dissenting. In August, 1968, Mrs. Hazel Blanchard purchased a cemetery lot and entered into a written contract with Westview Cemetery, Inc., for burial of her deceased husband, in Fulton County, Georgia. The burial took place within *205a day or so from the date of the contract. The written contract stipulated that it was "subject to rules of the seller” but no copy was attached to the written contract, and Mrs. Blanchard never saw a copy of same. It was shown that the principal salesman of the cemetery corporation had never seen a copy of the rules, and, in fact, so far as is disclosed by the record in this case, only one official of said corporation had ever seen the rules.
In September, 1969, after the passage of more than 12 months, the cemetery corporation contends it discovered the burial had taken place upon the wrong lot, and although there was no hurry for so doing, it desired to disinter the corpse and re-inter it on the correct lot. It also moved the grave marker or memorial which it contends it had a right to do to correct its error. See Rule 21-A of its Rules and Regulations.
The cemetery corporation also claimed the right to correct errors under Rule 3-H of its rules, which provides in pertinent part: "The cemetery reserves, and shall have the right to correct any errors that may be made by it either in making interments, disinterments, or removals, or in the description, transfer or conveyance of any interment property. . .”
However, attention is also called to Rule 3-A, that besides being subject to these rules and regulations, "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 cemetery corporation contends it made one telephone call in an effort to contact Mrs. Hazel Blanchard, and thereafter did absolutely nothing further to provide an opportunity for her and members of her family to be present at the disinterment and re-interment of her husband. It was shown that if a letter had been written to Mrs. Blanchard at her Atlanta address, she would have received it.
No permit for disinterment and re-interment was secured (or even applied for) nor was any funeral director or embalmer in charge of or present at the disinterment and re-interment of the corpse. Three gravediggers performed these rites, and Charles E. Bowen, vice president and general manager of the cemetery corporation, at some later date discussed the matter with them, and two of them were not sure as to how the disinterment and re-in *206terment were accomplished, and were not sure whether the vault was picked up out of the grave or whether it was "just moved down.” The said corporate official arrived after it had all been completed and had no knowledge as to what damage might have occurred to the vault or the casket or the body.
Mrs. Blanchard filed suit for damages against the cemetery corporation in Fulton Superior Court, alleging that "the aforesaid disinterment and re-interment of the body of petitioner’s deceased husband was performed by defendant without authority, in violation of law, and without notice to or consent of your petitioner and has resulted in injury and damage to petitioner’s peace, feelings, and happiness and has caused your petitioner extreme distress, agony, and mental anguish . . .” Motion for summary judgment was filed by defendant, and granted, and plaintiff appeals.
1. The disinterment and re-interment were accomplished in violation of the statutes of Georgia, and therefore afford plaintiff a cause of action. New Public Health Code, §88-1717 (e) (Ga. L. 1964, pp. 499, 591; Code Ann. § 88-1717 (e)) deals with this question and provides: "A permit for disinterment and re-interment 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.”
Appellee’s brief, at pp. 13-14, admits a failure to obtain said permit, and seeks to justify such failure under the following contentions: (a) This law applies only where the corpse is transferred from one cemetery to another cemetery; (b) Subsection (f) of the statute provides that same is to be implemented by regulations issued by the Department of Public Health, and counsel contends "no rules or regulations have ever been promulgated under this law.”
This justification is ineffectual as to both grounds. Respecting the question of whether the Department of Public Health has issued such rules and regulations, this court cannot take judicial *207notice of that fact, and the bare statement in appellee’s brief is not sufficient proof. Code § 38-112; Turner v. Brunswick Distributing Co., 95 Ga. App. 651 (98 SE2d 591); Hubbard v. Ruff, 97 Ga. App. 251, 256 (103 SE2d 134); Davis v. General Gas Corp., 106 Ga. App. 317 (1a) (126 SE2d 820); Peoples, Inc. v. Devane, 114 Ga. App. 597 (152 SE2d 649). But an apparent anomaly in the law exists since Sec. 8 of the Administrative Procedure Act of 1964 (Ga. L. 1964, pp. 338, 346; Code Ann. § 3A-108) authorizes the court to take judicial notice "of any rule which has become effective” pursuant to that law. We find no such rules, hence we cannot take judicial notice of any such rule, or even that no such rule has ever been promulgated. See Weil Bros. Cotton v. Harrold Bros., 118 Ga. App. 8 (2) (162 SE2d 309). But the failure of the Department of Public Health to promulgate rules and regulations to implement the statute affords no excuse for the cemetery’s failure to apply for a permit. The statute, Code Ann. § 88-1717 (e), supra, made it an absolute requirement that a permit be obtained prior to disinterment, "except as authorized by regulation or otherwise provided by law.” In other words, unless excused by regulation or law, the permit "shall be required prior to disinterment. . .” Hence, if no regulation was promulgated excusing failure to secure permit, said permit had to have been obtained prior to disinterment.
