Travelers Ins. Co. v. Welch

• Decision Date: 26 March 1936
• Docket Number: No. 7833.,7833.
• Citation: 82 F.2d 799
• Parties: TRAVELERS INS. CO. v. WELCH.
• Court: U.S. Court of Appeals — Fifth Circuit

82 F.2d 799 (1936)

TRAVELERS INS. CO. v. WELCH.

No. 7833.

Circuit Court of Appeals, Fifth Circuit.

March 26, 1936.

Howard B. Warren and Clare C. Clark, both of Shreveport, La., for appellant.

Arthur O'Quin and Leon O'Quin, both of Shreveport, La., for appellee.

Before FOSTER, SIBLEY, and HUTCHESON, Circuit Judges.

SIBLEY, Circuit Judge.

This appeal is from a judgment upon a policy of accident insurance, and raises questions whether a finding of death by suicide rather than accident is demanded, and whether refusal of the beneficiary to accede to a demand for an autopsy defeats recovery, and whether instructions to the jury on these subjects were correct. The evidence all goes to show that the insured was in good health, fond of his wife and young daughter, had employment and was in hopes of a profitable business, his circumstances being no more depressed than was common in the summer of 1933. On Saturday, August 5, 1933, he was a guest at the fishing camp of a friend, and had been in good spirits all afternoon. About dusk he and another friend went from the house fifty yards to the dock to look after some fish hooks set there. Insured had his pistol, and shot at a turtle, and allowed the little son of his host to shoot also. They were called in to supper, insured's companions going straight up the hill while insured walked around by the usual path. Just after the others reached the house another pistol shot was heard, but no notice taken of it. Soon the little boy called the attention of the others to the insured lying in the path ten steps from the house and in plain view. They went to him, and found him stretched out on his stomach or left side with head towards the house, the pistol in his left hand partly beneath the left hip, his thumb through the trigger guard. Four used cartridges were in the pistol, and no others. He was shot through the head, the ball having entered just above and to the rear of the left ear and passed out below the right ear. It had been raining, and the path was wet, slippery, and steep, and just below insured's feet was a mark two feet long looking as if his foot had slipped. The pistol could be fired without cocking it by a blow on the hammer or by pulling the trigger. There were no powder burns about the wound, showing, as the testimony indicated, that the pistol was over five or six inches away. Insured was right handed.

It is possible, as argued for the appellant, that insured voluntarily held the pistol in his left hand, pressed the barrel to his head, and fired it with his thumb on the trigger. It is also possible that he was carrying the pistol in his left hand as he rapidly climbed up the wet path, that he slipped and threw his left hand forward to catch himself and got his thumb in the trigger guard and involuntarily fired the pistol with his head down near his hand, the body afterward lurching further forward and falling upon the left hand. Almost anything can happen in a fall. The circumstances both of his character and life and his immediate surroundings do not suggest but strongly negative any purpose to take his own life. The case was easily one for the jury. We have examined the charges of the court on the general burden of proof and on the use of the so-called presumption against suicide, and do not find them seriously at variance with our holdings in Travelers' Insurance Co. v. Wilkes, 76 F.(2d) 701, and Fidelity & Casualty Co. v. Driver, 79 F.(2d) 713.

Touching the autopsy, the policy provides under the heading "Standard Provisions" as follows:

"8. The Company shall have the right and opportunity to examine the person of the insured when and so often as it may reasonably require during the pendency of claim hereunder, and also the right and opportunity to make an autopsy in case of death where it is not forbidden by law."

There is no express provision making this a condition of the insurance or declaring that the insurance is to be forfeited if an autopsy is denied. We find no Louisiana statute on the subject of autopsy except section 7615, Dart's La.Gen.Stats., which authorizes a coroner to hold one. Dart's La.Code Cr.Proc. art. 1295, declares it a crime to willfully desecrate a grave, tomb, or monument to the dead. In Choppin v. Dauphin, 48 La.Ann. 1217, 20 So. 681, 33 L.R.A. 133, 55 Am.St.Rep. 313, the Supreme Court held that bodies permanently entombed by the tomb owner could not be removed by his heirs, and referred to common-law authorities. The insured here died August 5th. The insurer's local agent who had collected the last premium on the policy heard of the death August 6th, and went to insured's home then. S. L. Brown, an adjuster of the insurer, was told of it and of the insurance the night of August 6th, and was present at the coroner's inquest over the body held next day at 2 p. m. He made no request then for an autopsy; but says he had no authority from the home office to ask one. The coroner was a physician, and experienced in gunshot wounds. He testified fully at the trial; among other things, that he did not consider having an autopsy, since he saw by his external examination all that could be discovered by an autopsy. The body was buried that afternoon after the inquest. The local agent furnished the blank proofs of loss which were sworn to August 14th, and apparently filed August 24th. On September 9th, Brown, in the name of the insurer, wrote to plaintiff, insured's widow, referring to the policy and her claim under it, and saying that under provision 8 of the policy the right and opportunity of making an autopsy was requested and demanded at such time within ten days as she might name, and designating the coroner himself as the insurer's selection to make it. This was answered September 18th by saying the request was unreasonable and came too late. This transaction was pleaded as a breach of the contract defeating the insurance, since an autopsy would have shown that the pistol was held pressed against insured's head. A physician other than the coroner testified that if a pistol were pressed against the head the gases would enter the head and by expanding there leave traces that would be informative. The coroner testified that the gases from a pistol so fired would burn under the scalp around the wound and that he could have observed that without opening the head, and he thought that he had discovered all that was discoverable. The appellant contends that a verdict in its favor should have been instructed on this evidence, and that the court erred in submitting the matter to the jury on a charge which barred recovery only if plaintiff refused an autopsy arbitrarily, but not if the request for one was not made at a reasonable time after notice of claim under the policy or if the autopsy was not reasonably necessary for the purpose of throwing light on the question of suicide or accident.

There is no strict property in a corpse, and after burial it becomes a part of the ground to which it is committed. But the law has always given it great consideration. The right to possess, preserve, and bury it belongs in the absence of testamentary direction to the surviving spouse if there is one, and if not to the next of kin, who may maintain an action for a deprivation of the right of sepulture or a mutilation of the body. Both under the Roman and the English ecclesiastical law and the law of Louisiana (Choppin v. Dauphin, supra), a body once suitably buried ought to remain undisturbed except for necessary or laudable reasons. It is said that at common law only the owner of the land where the body is buried could sue for a disinterment or disturbance of the grave. But at common law and generally now by statute it is a crime to interfere with a burial or to disinter without authority, but the statutes are held not to prevent such action by public officials or by relatives for the purpose of reinterment and the like. These propositions are supported by the text and citations in 17 C.J., Dead Bodies, page 1136. We assume that by the law of Louisiana not only may the coroner by express statute delay interment or cause a disinterment for the purpose of an autopsy in the interest of public justice, but that for the promotion of the truth in private litigation such as this a court may lawfully order it, or the beneficiary of an insurance consent to it. It is to be borne in mind that an autopsy is not a mere examination of the body, but involves its mutilation by dissection. The right to examine the person of the insured mentioned in the first clause of the quoted policy provision if applicable after death...