
    Gath v. The Travelers’ Insurance Co.
    
      Insurance — Demand for autopsy to be made before burial, when — Demand to be made upon widow-beneficiary, when —Verbal request by company agent upon son insufficient —Bequest not communicated to widow-beneficiary.
    
    1. A clause in a policy of accident insurance gave the insurer the “right and opportunity to make an autopsy in case of death.” When the death is known to an agent of the insurer a reasonable time before burial, who has justifiable grounds for entertaining the belief that such death was caused by other than accidental means, the demand for an autopsy, to be seasonable, must be made before burial.
    2. Where a widow living at the home is named as the sole beneficiary of the insured, under the opportunity clause of the policy such demand should be made upon her. Verbal requests for opportunity to make an autopsy, made by an agent upon the son before burial, are not sufficient, where the son unequivocally notifies the agent that he will not, and in fact does not, communicate such requests to the widow beneficiary.
    (No. 18724
    Decided October 20, 1925.)
    Error to the Court of Appeals of Butler county.
    On Rehearing.
    Suit was instituted in the court of common pleas by Maggie L. Gath, seeking to recover on a policy of accident insurance issued to her husiband, Charles W. Gath, by the Travelers ’ Insurance Company. Maggie L. Gath was the widow and sole beneficiary under a policy wherein her husband had been insured for the sum of $5,000, and aecumulations, payable to his widow in case of death, provided death resulted directly or indirectly, but independently of all other causes, through external, violent, and accidental means. The policy contained the following’ provision:
    
      [ 1.] Accident Insurance, 1 C. J., Sec. 207; [2.] Id.
    
    
      “(4) The company shall have the right and opportunity to examine the person of the insured when and so often as it requires in case of injury, and also the right and opportunity to make an autopsy in case of death.”
    The insured died on April 25', 1923, at 9 -.30 a. m. Action on the policy was begun on August 6, 1923. On August 28, 1923, the insurance company by its counsel applied to the court for an autopsy upon the body of Charles W. Grath, alleging that the exact cause of death could only be ascertained by means of an autopsy and post mortem examination. On November 21, 1923, the plaintiff resisting, the cause was heard on the insurance company’s application, both parties submitting evidence thereon to the court. After the hearing, the trial court ordered an autopsy upon the body of Charles W. Grath, ordered an exhumation for that purpose, and directed that, if within five days the widow failed to file her written consent thereto, the action should be dismissed at plaintiff’s costs. On November 26,1923, the widow filed her formal declaration, in which she alleged that:
    “She did not object to and would not have objected to' an autopsy had the same been demanded of her before the burial of said decedent, but, the company waiving its right to such autopsy before burial, she now declines to have the body taken up from the grave and an autopsy held thereon.”
    
      The trial court, thereupon dismissed the plaintiff’s action because of her refusal to comply with the order of the court. The Court of Appeals affirmed the judgment of dismissal, whereupon error was prosecuted to this court.
    The pertinent facts developed at the hearing are, in substance, as follows: Gath and his wife lived at Hamilton, Ohio. Gath’s death occurred on Wednesday, April '25, 1923, at 9:30 a. m. He was buried on April 27th, the funeral services beginning about 1:30 p. m. of that day. An only son, Andrew Gath, who lived in Michigan, was at his father’s home for a period of about three weeks preceding his death, and looked after the funeral arrangements thereafter. It is conceded that the widow, plaintiff in error here, did not know that a demand was made for an autopsy upon the body of her husband until April 30th, three days after his burial. No demand for an autopsy was made before burial upon the widow by either of the agents of the insurance company. Whatever demand was made, was upon the son. One Dr. Meaner was the local medical examiner of the insurance company at Hamilton. He testified that on the morning of April 26th, at 8:30, he called the son, Andrew, by telephone and requested an autopsy of the body; this the son refused, and stated that he assumed all responsibility therefor. He later testified that it was upon the afternoon of that day that he made this request. The refusal of the son was reported by telephone to the claim adjuster of the company at Dayton on the afternoon of the 26th. This agent of the company, between 4:30 and 5 o’clock of that day, called the local medical examiner at Hamilton by phone and asked him “to make the demand upon Maggie L. Gath, the beneficiary.” A written demand for an autopsy was also prepared at Dayton by the claim adjusting department on April 26th and forwarded to Dr. Flenner, who received the same before burial. In the meantime, on the morning of the 27th, the local medical examiner ag’ain verbally requested an autopsy from the son, but at no time was any effort made before burial to demand an autopsy from the widow, the sole beneficiary under the policy. In the meantime, and before burial, the agents of the insurance company knew of the death of the insured and had grave doubts whether the same was caused by accidental means.
    
      Mr. W. C. Shepherd,- Messrs. Andrews, Andreios & Rogers, and Mr. Frank H. Ward, for plaintiff in error.
    
      Mr. Harry S. Wonnell; Messrs. McMahon, Corwin, Landis & Markham, and Messrs. S\awyer <& Paxson, for defendant in error.
   Jones, J.

