dissenting.
I respectfully dissent. I recognize the authorities contained in the majority opinion and accept them as the law of this State. I agree with the majority that there is no connection between the existence of poor conditions in the cemetery requiring disinterment of the body and the rule that the widow has the right to determine the place of burial and that, therefore, the trial court should not have included the instruction in its charge. I disagree with the final conclusion drawn in the majority opinion that the instruction was not so prejudicial as to require a reversal.
It is my opinion that the instruction contained in the charge of the court, as follows:
“The right to control the disposition of the body of a deceased person, unless other directions shall have been made therefor by the deceased, shall be vested in, and the duty of interment (and the liability for the reasonable cost of the interment) of such deceased person shall devolve upon, his or her surviving wife or husband.”
probably tipped the scales in favor of the surviving spouse’s wishes in the minds of the jury. See Levermann v. Cartall, 393 S.W.2d 931, 936 (Tex.Civ.App.—San Antonio 1965, writ ref’d n.r.e.).
I would reverse the case and remand for a new trial.