¶1(dissenting).
¶2Our major point of departure from the majority takes place in their treatment of the second assignment of error and begins with what constitutes, and what is the nature of, the real cause of action involved in this case. However, before launching into a discussion of our differences in that regard, we must clarify another minor point of disagreement that involves whether we are dealing with “plaintiffs” or “plaintiff” on this appeal. The majority opinion maintains that the court ordered stricken the names of decedent’s three children as party plaintiffs, thereby leaving the widow, Delcie L. Hale, as the sole party plaintiff. It relies upon a statement contained in the motion to set aside summary judgment. We find no evidence in the record to support this statement. The record on appeal contains no minute entry of an order to strike the names of any of the plaintiffs. Without such a minute entry we refuse to regard Delcie L. Hale as the sole party plaintiff and will hereafter use the word “plaintiffs” in reference to her and decedent’s three children as party plaintiffs. We shall use the same designation as that used in the majority opinion when referring to the defendants, viz., the Mortuary and American Zinc.
¶3Although not so designated, the majority opinion begins its consideration of plaintiffs’ second assignment of error when it discusses the validity of the trial court’s granting of summary judgment in favor of defendants. Plaintiffs’ second assignment of error asserts that the trial court erred in granting defendants’ motions for summary judgment because issues of fact remained to be tried to the *71court and jury. § 21-1212, A.C.A.1939, (the statute providing for summary judgment at the time of the hearing) provides in pertinent part that the court shall render the summary judgment sought if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that no genuine issue as to any material fact remains, and that the moving party thereby becomes entitled to a judgment as a matter of law. To determine whether issues of fact remained on this record, and, if not, whether the defendants, the moving parties, thereby became entitled to a judgment as a matter of law, we must consider the nature of the cause of action under which the complaint states a claim.
¶4The majority opinion does not look upon the complaint as establishing a cause of action for wrongful embalming because the complaint does not indicate “wherein the wrongful act caused mental anguish” and the record does not contain statements of fact indicating “wrongful mutilation or indignities inflicted upon the body of decedent.” A cause of action for wrongful embalming does not require any such allegations or proof. The wrongfulness does not result from the manner in which the embalming was accomplished. The wrongfulness results from the lack of authority to embalm, though the manner in which the embalming was accomplished be completely proper. The mere act of embalming without authority interferes with the right of the next of kin to have the decedent’s body in the condition in which it was when death supervened. This is the rationale of the cause of action for wrongful embalming as the following quotations from leading cases and authorities reveal.
“ … The important fact is that the custodian of it [the corpse] has a legal right to its possession for the purposes of preservation and burial, and that any interference with that right by mutilating or otherwise disturbing the body is an actionable wrong. And we think it may be safely laid down as a general rule that an injury to any right recognized and protected by the common law will, if the direct and proximate consequence of an actionable wrong, be a subj ect for compensation.
“It is also elementary that while the law as a general rule only gives compensation for actual injury, yet whenever the breach of a contract or the invasion of a legal right is established, the law infers some damage, and, if no evidence is given of any particular amount of loss, it declares the right by awarding nominal damages. Every injury imports a dam*72age. Hence the complaint stated a cause of action for at least nominal damages.” Larson v. Chase, 47 Minn. 307, 50 N.W. 238, 239, 14 L.R.A. 85. (Emphasis added.)
“ … The right is to the possession of the corpse in the same condition it was in when death supervened.” Foley v. Phelps, 1 App.Div. 551, 37 N.Y.S. 471, 474.
“It is not a defense to say that the embalming was beneficial and necessary. Although embalming is generally recognized as a proper service. Konecny v. Hohenschuh, 188 Iowa 1075, 173 N.W. 901, no one but the person entitled to the dead body has the right to provide such service. He is entitled to the body in the condition it was in at death and to bury it in that condition without embalming if so advised. Here the evidence would sustain a finding not only of embalming without authority, but wrongful withholding of the body as well.
jjí ifc Jfc * # ‡
“That the plaintiffs later had the body embalmed is no defense. The damage and hurt resulting from the wrongful acts of defendants were complete before plaintiffs had the body embalmed by their undertaker. Just how a subsequent embalming the body by plaintiffs’ undertaker operates to satisfy or wipe out the cause of action for mental suffering and injured feelings resulting from defendants’ prior trespass on and the withholding of the body, which plaintiffs had, has not been made to appear. If plaintiffs had not had the body embalmed by their own undertaker, there could be no question as to their right to recover. By having the body embalmed they did not release or relinquish the cause of action which they then had. Plaintiffs were entitled to recover if the jury adopted their version of the facts unless the acts were done by the coroner or under his direction with lawful authority.” Sworski v. Simons, 208 Minn. 201, 293 N.W. 309, 311. (Emphasis added.)
“A person who wantonly mistreats the body of a dead person or who without privilege intentionally removes, withholds or operates upon the dead body is liable to the member of the family of such person who is entitled to the disposition of the body.” Restatement, Torts § 868 (1939). (Emphasis added.)
“ … The right to maintain an action for intentional interference with the body exists although there was no intent to do a tortious act, *73… Restatement, Torts, supra, comment a.
¶5The above quotations also make it clear that wrongful embalming is a wilful tort, actionable per se, for which recovery of nominal damages may be had without proof of actual damages.
¶6Viewed in this light, whether the Mortuary had authority to embalm the body becomes the only question pertinent to whether the Mortuary became entitled to a summary judgment on plaintiffs’ wrongful embalming claim. If the record shows that it had authority, then it was entitled to summary judgment on this claim. If the record shows that a genuine issue remained as to whether it had authority, or if the record shows that it did not have authority, then it was not entitled to summary judgment on the claim. The record shows that the Mortuary did not have authority. In sworn testimony at the coroner’s inquest, Gordon Brown admitted that he did not get anybody’s permission to embalm the body and that the Mortuary had embalmed the body even before the autopsy authorization (which he had asked Delcie Hale to sign) was returned to him. We agree with the majority that on the record no genuine issue as to a material fact remained, but we assert that the plaintiffs thereby became entitled to a judgment as a matter of law on this wrongful embalming claim if they had so moved, for as least nominal damages. To allow defendant Mortuary’s motion for summary judgment to defeat plaintiffs’ right to a judgment for nominal damages represents a travesty upon the well-established and deeply-rooted legal principle that a person has the right to vindicate any trespass upon his legal rights by an action in tort for at least nominal damages.
¶7We agree with the majority that under the rule of Stevens v. Anderson, 75 Ariz. 331, 256 P.2d 712, the plaintiffs’ failure to meet their obligation to make some showing that they would have proof of damages and proof of the conspiracy at trial time was fatal to their so-called conspiracy claim against the Mortuary and American Zinc. However, under no conception of the law (neither under the authority of Stevens v. Anderson, supra, nor otherwise) can it be said that this record entitled the Mortuary to a judgment as a matter of law on the wrongful embalming claim. Thus we would affirm the judgment as to all defendants on the so-called conspiracy claim, but would reverse the judgment as to the Mortuary on the wrongful embalming claim.