A clause in the insurance policy under consideration gave the company the right and opportunity to make an autopsy in case of death. The facts developed on the hearing disclosed that the agents of the insurance company, not only had knowledge of the death of the insured, but entertained a belief that death was caused by other than accidental means. This they had at least 30 hours before burial. The widow was the sole beneficiary under the policy, and continued to reside at the family home during the time intervening between the death and bnrial. A son who lived in Michigan was at the time at his mother’s home, looking after the funeral arrangements. At no time between the death and burial did the widow have any notice of a demand for an autopsy upon the body of her husband. The notice she received of that demand was on Monday, three days after the burial. On the hearing in the following November, while resisting the application for disinterment, she alleged that she did not object to, and would not have objected to, an autopsy had the same been demanded of her before burial. A verbal demand was twice made upon the son; the first on the day before the burial, and the second shortly before the funeral services began. In each of the conversations had between the son and the insurance company’s agents the son unequivocally told the agent that he would not notify his mother of the demand for an autopsy, but would assume all responsibility therefor.

Two questions are presented by this record: First, Was the demand for an autopsy seasonably made by the agent of the insurance company? and, second, Was it made upon the proper person?

The insured, having accepted the policy giving the company the right and opportunity to make an autopsy in case of death, the majority of this court do not deny the power of a court to grant that right in a proper case, nor deny the power of the court to dismiss an action if the beneficiary refuses to comply with such a contractual clause in a policy of insurance, if the demand be seasonably made, or a reasonable excuse for delay be proven, and there are justifiable reasons for belief that death did not result “through external, violent, and accidental means.” Whether a court should authorize the disinterment of a body for purposes of an autopsy naturally depends upon the peculiar circumstances arising in each case. In the present case there was no fraud or concealment on the part of the beneficiary.

Autopsy clauses, such as we have here, are construed strictly by the courts in favor of the insured, and require a demand for an autopsy to be made before burial, especially when the death of the insured is known to the agents of the company, and it has reasonable grounds to believe that it was not caused by accidental means. The reported cases upon the subject show that the courts very reluctantly “permit any interference with human remains when once interred.” Danahy v. Kellogg, 70 Misc. Rep., 25, 126 N. Y. S., 444, 448. It can readily be seen why this is so. Due regard for the feelings of the relatives, the protection of the sanctity of the grave, the exhumation of a body once interred, these and other considerations furnish cogent reasons why an autopsy could be more appropriately made and the assent of the relatives thereto more readily secured before rather than after burial. For these reasons the courts have generally maintained the principle that if the death and attending circumstances are known to the agents of the insurance company, as they were in this case, the demand for an autopsy, to be timely, must be made before burial. Wehle et al., Ex’rs., v. United States Mutual Accident Ass’n, 153 N. Y., 116, 47 N. E., 35, 60 Am. St. Rep., 598; Root, Admr., v. London Guarantee & Accident Co., Ltd., 92 App. Div., 578, 86 N. Y. S., 1055; United States Fidelity & Guaranty Co. v. Hood, 124 Miss., 548, 87 So., 115, 15 A. L. R., 605; Johnson v. Bankers’ Mutual Casualty Ins. Co., 129 Minn., 18, 151 N. W., 413, L. R. A., 1915D, 1199, Ann. Cas., 1916A, 154. The foregoing are but a few of the eases sustaining the principle here announced, with which this court is substantially in accord.

"We therefore approach the threshold of the second proposition: "Was the demand for an autopsy made upon the proper person? The testimony discloses that, when the insurance company made its two oral requests upon the son, the latter definitely advised the agent of the insurance company that he would not communicate the demand to his mother. The mother was at the family home, and during the time intervening between the death and burial, was receiving visitors and friends of the family. Indisputably it was the widow and not the son who had the right to refuse or grant the right to an autopsy upon the body of her husband. The widow was the sole beneficiary, and was the only person who could be prejudiced by a refusal. She was the one to whom the demand should be communicated. This was recognized by the claim adjuster at Dayton, who, when he was advised that the son refused to permit an autopsy, ordered the local agent at Hamilton “to make the demand upon Maggie L. Gath, the beneficiary.” Had the son communicated to his mother the fact that a demand had been made, the case would assume another aspect, but when the son twice assured the agent that he would not, and in fact did not, communicate the demand to his mother, it became the duty of the insurance company under the opportunity clause of the policy to secure other means whereby the widow and beneficiary should be informed of the demand. In view of the fact that the son refused to make this communication to his mother, and so apprised the agent, there was no sufficient demand for an autopsy made upon the plaintiff below before burial. She had no notice of the demand until three days after burial, and no reasonable excuse for the delay was shown.

It is the judgment of this court, therefore, that the demand for an autopsy was not seasonable, since it was not communicated to the widow and beneficiary before burial. The order of the trial court, made seven months after burial, requiring the widow to assent to the exhumation of her husband’s body, was, under the circumstances developed by the testimony, erroneous.

The judgment of the 'Court of Appeals, affirming the dismissal of the action by the trial court, will be reversed for the reasons stated, and the cause remanded to the trial court, with directions to reinstate the action, and for further proceedings according to law.

Judgment reversed.

Matthias, Day, Allen, Kinkade and Robinson, JJ., concur.

Marshall, C. J., dissents.  