dissenting: I think the case should be sent back for retrial but not with the restrictions and limitations on plaintiff’s cause of action which I find in ratione decidendi of the main opinion.
I think the vault used in the burial undertaken by the defendants should be regarded as an accessory to the burial contracted for and undertaken by defendants and not as a separate sales transaction in which the contract, with its warranty, might be performed by delivery in its un-assembled state.
The defendants are not relieved from liability by reason of the fact that plaintiff did not show that the vault was not watertight when properly locked.
The contract was one of burial in which the defendants undertook to bury the body of plaintiff’s husband in this particular vault. Its potentialities as a watertight vault were useless and unavailable for the purpose for which the vault was intended until the top was locked to the base. The nature of the contract, and plaintiff’s evidence put this duty on the defendants and they failed to discharge it. By reason of that fact water and mud soaked the body and plaintiff is entitled to recovery for the breach of the contract, made specifically to prevent that occurrence, and the consequent and ensuing mental suffering, if the jury should so find.
The gravamen of the plaintiff’s action does not rest in a claim that the burial was not done in a workmanlike manner, — that is entirely too narrow; — -it lies in the breach of the specific contract to bury her husband’s body in a watertight vault, selected for the purpose; a vault watertight at the time of the burial, by proper assembly of its parts, by locking of the top to the base, if necessary to make it perform the intended function, — and it was. This has nothing to do with the way defendants “held themselves out as specially qualified to perform the duties of an undertaker” or the corollary statement in the opinion of the Court: “When defendants undertook to conduct the funeral of plaintiff’s deceased husband they impliedly covenanted to perform the services contemplated by the contract in a good and workmanlike manner.” That exists, of course, *17but it cannot be used to exclude the specific obligation of the contract, to wit: To bury the body in a specific way, in a watertight vault. Yet, of this, in discussing the nonsuit, the Court, in its opinion, observes: “As she offered no proof that the vault was not waterproof when properly locked to the base the ruling must be sustained.” Thus plaintiff’s main cause of action is dismissed by nonsuit, and another, upon which she did not declare, and in which there are plenty of hurdles, is handed to her for prosecution. I question, — not the power of the Court, of course — but the propriety of that action.