On Motion for Rehearing.
The appellants have filed a motion for rehearing in which it is insisted that we erred in • the original disposition of this case, and vigorously assert that we erred in holding the evidence sufficient to sustain the finding of the jury that Flores, the superintendent of the cemetery, acted in gross indifference to the rights of the appellee.
Our attention has been directed to a statement in our original opinion which we desire to correct. The statement that “a standard certificate of death,” and the paragraph ending with “the cause of death,” should read as follows: A burial permit was furnished the superintendent of the cemetery, which, according to the books of the cemetery, contained the following information, to-wit: “It is interment No. 16796; Bernardo L. Galven; place of birth, Mexico; late residence, 124 North Santa Rosa Avenue; age 51 years, sex male; social state, married; date of death, Sept. 6, 1935; date of burial, Sept. 8, 1935; place of interment, Sect. 3, Blk A, Line 8, and Grave 33; Lot, none; Lot Book page, none; grave fee, $7.00; name of undertaker, Morales ; parish from which he was buried, San Fernando Cathedral.” The standard certificate of death mentioned in the original opinion was a public record in the health department of the City.
We also erred in the original opinion in the statement, that at the time Mrs. Acosta and Mrs. San Miguel went to see Flores in regard to the removal of the body, “Flores did not consult his records to ascertain the facts in reference to the body or the rights of appellee.” This statement is incorrect, Flores testified that when said ladies came to him Mrs. San Miguel told him she was the daughter of Galvan, and that he went to his records and found out it was Bernardo L. Galvan.
We now direct our attention to the claim that the evidence is insufficient to sustain the finding of the jury that Flores acted in gross indifference to the rights of the appellee. The rule applicable is often stated as follows: “ ‘If, discarding all adverse evidence and giving credit to all evidence favorable to the plaintiff and indulging every legitimate conclusion favorable to the plaintiff which might have been drawn from the facts proved, a jury might have found in favor of plaintiff,’ the findings of the jury should be sustained.” Quanah, A. & P. Ry. Co. v. Eblen, Tex.Civ.App., 87 S.W.2d 540, 542, writ refused. The evidence shows without dispute that Bernardo L. Galvan was married at the time of his demise. The records kept under the direction of Flores showed such facts, which, according to his own testimony, he consulted when Mrs. Acosta and Mrs. San Miguel came to him with reference to the removal of the body. The record also showed the late residence of the deceased to be 124 North Santa Rosa. Flores denied knowing the deceased and gave the following testimony :
“Q. You did not know him at all? A. I saw him by sight like I know you, yes.
“Q. You didn’t know that he had a shop here on North Santa Rosa Avenue? A. Yes, sir, I did — I did see him there.
“Q. How long did you know Mr. Gal-van, just in that way please? A. Well, I had known him for a long time, I believe, he was always standing by the door and so when I passed there I saw him all the time.”
Flores, by his own testimony, recognized the right of removal belonged to the next of kin. Flores testified with reference to knowing Mrs. Acosta:
“Q. You had known Mrs. Acosta a long time hadn’t you? A. Yes,, I knew Mrs. Acosta.
“Q. How long had you known her before that time? A. Well, since we discussed about moving of this body and met both of them.
“Q. Didn’t you know her before because of some dressmaking done for your wife? A. I believe it was after that about the dressmaking. I don’t remember when it was done, whether before or afterwards.”
*309The record kept by Flores indicated the name of the funeral director, who on behalf of appellee had made the arrangement for the burial and paid the fee on her behalf. A part of said fee was allocated to pay for the upkeep of the grave.
Under the foregoing facts it seems to us that Flores could not in good faith allow the removal of the body of Galvan without the consent of the survivor. It is argued that Flores did not know the ap-pellee; and hence it cannot be said that he acted in a wilful disregard of her rights. His records indicated the existence of a survivor. The survivor lived at the late residence of the deceased Galvan. The standard death certificate contained the information, and such certificate is a public record open to Flores under the law. Any sort of investigation upon his part would have disclosed all the true facts, either through the death certificate, undertaker, or by making inquiry at the late residence of the deceased. Then, too, the jury had the right to reconcile the conflicts in the testimony of Flores with reference to the extent of his acquaintance with Mr. Acosta, and conclude therefrom that he had known Mrs. Acosta for a long time. The jury undoubtedly believed that Mrs. Acosta had been employed by the wife of Flores before she and Mrs. San Miguel consulted Flores with reference to the removal of the body, and because of that relationship Flores acted as a partisan of Mrs. Acosta in advising them in regard to the removal, and in allowing the removal, of the body without the consent of the surviving wife. The jury undoubtedly did not believe the testimony of Flores to the effect that at the time Mrs. Acosta and Mrs. San Miguel came to •see him, they were unknown to him. The jury had the right to infer from the evidence that Flores ignored the legal right of the surviving spouse, because of his partisan feeling on behalf of Mrs. Acosta, or in order to be able to sell a lot to her. The jury was not compelled to accept his assertions of good faith, in view of other admis.sions heretofore mentioned.
If Flores, in advising Mrs. Acosta and Mrs. San Miguel and in allowing the removal of the body without the consent of the survivor, was prompted through a desire to accommodate Mrs. Acosta, or to effectuate the sale of a lot in the cemeteryj then such conduct must be construed to be in gross indifference to the rights of the .survivor. These inferences were deducible from the evidence. The jury having found that Flores in distinterring the body acted wilfully and with reckless and gross indifference to the right of appellee, it is our duty, under the record presented, to uphold such finding.
It is argued that it will'not do to hold that a cemetery upon being presented with a disinterment permit, before taking any action, must make an investigation to ascertain the rights of the parties with reference to the body, and act at its peril. We think the facts of this case illustrate the necessity of requiring the cemetery to follow the law, that is, before allowing a removal to obtain the consent of the next of kin, in this case the surviving wife. Had Flores demanded written consent of the surviving wife in the present case, no liability could attach in favor of any one against the cemetery.
The motion is overruled.