
    Mutual of Omaha Insurance Co. v. Garrigan.
    
      (No. 39398
    Decided August 19, 1971.)
    Court of Common Pleas of Erie County.
    
      Messrs. Ar$er & Hadden and Messrs. Buckingham, Bams eg, Didelius é TIolsapfel, for plaintiff.
    
      Messrs. Murray & Murray and Messrs. Williams & Williams, for defendant.
   McCrystal, J.

On January 14,1971, the decedent, William Garrigan, died while working on his automobile in his garage.- His body was discovered and removed to a local mortuary, where it was examined by the deputy coroner. The ruling of the coroner was that death was the result of carbon monoxide poisoning and he further concluded that the decedent died accidentally.

The decedent’s widow filed her claims as beneficiary of three “accidental death” insurance policies issued on the decedent by the plaintiff insurance company. Two of said policies were issued in 1966 and one in 1970. The plaintiff company refused to pay the claims and filed a complaint for declaratory judgment and later filed a motion for disinterment and autopsy pursuant to the provisions of Ohio Eules of Civil Procedure 26 and 34.

The company has presented several grounds supporting the request for a court order requiring the decedent’s widow to permit disinterment and autopsy. Each of these grounds, will be discussed separately.

Each of said policies and applications contains the standard wording required by E. C. 3923.04 (J) that the insurer reserves the right to make an autopsy in case of death where it is not forbidden by law. It is argued by the company that this mandatory provision of the policies in question includes the right to order disinterment for autopsy purposes. This court has been unable to find any authority in this state construing the autopsy provision to include disinterment and it is, therefore, the opinion of the court that the autopsy provisions found in the three policies in question must be construed strictly against the plaintiff company and do not authorize disinterment.

If the provisions of the three policies were to be construed to authorize an autopsy and disinterment, R. C. 2108.50, enacted in 1969, would appear to modify R. C. 3923.04 and invalidate the autopsy provision of the policy executed in 1970. R. C. 2108.50 requires that a person consenting to an autopsy must execute the consent and have it subscribed by two witnesses in the presence of the consenting person and each other. The exhibits offered in this case by the plaintiff do not indicate that the decedent gave his consent as required by R. C. 2108.50 to the 1970 policy. 16 O. Jurisprudence 2d, Dead Bodies, p. 303.

A further obstacle to the court ordering the defendant to secure the disinterment of the decedent’s body is presented by R. C. 517.23. This provision provides that the trustees of a cemetery association may disinter on the ‘ ‘ application of the next of kin of the deceased being of full age.” The question arises whether or not the defendant widow is the “next of kin” of the decedent. In State, ex rel. Weiss, v. Feldman, 28 Ohio Law Abs. 104, the Court of Appeals of Mahoning County ruled that the children of the decedent are the next of kin to the deceased and not the deceased’s husband or wife. In that case, as well as the instant case, the minor children would be the proper parties to apply for disinterment and not the widow; and, therefore, any order of this court ordering the widow to secure the disinterment would be an order to her to perform a futile task under the law. See also 16 O. Jurisprudence 2d, Dead Bodies, p. 299.

It is a further argument of the plaintiff that the request for an autopsy and disinterment order can be granted by this court by virtue of Rules of Civil Procedure 26 and 34. While liberal discovery rules are to be encouraged and are generally accepted, it is questionable that they should be used to override the long standing common law and statutory limitations on disinterment. Historically, disinterment has been ordered in only rare instances and then only after the insurance company has presented evidence to show it is “reasonably certain that an examination may reveal something that will show fraud or mistake. * * *” Whitman v. Kentucky Central Insurance Company, 22 S. W. 2d 594. It is the opinion of this court that the plaintiffs have failed to meet that burden of proof.

Since this court is of the opinion that the defendant is not the proper party to order her husband’s remains disinterred, this court also concludes that his remains cannot be considered “in the possession, custody or control of the party upon whom the request is served.” Civil Rule 34 (A) 2. Absent express statutory authorization, this court is not willing to extend the liberal discovery rules of Ohio into the grave.

The plaintiff’s motion for disinterment and autopsy is denied.

Motion denied. 
      
       Subsequent to the filing of this decision, R. C. 2108.B0 was amended effective December 3, 1971; as now written, the consent need not be subscribed to by two witnesses.
     