Further, as the cemetery wished to disinter the body, and as it had to secure a permit before so doing, the statute makes a clear and definite pronouncement as to the procedure it should have followed in order to have a regulation promulgated as follows: "An interested person may petition an agency requesting the promulgation, amendment or repeal of a rule . . . Within 30 days after submission of a petition, the agency either shall deny the petition in writing (stating its reason for the denial) or shall initiate rule-making proceedings in accordance with Section 4. . .” See Administrative Procedure Act, supra; Code Ann. §§ 3A-104, 3A-109.
It was therefore the duty of the cemetery to apply to the local registrar of the district in which the cemetery was located for a permit, and as it did not even apply, the question of its bad faith or good faith must be determined by a jury.
2. In cases of this kind, the question of good faith is paramount. *208It is stated in 22 AmJur2d 572, Dead Bodies, §23 (1965), that "Mere right or authorization to perform a disinterment and removal is not necessarily decisive. The act must be performed in a decent manner and with due regard of the rights of persons interested.”
Again, in Rivers v. Greenwood Cemetery, 194 Ga. 524, 526 (22 SE2d 134) the court, after deciding that a husband had the right to move his wife’s body from the space where it had been mistakenly buried, encumbered that right with the following condition: ". . . provided this right be exercised in a proper manner, and from motives which do not appear to be unreasonable.”
In the case of McDonald v. Butler, 10 Ga. App. 845, 849 (74 SE 573), this court held: "The mere absence of a headstone or monument would not excuse the desecration of the grave. When it was discovered, no matter how, that a human body had been interred on the lot, the grave should have been held sacred and the body allowed to remain undisturbed in its last resting place. Certainly, upon discovery of the grave, the most diligent and searching inquiry should have been made, to discover ownership of the lot and the identity of the person whose remains lay buried there.’’ (Emphasis supplied).
Here, the mistake remained undiscovered for more than 12 months, and then, when there was no particular hurry, the cemetery corporation made one telephone call, did not write a letter (which would have been received by Mrs. Hazel Blanchard had it been written and addressed to her) and then, within 30 days, proceeded to disinter and re-inter the body in the absence of the family of the deceased. "Good faith” or "bad faith” of the defendant here is not a matter that can be determined by a judge, but must be determined by a jury.
The question of good faith is ordinarily one of fact for a jury. McCamy v. Higdon, 50 Ga. 629, 631; Lee v. O’Quin, 103 Ga. 355, 364 (30 SE 356), and cit.; Chattahoochee Fertilizer Co. v. Quinn, 169 Ga. 801, 804 (151 SE 496); Street v. Collier, 118 Ga. 470, 480 (45 SE 294), and cit.; Latham v. Fowler, 192 Ga. 686, 692 (16 SE2d 591). A witness may testify that an act was performed in good faith, which has been held to amount to a statement of fact and not a mere conclusion. Hale v. Robertson & Co., 100 Ga. *209168 (27 SE 937); Acme Brewing Co. v. Central R. &c. Co., 115 Ga. 494, 502 (42 SE 8); Hasty v. Wilson, 223 Ga. 739, 750 (158 SE2d 915). But if there be facts from which a want of good faith can be inferred, this creates an issue as to a statement as to the mental state of the party that he acted "in good faith.” In many instances a presumption of good faith arises in the performance of an act. Latham v. Fowler, 192 Ga. 686, 692, supra; Gurr v. Gurr, 198 Ga. 493, 502 (32 SE2d 507); Hearn v. Leverette, 213 Ga. 286 (99 SE2d 147). But good faith is usually a jury question since it alone must test the reasonableness and truthfulness of the performance of the act by comparing it to all the facts and circumstances attending the transaction. Baxley v. Baxley, 117 Ga. 60, 63 (43 SE 436); Thompson v. Glover, 120 Ga. 440, 442 (47 SE 935).
