
    Alexander L. Ewing, Respondent, v. The Commercial Travelers’ Mutual Accident Association of America, Appellant.
    
      Accident insurance — what is an “immediate notice” of the accident—the examination of the person of a deceased member must be made before his burial.
    
    A provision in a policy of accident life insurance, that the company shall have ‘"immediate notice * * * with full particulars of the accident or injury," is complied with, where it appears that the deceased died on June 23,1897, and that neither the beneficiary nor any one else knew the cause of death until after the report of a chemist, who had examined the stomach and organs of the deceased, was received on the eighth or ninth of July, on which latter date notice of the death was given to the company.
    A clause of the policy, providing that “No claim shall be payable under this certificate, unless any medical adviser of the association shall be allowed to examine the person of the member, in respect to any alleged injury or cause of death then and so often as may be necessary or reasonably required on behalf of the association,” secures to the company the right to “examine the person of the member ” in respect to the “ cause of death,” only for a reasonable time after death and until the body is buried or final disposition is made, of it.
    Parker, P. J., dissented.
    Appeal by the defendant, The Commercial Travelers’ Mutual Accident Association of America, from a judgment of the Supreme Court in favor of the plaintiff, entered.in. the office of the clerk of the county of Chemung on the 10th day of April, 1899, upon the verdict.of a jury, and also from an order entered in said clerk’s office on' the 26th day of June, 1900, denying the defendant’s motion for a new trial made on a case and exceptions.
    In 1890, the. defendant issued to Alexander L. Ewing, Jr., a policy of insurance and thereby made him a member of its association. The terms of the policy, in brief, made the father of this member, the plaintiff in this action, the beneficiary in case of the death of the assured, and in case of partial disability the assured was entitled to the benefits. While the policy was in force, and on June 23, 1897, the assured died. It is claimed that his death was caused by an overdose of morphine accidentally taken.
    No notice of death was given to defendant until July 9, 1897. This was after an autopsy had been made and the body interred. The policy provides as a condition precedent, to a recovery that immediate notice shall be given in writing of the accident or injury with full particulars. The policy also provides further that the medical adviser of the defendant “ shall be allowed to examine the person of the member, in respect to any alleged injury or cause of death, then and so often as may be necessary or reasonably required-on behalf of the association.”
    
      M. W. Van Aulcen and W. A. Matteson, for the appellant.
    
      J. P. Eustace, for the respondent.
   Kellogg, J.:

There seems to have been evidence sufficient at the trial of this action to justify the jury in finding that the deceased (Alexander L. Ewing, Jr.) died from, the effects of morphine taken accidentally and without design, and not taken “ while the member was, or in consequence of his having been, under the influence of intoxicating drinks.” Aside from errors of law alleged to have been committed at the trial, the defendant urges that the proof shows that defendant did not have the notice stipulated for in the policy, immediate notice, * * * with full particulars .of the accidentior injury.” The evidence on this subject seems tobe undisputed. The deceased died June 23, 1897, at Scranton, Penn. He was buried at his home in Elmira June 26, 1897. The beneficiary in case of death, the plaintiff here, was at the time, of death traveling, but was at the burial. He testifies that at this time he did not know the cause of death, and no one knew until after the report of the chemist who had in charge the stomach and other organs of the deceased for chemical analysis; that he received the report from the chemist on the eighth or ninth of July following, and on July ninth notified defendant. What he says would warrant the conclusion that plaintiff had no knowledge before the chemist’s report that he had any claim which he could make against defendant under the policy. The term “ immediate ” should be interpreted reasonably. (Trippe v. P. F. Society, 140 N. Y. 23.) The context in which the word is here found implies that before notice is given the “ full particulars ” must be first discovered by the person required to give the notice. Assuming that plaintiff testified to the truth, I think it might properly be held as a matter of law that the notice given fully complied with the condition of the policy. As a question of fact the jury, it seems, reached the right conclusion.

The defendant also urges that it was not permitted to examine the body of deceased. The first application defendant made was on July 18, 1897, nearly a month after the burial. It is in proof that immediately after death an autopsy had been made in the public interest under the direction of the coroner at Scranton, Penn., and the stomach and other organs had been taken away, and that these were not replaced with the body. The application made J uly eighteenth was to this plaintiff, who declined to give any consent. Subsequently application was made to the widow of the deceased, who had the lawful custody of the buried body, and she positively refused, stating as reasons that one public examination had been made;, and that the organs affected were not there. The court submitted the question to the jury as to th§ reasonableness of this request for an examination by defendant.

The clause in the policy under which this right was claimed reads as follows: “ No claim shall be payable under this certificate unless any medical adviser of the association shall be allowed to examine the person of the member, in respect to any alleged injury or cause of death, then and so often as. may be neccessary or reasonably required on behalf of the association.”

■ If. this should be interpreted as conferring Upon the insurance company an absolute and unconditional right to exhume and examine at least once the body of any member on pain of forfeiture .of the right to recover, it. would be giving to it the full force which defendant claims for it. If a body should by the living relatives be cremated instead of buried in the ground, no recovery could be. had Under- the policy. But does this clause necessarily mean so much ? The contract is with- a member of the association; it is in part for the.benefit of the assured; in case of partial disability from accidental causes, the assured is to receive the benefits, and he agrees that the medical adviser shall be allowed to examine his person, “ tire "person of the member.” There is no express stipulation here that the defendant may dissect the body of the member. No stipulation for a forfeiture should any relative having lawful custody of the body of a deceased member refuse to permit it to be dug up and dissected. I think the policyholder interpreting this clause to bind the member so long as the member has control of his own person would place upon it a rational construction. If this right to “ examine the person of the member ” in respect to any cause of death ” is extended for a reasonable time after death and so long as the-body is unburied or -not finally disposed of^ I think the utmost limit of' the privilege stipulated for would be reached. Thereafter other interests than the wishes of the beneficiary or the expressed wishes of the contracting member while living might reasonably be expected to prevail. In any case, I think a party who alleges a contract right to invade the tomb, or the graves of the buried dead, should be sure of the language of his written agreement; it should at least be unmistakably clear, tlm purpose should be apparent, and the terms so plain that inference or conjecture need not be resorted to to discover the true intent of the contracting parties. If the policy in -question in plain terms stated to. an applicant for membership that by accepting membership the applicant bartered to the ins.urer the right at any time to dig up and examine or dissect his dead body, it is quite conceivable that there would be few applicants for membership.

The exceptions taken Dy defendant to the admission of testimony do not call for a reversal. I think the testimony was in every instance admissible. The exceptions to the' charge to the jury as corrected by the presiding justice disclose no reversible error.

The judgment should be affirmed, with costs.

All concurred, except Parker, P. J., dissenting; Merwin and. Smith, JJ., concurred in result.

Judgment affirmed, with costs.  