
    Mary Hassard, Respondent, v. Timothy D. Lehane, Appellant.
    First Department,
    May 31, 1912.
    Tort — action against coroner’s physician for unlawfully dissecting and retaining organs from corpse — statute construed — defense.
    Where a parent brings an action against a coroner’s physician to recover damages for the wrongful and unlawful dissection of her son’s body and removal and detention of parts thereof, the fact that the coroner of New York city, pursuant to statute, actually directed the dissection of the body and the removal of parts thereof for microscopical examination is a complete defense, unless the defendant exceeded his directions.
    The fact that the coroner did not “ subpoena ” the physician but merely directed him to do the work is immaterial. A formal subpoena is not indispensable for the physician’s protection.
    Laugkhlin", J., dissented.
    Appeal by the defendant, Timothy D. Lehane, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of May, 1911, upon the verdict of a jury for $250, and also from an order entered in said clerk’s office on the 22d day of May, 1911, denying the defendant’s motion for a new trial made upon the minutes.
    
      Loyal Leale, for the appellant.
    
      August P. Wagener, for the respondent.
   Miller, J.:

The nature of this action was stated by Mr. Justice Laugi-ilin when writing for this court to reverse a judgment entered upon a dismissal of the complaint at the close of the plaintiff’s case. (143 App. Div. 424.)

On the trial resulting in the judgment appealed from the defendant put in his evidence, which tended to establish the following facts: On the morning of the 3d of April, 1907, the defendant received from the Coroner’s clerk a list of cases for investigation, including the case of Francis Hassard, who was reported to have met his death by falling from a vehicle; the defendant then went to the Harlem Hospital, where the remains .were, examined the hospital records and talked with the house surgeon, and was told that the deceased was found in a drug store by a policeman, whither he had been carried from the street by a citizen, who disappeared; that there were no marks of violence upon him; that he died about two hours after being received at the hospital; that the house surgeon was unable to account for the cause of death, and that there was a “question of suspicion” about it; the defendant then reported to the coroner over the telephone what he had learned, and was directed by that official to make a “complete” autopsy, which he thereupon performed and discovered that the immediate cause of death was a hemorrhage from a ruptured spleen, but was unable without a microscopical examination to determine whether the rupture was traumatic or due to disease; he again reported the facts discovered to the coroner, and was directed, by the latter to make a'microscopical examination of the spleen, and pursuant to that direction he removed the spleen from the body and sent it to a laboratory for examination.

The trial court charged the jury that the direction of the coro- ■ ner was not a subpoena, but that, if given, it might be considered'on the question of the defendant’s good faith in assessing damages, and that an autopsy, even if directed by the coroner, was not justified unless necessary to disclose the cause of death, and then only to the extent required for that purpose. The exceptions to those portions of the charge present the only questions for consideration on this appeal.

At the conclusion of his opinion on the former appeal, Mr. Justice Laughlin said: “Doubtless if the defendant made the autopsy by the direction of the coroner that would justify the dissection of the body (Statutes supra; People v. Fitzgerald, 105 N. Y. 146, 152; Crisfield, v. Perine, 15 Hun, 202; affd., 81 N. Y. 622), but it would not, in the absence of further directions from the coroner' or district attorney, or other evidence, warrant the removal or detention of any part of the body.” For clarity, I again quote the provisions of the statute, which are particularly pertinent: “The right to dissect the dead body of a human being exists in the following cases: * * *

“2. Whenever a coroner is authorized bylaw to hold an inquest upon a body, so far as such coroner authorizes dissection for the purposes of the inquest, and no further; * * *. ” (Penal Law, § 2213, derived from Penal Code, § 308, as amd. by Laws of 1889, chap. 500.)

“ When in the city of New York any person shall die from criminal violence, or by a casualty, or suddenly when in apparent health, or when unattended by a physician, or in prison, or in any suspicious or unusual manner, the coroner shall subpoena one of the coroner’s physicians, who shall view the body of such deceased person, externally, or make an autopsy thereon as may be required. It shall be the duty of the physician to whom such subpoena is so issued to make the inspection and autopsy required, and to give evidence in relation thereto at the coroner’s inquest. The testimony of such physician, and that of any other witnesses that the coroner may find necessary, shall constitute an inquest.” (Consol. Act [Laws of 1882, chap. 410], § 1773.)

The ordinary purpose of a subpoena is to compel the attendance of a witness and of course is not necessary if the witness voluntarily attends. If the word “ subpoena ” in said section 1773 is not to have its usual meaning, its use was not felicitous. The word “summon ” would have been more appropriate. At any rate, we think a formal subpoena was not indispensable to the protection of the coroner’s physician. The question was whether the coroner actually directed the dissection of the body and the microscopical examination of the spleen, and the uncontradicted evidence .is' that he did. It was for the coroner to determine whether the death occurred under such circumstances as to justify an inquest and an autopsy. It was the defendant’s duty to obey the direction of the coroner and to ascertain the cause of death. Obviously, he was concerned only with the medical side of the case and was not required to interpose his judgment against that of the coroner as to whether the deceased had died “ from criminal violence, or by a casualty, or suddenly when in apparent health, or when unattended by a physician, or in prison, or in any suspicious or unusual manner. ” His duty was to make an autopsy “ as may be required,” which we think is to be construed as though it read “ as may be required by the coroner.” If, therefore, the coroner directed the dissection of the body and the subsequent microscopical examination of the spleen, those directions, unless exceeded by the defendant, constituted a complete defense. (See Young v. College of Physicians & Surgeons of Baltimore City, 81 Md. 358; County of Northampton v. Inness, 26 Penn. St. 156.)

The learned trial court, therefore, erred- in the respects pointed out, and the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.

Ingraham, P. J., Glared and Scott, JJ., concurred; Laughlin, J., dissented.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  