Aetna Life Ins. Co. v. Burton
| Decision Date | 26 January 1938 |
| Docket Number | 15630. |
| Citation | 12 N.E.2d 360,104 Ind.App. 576 |
| Parties | ETNA LIFE INS. CO. v. BURTON. |
| Court | Indiana Appellate Court |
Bracken Gray & De Fur, of Muncie, and Frederick S. Caldwell, of Winchester, for appellant.
Fred Davis, Clarence E. Benadum, and Joseph H. Davis, all of Muncie, Nichols & Nichols, of Winchester, Noel A. Du Comb, of South Bend, and Robert F. Murray, of Muncie, for appellee.
This was an action in tort by a complaint in one paragraph which charged the violation of (1) the appellee's legal right to bury whole the body of her deceased husband, (2) her right to a reasonable notice to the holding of an autopsy, (3) her right as the surviving spouse to the custody of the body of her deceased husband in the same condition as when life departed without desecration or mutilation, and (4) her right to dispose of the body by decent interment. To this complaint the appellant, as far as material here, filed a motion to strike out certain parts thereof and, upon that being overruled, it filed a demurrer which was also overruled. Appellant then filed an answer in three paragraphs, the first of which was a general denial, the second alleged that under the statute, upon performance of certain conditions, the appellant had a legal right to perform an autopsy, and that such conditions had been complied with, and the third was to the same effect as the second. The second and third paragraphs of answer were replied to in general denial.
Trial was had to a jury, and a verdict for the appellee was rendered in the sum of $2,500, and judgment was entered accordingly. Following the overruling of a motion for new trial, the grounds of which were that the verdict was not sustained by sufficient evidence, that it was contrary to law, and error in the giving and refusing to give certain instructions, this appeal was perfected, assigning as error the overruling (1) of the motion for new trial, (2) of the motion to strike out parts of the complaint, and (3) of the demurrer.
The evidence most favorable to the appellee discloses that her husband was some seventy odd years of age and had been in the employ of Joseph A. Goddard Company for forty-seven years that a few weeks before his death he met with an accident in the course of his employment and injured his hand and wrist that the company furnished him medical attention from the date of the injury until his death; that the appellee had been married to her deceased husband for more than fifty years and had reared a family of seven children; that on the second day after his death the appellant, through its agents, certain physicians and surgeons, caused an autopsy to be performed upon the body of her deceased husband after it had been embalmed and was in the mortuary awaiting return to her home; that the persons performing the autopsy cut the body from the Adam's apple to four inches below the navel and removed all the organs of the body within those cavities and removed from said organs certain pieces thereof for the purpose of miscroscopic inspection; that the organs so removed were replaced and the body sewn up in such manner as to leave fluids therein which exuded from the mouth of the decedent.
The appellant sought to have stricken from the amended complaint the following words: "said surgeons and doctors, acting as the agents, workmen and employees and representatives of said defendants, with large steel knives, steel saws, steel pliers and steel instruments of various kinds, cut, sawed, mutilated, lacerated and opened the dead body of plaintiff's said husband, removing therefrom the stomach, bowels, heart, lungs, arteries, and other organs, which were cut into, lacerated, and mutilated by said surgeons and doctors working for said defendants, at defendant's special instance and request, all without the knowledge and consent of plaintiff," and "by reason of the horrible and gruesome cutting, laceration, mutilation, tearing, and sawing of the flesh, veins, heart, lungs, and other vital organs of her said husband, the memory of which is continuously in her mind, haunting her every move and action, she," which they claimed was redundant matter and operated to prejudice the jury. It is never reversible error to refuse to strike out parts of the complaint unless its nature is so impertinent that it reflects on character or is scandalous, and we do not believe, in view of the general allegations of the complaint as a whole, that it operated to prejudice the appellant.
The memorandum attached to the demurrer for want of sufficient facts...
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