If the Department of Health has not issued rules and regulations to implement the law, where did that leave the appellee iii this case? It would leave him without a permit and in violation of the law. The brief on behalf of the cemetery recites that the Department of Public Health has not issued rules and regulations implementing the statute as to disinterment of dead bodies. As previously stated, this is not proof of that fact, but it is interesting to note that nothing is stated as to how and when the cemetery gained this information. If it had filed a request with the registrar for a permit to disinter (as required by statute), which it did not do, and if the information as to lack of rules and regulations had been gained in that process, this at least might have reflected on the good faith or bad faith of said Cemetery Corporation. But it makes no such contention, and it must be presumed that it did not gain this information until after the disinterment of the body, in accordance with Holland v. Sanfax Corp., 106 Ga. App. 1, 5 (126 SE2d 442) which holds: "The party opposing the motion [for summary judgment] is to be given the benefit of all reasonable doubts in determining whether a genuine issue exists and the trial court must give that party the benefit of all favorable inferences that may be drawn from the evidence.”
Code Ann. § 88-1717, supra, was enacted to afford protection to those who properly need to disinter and re-inter dead bodies, and if appellee successfully knocks down that part of this law as to implementation, by showing no rules and regulations have been issued thereunder, he would be without any protection at all.
*210The public policy of this State is well established in regard to the deep respect for the burial places of deceased human beings. When a coroner finds it necessary to disinter a body, he cannot do so merely by virtue of his powers as coroner until he first secures the approval and permission of a judge of the superior court. See Code Ann. § 21-221; New Health Code §§ 88-2711, 88-2712, supra.
3. The defendant cemetery can not successfully rely on the contract in this case as justification for its conduct. First of all, the contract itself provides in Rule 3-A of Rules and Regulations (of which only one copy seems to have existed) "all interments, disinterments and removals are made subject to the orders and laws of the properly constituted authorities of the city, county and state.” (Emphasis supplied).
Rule 3-H of those Rules and Regulations purported to grant the right to "correct any errors that may be made by it either in making interments, disinterments, or removals, . . But the law writes into each and every contract that it must not violate the law; and any contract made against the statutes or public policy of this State are void. Code § § 20-504, 85-903, 102-106. Here, the contract itself provides that itmust comply with the law. What law must be complied with, then, as to disinterment? A permit must first be obtained, by applying to the registrar of the district. Code Ann. § 88-1717 (e), supra. If no permit, then no right to remove, regardless of contract. It is as simple as that. If a failure to issue rules and regulations stood in the way of issuing a permit, then under Code Ann. § 88-1717 (f), supra, it was the duty of the cemetery to apply to the Department forthwith to promulgate such rules and regulations. It did not have a permit — it did not apply for a permit — and it did not apply to the Department of Public Health to issue rules and regulations so a permit could be granted; nor did it know none was issued until after the suit in this case was brought against it.
4. Finally, why was it necessary to disinter and re-inter the body in the first place? Who made the mistake? While this case is not in equity, equity follows the law, and these equitable maxims apply. Code § 37-112. "When both parties are at fault, and equally so, equity will not interfere, but will leave them where it finds them. The rule is otherwise if the fault of one overbalances, decidedly, that of the other.” Code §37-113. "When one of two innocent persons must suffer by the act of a third person, he who put it in *211the power of the third person to inflict the injury shall bear the loss.” Nor has it definitely been shown that an error occurred in the original burial or that the deceased was not properly buried in the first instance in the lot pointed out to his widow she thought was conveyed to her.
5. It has long been recognized in this State that the owner of an easement of burial in a cemetery lot, or one who is rightfully in possession of it, may recover damages from a person or persons who wrongfully enters upon and disinters the remains of persons buried therein. It has further been held, in a suit for wrongfully disinterring a dead body, that if the injury has been wanton and malicious or the result of gross negligence or a reckless disregard of the rights of others, equivalent to an intentional violation of them, exemplary damages may be awarded, in estimating which the injury to the natural feelings of the plaintiff may be taken into consideration. Jacobus v. Congregation of the Children of Israel, 107 Ga. 518 (33 SE 853, 73 ASR 141); Wright v. Hollywood Cemetery Corp., 112 Ga. 884 (38 SE 94, 52 LRA 621); Roumillot v. Gardner, 113 Ga. 60 (38 SE 362, 53 LRA 729); Louisville & N. R. Co. v. Wilson, 123 Ga. 62, 67 (51 SE 24, 3 AC 128).
Thus it appears that the defendant admitted removal of the body from the grave, relying upon verbiage in a covenant. But the law is by implication written into all contracts, and by express terms is written into the contract in question, and requires the issuance of a permit before the body may be disinterred, which permit was not issued or even applied for.
Accordingly, I dissent from the ruling on motion for summary judgment, that the cemetery had full authority to desecrate the grave and remove the body and re-inter it elsewhere, under the above facts and circumstances.