to buy a cemetery lot . . . Q. May I interrupt you — were you talking about getting a family section? A. We were talking about getting a two-grave lot. Q. Just for your mother and daddy? A. That’s right, because the rest of the family was spread out around. She suggested this section — I believe it was Section Seventy, I may be mistaken on the *200number — and with her in the car we rode around to this section. It was a new section, there were just a few graves in this section, and we stopped the car and got out and looked around, she asked what we thought of it, and it seemed acceptable. It seemed to be in the price category that was, in my opinion, commensurate with my father’s estate in life. She — -of course, we had our pick of the whole place — she said, 'How about this area right here?’ indicating close to the roadway — -and we looked. There was a large tree, you know, not too far away, and it was a pleasant site — it was on a hillside — and we all agreed that it looked very nice. She searched around on the ground and finally located an iron pipe. From this iron pipe she looked at her charts and plats and located a section . . . Q. Now when you are talking about 'she,’ you’re talking about the lady representing the people with the cemetery, is that correct? A. That is correct — I believe it was Mrs. McWilliams. After locating this iron pipe she located this particular plot and indicated that this was a two-grave lot, and wanted to know what we thought of it . . . This is a particular dislike of mine — in a cemetery, when you are walking, I don’t like to step on a grave, and I don’t always know where they are, so I liked this because you could see it. It was right close there. I also had the impression that it was very nice, the place she had showed us was not so crowded that you could not pull your car to the curb and get out of the car without having to step right on the grave. There was ample room back from the roadway, and this was to my liking — so with some little discussion among the family members, my mother agreed to buy this plot. We went back to the cemetery office, discussed the details of buying it ... Q. Go on, excuse me. A. That is the sum total of my recollection at this time of what transpired at the cemetery, regarding the buying of this lot — and as I stated at first, I don’t think there was any misunderstanding. I think it was clearly understood at that time what was going on. And, of course, when we went to the burial, which took place the following day, that same lot that we had been shown was opened, and the burial took place . . . Q. Now, the fact of the matter is that he was buried in a lot other that the lot that was sold to you, right? Mr. Burnside: I didn’t understand what counsel said — the lot that was sold, or the lot that . . . Mr. Hull: The lot that was sold to the *201family for the purpose of the burial of the father? A. In answer to your question, I’d have to disagree with that proposal. I contend that the lot that was sold to us was the lot that he was buried on ... Q. In other words, you stated that the lot your father was buried on was the lot that you saw and that you thought, and your mother thought, you had purchased, is that correct? A. That’s correct. That’s the lot that the lady found after having first found an iron pin in place. After finding that iron pin she located these lots and showed us these lots, and these are the lots that my mother agreed to and subsequently purchased.” (Emphasis supplied.) It cannot be seriously questioned that this evidence authorizes a finding that the burial occurred in the lot selected and paid for by the plaintiff and that the error was in the description contained in the deed.
While it is true the cemetery reserved the right "to correct any errors as may be made by it, either in making interments, disinterments, or removals, or in the description, transfer, or conveyance of any interment property,” the very section of the rules (3H) of the cemetery reserving such right also specified in what manner the corrections could be made. One of the manners was "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.” This clearly refers to correcting an error in a conveyance or deed. What does it say about errors in interment? "In the event the error shall involve thé 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.” This seems to only cover an error in placing a body on the wrong lot. If the evidence referred to above be believed by the jury, there was no consent given by the contract to remove the body. It therefore appears that the contract between the parties wherein the plaintiff consented to disinterment in order to correct errors does not give permission to correct this type of error by moving the body from the lot purchased to a lot not purchased, *202but described by error in the deed.
2. However, assuming for the purpose of argument that the contract should be construed as giving such permission to disinter the body under these circumstances where there was an error only in the deed, this permission given, by proper construction of the contract, was only a permission to lawfully disinter the body; and the disinterment without a permit under Section 88-1717 (e) of the New Public Health Code (Ga. L. 1964, pp. 499, 591; Code Ann. § 88-1717 (e)) was an unlawful disinterment and therefore does not comport with the permission given under the contract. The case under the facts, then, must be considered in the light that the disinterment was done without permission of the plaintiff and without lawful authority. It is not necessary to construe the contract most strongly against the maker to reach this conclusion; unless the language of the contract demands it, we should not assume that it gives consent to do an unlawful act, particularly so in view of Rule 3-A which states that: "All interments, disinterments and removals are made subject to the orders and laws of the properly constituted authorities of the city, county, and state.” The defendant, having admitted the disinterment, and the evidence demanding a finding that the disinterment was without the permission of the plaintiff, the defendant is not entitled to a summary judgment unless the last sentence in paragraph 3-H of the rules releases it from liability. This sentence reads as follows: "The cemetery shall not be liable for damages for any error so made.” The evidence will authorize a finding that the error here was made in the disinterment of the body and its removal to an adjacent lot. Construing the contract most strongly against the maker thereof, this language should be held to relieve the defendant from liability from negligent acts only. I can see no other construction when the word "error” is used in the language of the release. See also Hawes v. Central of Ga. R. Co., 117 Ga. App. 771, 772 (162 SE2d 14).
