(dissenting in part).
I respectfully dissent in part because I disagree with the majority’s interpretation of Code section 144.34 and of the cases in which we have considered it. I also dissent from the majority’s holding that our review in disinterment cases should be de novo.
I. The majority believes the considerations mentioned in section 144.34 are mere “caveats” and are not intended to define the court’s authority in disinterment matters. As authority for downgrading the statutory considerations the majority looks to the common law, as it existed in Iowa before the statute and as it now exists elsewhere. But the prior existence in Iowa of a common law right to disinter sheds no light on legislative intent. There is nothing to indicate that our statute is a codification of our prior cases. Neither is there any reason to suppose our statute was adopted merely to codify the common law as it exists elsewhere.
From a reading of section 144.34 I believe the legislature did indeed establish three considerations which were intended to govern the court’s consideration of disinterment applications. The statute seems quite explicit: “Due consideration shall be given to [1] the public health, [2] the dead, and [3] the feelings of relatives.” These considerations are reasonable.and helpful, given the difficult task facing a court in ruling on disinterment applications.
On the one hand there are manifest public policy reasons for not giving any person veto power over the availability of evidence. Damaging evidence should not be available only by permission of the person whose case might be hurt by it. On the other hand the statute tells us also to weigh other factors. A litigant should not be forced to surrender an interred body for autopsy as a necessary price for pressing a claim in court.
The law has always believed the dead themselves have rights in the matter. This recognition was expressed for us by Justice Albert in King v. Frame, 204 Iowa 1074, 1079, 216 N.W. 630, 633 (1927):
The depositories of the dead have ever been respected by mankind whether civilized or uncivilized. Most of the commonwealths, including our own, have made it a felony to unlawfully disinter a dead body or disturb the monument or ornamentation where the body rests, and, . a due respect for the memory of the dead and for the feelings of the living friends and relatives requires that when a body is once interred it shall so remain unless extreme necessity demands its disinterment.
The statute gives us three criteria with which to weigh these conflicting considerations. I think we are bound to apply them. *37In that application it must be conceded there is no public health question in this case and no evidence of feelings by the decedent’s relatives.
The trial court denied the application on the basis of its finding that there was unreasonable delay in requesting disinterment. The plaintiff companies urge reversal on the basis of another finding of the trial court: “There is a reasonable likelihood that an autopsy now would either confirm or negative the plaintiffs’ claim as to the cause of death.” This finding was notwithstanding the trial court’s further observation that the passage of time had “decreased any probable benefits” to be gained from an autopsy.
On appeal each party takes the view that the finding it relies upon is controlling. Mrs. Heline believes that the passage of time has automatically ended the company’s right to disinterment. The companies argue, on the other hand, that the right to disinterment automatically follows from the trial court’s finding that an autopsy would confirm or negative Mrs. Heline’s claims concerning the cause of her husband’s death.
I think neither of the findings is controlling under section 144.34. The statute does not provide that a disinterment and autopsy will automatically result from finding they would confirm or negative the contentions. Neither does the section bar the ordering of disinterment by reason of the mere passage of time. Both are factors to be considered in weighing the three statutory criteria. See In re Disinterment of Jarvis, 244 Iowa 1025, 1028, 1031-32, 58 N.W.2d 24, 25-27 (1953); In re Disinterment of Tow, 243 Iowa 695, 700, 53 N.W.2d 283, 286 (1952). But neither Tow nor Jarvis should be read as superimposing independent criteria upon the statute. The considerations of how informative the autopsy might be and the passage of time are important only to the extent they bear on the three statutory criteria.
I think the trial court applied the wrong rule of law in determining that the passage of time, of itself, would bar the right to disinterment. The trial court should have based its determination on public health, respect for the dead, and the feelings of relatives. In that determination the trial court should have weighed, to whatever extent it found appropriate, the value of the information to be derived from the autopsy, the passage of time before disinterment was requested, and such other factors appearing in the record which shed light on the three statutory criteria.
II. In order to reach its decision the majority necessarily overrules Tow and establishes a new scope of review. To do so the majority again looks to the common law and not to our statute. The statute creates a proceeding for disinterment applications which is special and not equitable. I am convinced our holding in Tow is right and should not be overruled. Section 611.4, The Code 1979, cited by the majority, is not authority for the majority position. The section merely stands for the proposition that the 1860 Code Revision did not affect existing rules of equitable jurisdiction.
There seems to me to be a unique reason for adhering to the scope of review we prescribed in Tow. These proceedings concern matters which, as the majority aptly describes it, are “sensitive.” In matters so subjective as respect for the dead and the feelings of relatives I do not think we can match the sensitivity of a trial judge who actually sees the witnesses and observes them while they testify.
III. I should add that if compelled to apply a de novo scope of review to this record I would affirm the trial court. Unlike the trial court I find no reasonable likelihood that anything informative could be learned from an autopsy conducted at so late a time. The companies delayed more than a year before bringing their application to disinter. This delay detracts further from the appropriateness of disturbing the dead.
Because I believe the scope of review is not de novo I would reverse the trial court and remand in order for the trial court to *38decide the question anew on the record previously made.
McGIYERIN, J., joins this dissent.