Strickland v. Tant , 41 N.C. App. 534 ( 1979 )

HEDRICK, Judge.

Respondent Odell Tant’s single assignment of error is to the trial court’s entry of summary judgment in favor of the petitioners. Respondent Tant first contends that G.S. § 65-13 “prohibits the disinterment, removal and reinterment of graves except as set forth in the statute.” While we recognize that the disinterment of a body is generally not favored in law, we nevertheless do not believe that the statute provides the exclusive grounds for the disinterment of a body. The statute speaks to the situation where a body had been properly interred, but for some reason justified by the public interest [e.g., G.S. § 6543(a)(1) by a governmental agency when “removal is reasonably necessary to perform its governmental functions”] or by some compelling private interests [e.g., G.S. § 65-13(a)(2) by a church authority to erect a new church or expand existing church facilities] it is necessary to effect a disinterment, removal, and reinterment. G.S. § 65-13 nowhere provides for the situation where there has been an improper interment, and thus we think the statute is inapplicable to the case at bar. At oral argument, both petitioners and respondent Tant conceded that G.S. § 65-13 has no application in this case.

Respondent Tant next contends that summary judgment for the petitioners was inappropriate because they have failed to show “compelling reasons” for the disinterment of his late wife’s remains. In order for a party to be entitled to summary judgment, two things must be shown: (1) that there exists no genuine issue as to any material fact, and (2) that any party is entitled to judgment as a matter of law. G.S. § 1A-1, Rule 56(c); Kidd v. Early, 289 N.C. 343, 222 S.E. 2d 392 (1976). In its judgment, the trial court entered separate findings of fact and conclusions of law in accordance with Rule 52. Under Rule 56, however, the trial judge is not required to make findings of fact, but it is not error to do so where the findings of fact are merely a summary of the material facts not at issue. Wachovia Bank & Trust Co. v. Peace Broadcasting Corp., 32 N.C. App. 655, 233 S.E. 2d 687 (1977). The facts in the present case are uncontroverted; therefore, the sole question on this appeal is whether the petitioners are entitled to judgment against the respondent Tant as a matter of law.

In Mills v. Carolina Cemetery Park Corp., 242 N.C. 20, 86 S.E. 2d 893 (1955), our Supreme Court, citing 25A C.J.S. Dead Bodies, § 4, recognized the general legal principle that the court can order a body disinterred and removed upon a showing of compelling reasons. In the present case, the respondent’s wife has been buried in the plot owned by the petitioners, which is adjacent to an unoccupied lot owned by respondent Tant. The effect of Tant’s refusal to have his late wife’s remains removed to the lot owned by him is to completely deprive the petitioners of the use of their land for the purposes for which it was selected and purchased. In the present case, the value of such a plot to the petitioners obviously transcends any monetary valuation that might be attributed to it. Indeed, the lots possess a unique value to the petitioners, and the petitioners’ injury can only be compensated by the right to the unencumbered use of their burial lots.

We hold that the uncontroverted facts established by the record support the conclusion that the petitioners are entitled to the unencumbered possession of the burial lots described in their petition, and that compelling reasons exist for requiring the removal of the remains of Alice Tant from the petitioners’ lot. There is, however, no evidence in this record to support the trial court’s Order that the respondent Odell C. Tant “cause the remains of his next of kin, Alice F. Tant ... to be removed from the Petitioners’ Lot 74A and transferred to a suitable burial place within ten (10) days . . .”

The trial judge apparently based his Order on the fact that the respondent Tant was the “next of kin” of the woman whose body occupies the burial lot in question. While the next of kin of a party deceased has certain obligations and duties with respect to the burial of the body, and likewise has certain rights with respect to preserving the sanctity of the grave and the protection of the body from mutilation and degradation, see 22 Am. Jur. 2d, Dead Bodies § 4 (1965), we find nothing in the law that imposes on the next of kin the duty of removing a dead body from its burial place absent some showing that such next of kin was responsible in some way for the body’s interment in a lot owned by another. In the present case, it is clear that a mistake was made when Alice Tant’s body was buried in the petitioners’ lot. It is equally clear from this record that the respondent Tant did not participate in such mistake. It does not appear from this record who is responsible for the mistake.

It is undisputed that the State has a legitimate interest in the disposition of dead bodies and the preservation of the sanctity of the grave. See G.S. § 14-150. The State licenses funeral directors, G.S. § 90-210.25, and extensively regulates cemeteries such as the one operated by the respondent in the present case. See G.S. § 65-46 to -72. While the funeral director conducting the funeral of Alice Tant was not made a party to this proceeding, the cemetery where she is buried was made a party, filed an answer, and even filed a brief in this Court. Although the cemetery was a respondent, and the petitioners prayed for relief against the cemetery and not against the respondent Odell Tant, the judgment entered was against the respondent Tant and made no disposition of petitioners’ claim against the cemetery.

For the reasons stated, the Judgment ordering the respondent Odell Tant to remove his wife’s body from petitioners’ burial lot and reinter same is vacated, and the cause is remanded to the superior court for further proceedings with respect to disposition of the claim against the respondent cemetery.

Vacated and remanded.

Chief Judge MORRIS and Judge WEBB concur.