It then becomes necessary to determine whether the evidence would have authorized a finding by a jury that the disinterment was intentionally made. From what is said above, it clearly appears that the disinterment was done without the consent of the plaintiff and was done unlawfully, without securing a permit.
*203While there is evidence that the defendant sought to contact the plaintiff at her last address to inform her of the proposed disinterment, it also appears from the evidence that when the plaintiff discovered that the disinterment had been made, the defendant denied that the disinterment had occurred. Under these circumstances, a jury would be authorized to find that the tort, the removal of the body without the consent of the plaintiff, was intentionally done, rather than being the result of a negligent error. Accordingly, the trial court erred in granting the defendant a summary judgment, the defendant not having shown there was a lack of issues as to material facts to be determined by a jury on the trial of the case. The trial judge should be reversed.
The above expresses my opinion as to a proper disposition of this case. However, I think it appropriate that I discuss some of the contentions that have been made inimical to the conclusion I have reached.
One of these contentions is that the ruling in Gulf Oil Corp. v. Stanfield, 213 Ga. 436, 437 (99 SE2d 209) that "[a] breach of duty to the State does not necessarily involve a breach of duty to others. Hence the violation of a penal statute can not be relied upon as actionable negligence, unless such violation is the proximate cause of the injury” precludes a recovery here. In that case, it was held that the erection of a sign without a license near a roadway or upon a roadway was not, as a matter of fact, the proximate cause of the injuries sustained in the case, but that the sole proximate cause of the injury was the intervening act of another party. We have no such situation here for the reasons that (1) this is not an action based on negligence and (2) the breach of duty by not complying with the law in securing a disinterment permit performs two functions in this case (1) destroys the defendant’s defense that it had secured the plaintiff’s permission and (2) such fact becomes an integral part of the evidence tending to show an intentional tort on the part of the defendant.
The other contention is that § 88-1717 (e) of the New Public Health Code only applies to removing a body from one cemetery to another rather than from one grave to another in the same cemetery "as transit” of the body is contemplated by the permit, required in that section. That section reads as follows: "Permits. *204—(a) The funeral director or person acting as such who first assumes custody of a dead body or fetus shall obtain a burial-transit permit prior to the final disposition or removal from the State of the body or fetus within 72 hours after death or at least 24 hours before removal from the State, (b) Such burial-transit permit shall be issued by the registrar of the district where a satisfactorily completed certificate of death or fetal death is filed, (c) A burial-transit permit issued under the law of another State which accompanies a dead body or fetus brought into this State shall be authority for final disposition of the body or fetus in this State, (d) Burial-transit permits shall not be required where disposition of fetal remains is within the hospital of occurrence and a registry of such events is maintained by the hospital, (e) A permit for disinterment and reinterment shall be required prior to disinterment of a dead body or fetus except as authorized by regulation or otherwise provided by law. Such permit shall be issued by the local registrar of the district in which the cemetery where the body was originally interred is located to a licensed funeral director, embalmer, or to the person acting as such upon application filed in accordance with the rules and regulations promulgated hereunder, (f) The department shall prescribe all regulations necessary to regulate the disposal, transportation, interment, and disinterment of dead human bodies to the end that requirements of vital registration are met and the protection of the public health promoted.” While transit seems to be contemplated by paragraphs (a), (b), (c), and (d) requiring a "burial-transit permit” there is absolutely nothing in paragraph (e) that lends credence to the conclusion that paragraph (e) only applies to the disinterment of a body when it is to be removed to another cemetery. Paragraph (e) can clearly apply to the present case where the body is in transit from one grave to another in the same cemetery, and will even cover a situation where a body is disinterred and then re-interred in the same grave.