Disinterment of Body of Jarvis, In re, 48247

• Decision Date: 08 April 1953
• Docket Number: No. 48247,48247
• Citation: 58 N.W.2d 24,244 Iowa 1025
• Parties: In re DISINTERMENT OF BODY OF JARVIS.
• Court: Iowa Supreme Court

Page 24

58 N.W.2d 24

244 Iowa 1025

In re DISINTERMENT OF BODY OF JARVIS.

No. 48247.

Supreme Court of Iowa.

April 8, 1953.

Rehearing Denied June 12, 1953.

Life & Davis, Oskaloosa, for appellant.

Lehmann, Hurlburt, Blanchard & Cless, Des Moines, appellee pro se.

GARFIELD, Justice.

Attorneys representing Mutual Benefit Health and Accident Association (herein called 'the company') filed in the district court of Mahaska county application under sections 141.22 to 141.25, Code, 1950, I.C.A., for an order for disinterment of the dead body of Dr. Fred J. Jarvis for the purpose of holding an autopsy. The application was resisted by Dr. Jarvis' widow. After hearing evidence offered by both applicant and resister the district court granted the application and Mrs. Jarvis has appealed to us.

Decedent, a retired physician, age 77, was injured in an automobile accident on January 20, 1952. His right leg was broken at the knee, his right arm and shoulder and the right side of his chest were bruised and perhaps otherwise injured. The following day he was taken to a hospital in Iowa City where he died at 12:47 p.m., January 24. That afternoon his body was returned to Oskaloosa where it was embalmed by a licensed embalmer in late afternoon or early evening. He was buried January 28.

The widow is beneficiary in two accident insurance policies for a total amount of $12,250. One policy was issued by the company represented by applicant, the other was assumed by it. The former policy insures against loss of Dr. Jarvis' life, limb, sight or time resulting directly and independently of all other causes from bodily injuries sustained through purely accidental means. Terms of the other policy are generally similar.

The certificate of death made by Dr. Arthur Steindler, attending physician, gives 'cerebral hemorrhage' as the condition directly leading to Dr. Jarvis' death and gives no antecedent causes. Dr. Steindler's signed statement, part of the beneficiary's proof of claim furnished the company, states 'cerebrovascular accident' was the primary cause of death, and 'pneumonitis' was the secondary or contributing cause. The former term is the substantial equivalent of cerebral hemorrhage and does not mean a traumatic injury. Pneumonitis is another name for pneumonia.

The beneficiary contends and the company denies death was accidental within the meaning of the policies. On June 16, 1952, the company commenced action against Mrs. Jarvis in the United States district court at Ottumwa asking that its liability and the beneficiary's rights under the policies be declared and adjudged. In this action the company contends it is liable only for accidental disability benefits and not for insured's death.

While this application for disinterment was pending Mrs. Jarvis commenced action against the company in the district court of Mahaska county to recover the full amount of the policies on account of her husband's death. This action was transferred to the United States court and consolidated with the action there commenced by the company. The consolidated causes remained undisposed of when the disinterment application was heard and decided in September, 1952.

Section 141.22, Code, 1950, I.C.A., states: 'Disinterment for autopsy. No person shall disinter the dead body of a human being for the purpose of holding an autopsy thereon in order to determine the cause of death without obtaining for that purpose either:

'1. An order of the district court of the county in which the body is buried, or

'2. A special permit from the state department of health.'

Section 141.24 provides: 'Application for court order. An application for a court order for a disinterment for the purpose of holding an autopsy may be made by the county attorney, coroner, or any attorney representing any party in any criminal or civil proceedings. * * *'

Section 141.25 states: 'Granting of application. No application for a permit to disinter for the purpose of holding an autopsy shall be granted * * * except under circumstances such as to cause the belief that someone is criminally or civilly liable for such death. A proper showing shall be made in every case and due consideration shall be given to the public health, the dead, and the feelings of relatives and friends. * * *'

In re Disinterment of Body of Tow, 243 Iowa 695, 53 N.W.2d 283, a proceeding like that now before us, considers these statutes and holds our review of such a proceeding is not de novo but is rather 'somewhat in the nature of certiorari.' Pursuant to this Tow decision counsel for appellant Mrs. Jarvis conceded upon submission of this appeal it is not reviewable de novo and if there is competent evidence to support the trial court's findings they are conclusive upon us. The Tow case also holds at page 286 of 53 N.W.2d: 'It is sufficient to show there is reasonable likelihood that an autopsy would either confirm or negative the claim of the insurer-applicant.' The cited case affirms an order for disinterment although some questions were there raised by the widow which we do not have here.

I. The trial court found there is reasonable liklihood an autopsy would determine the cause of death and thereby confirm or negative the respective claims of the litigants. Appellant argues in substance no proper showing was made that warrants this finding. We think, however, there is substantial evidence to support the finding and it is therefore conclusive upon us.

Appellee offered the testimony of Dr. Birge of Des Moines, a pathologist of wide experience. Appellant offered the evidence of Dr. Phelps of Ottumwa, apparently younger and less experienced. The testimony of each witness fills some 60 pages of the record. We shall not attempt to review it. It is apparent Dr. Birge feels it is reasonably probable an autopsy would disclose the condition that caused decedent's cerebral hemorrhage. In effect he so testifies more than once.

Dr. Phelps expresses the opinion an autopsy would not in all probability establish the cause of death. 'I doubt very seriously that an autopsy at this time would be conclusive.' However Dr. Phelps admits in effect that if the embalming was adequate the autopsy would probably reveal any one of several recognized causes of cerebral hemorrhage such as brain tumor, arteriosclerosis, and traumatic injury to the brain. He also admits in substance that autopsies are very frequently performed for the purpose of determining the cause of death of persons who die under somewhat similar circumstances and says it would be advisable to have an autopsy upon one who dies from cerebral hemorrhage with no clinical symptoms present. Near the end of his cross-examination Dr. Phelps concludes it is very definitely possible an autopsy could show the cause of death.

Much of appellant's argument as to the claimed lack of evidence to support the trial court's finding is based on some of the cross-examination of the undertaker who did the embalming. He testifies on direct examination by appellee that he is a licensed embalmer and followed the usual procedure of embalming here. On cross-examination he says in part Dr. Jarvis' 'circulation wasn't what I would call real good. * * * I wouldn't say we had a good embalming job.' He adds that deterioration or decomposition of the body would be more rapid than if there was a good embalming job.

However, the undertaker testifies on redirect examination that the embalming fluid was inserted into the carotid artery which directly serves the brain and he has no way of knowing that a satisfactory job of embalming was not done in the brain. Appellant's witness Dr. Phelps testifies he wouldn't say Dr. Jarvis' leg fracture would obstruct circulation of the embalming fluid--it would require only entering the blood vessels beyond the fractured place. He also says there would be no reason to question the circulation through the brain of embalming fluid inserted into the carotid artery.

We deem further discussion of the evidence unnecessary.

II. Appellant contends appellee's application should have been denied because it is said to be unreasonable and not seasonably made. The contention cannot be sustained under the circumstances here.

There are several answers to appellant's argument the company should have asked for an autopsy before burial. The policies are not before us. There is no evidence either policy gives the company any right to an autopsy at any time. It seems apparent any request by the company for an autopsy would probably not have been granted. Appellant did not furnish the company a claim for accidental death benefits until about February 22, 1952 (burial was on January 28). So far as shown this claim is the first information the company had that death was caused by cerebral hemorrhage. Before then there was no reason for the company to doubt that death was accidental and hence no reason to seek an autopsy.

This application was filed under Code sections 141.22 et seq., I.C.A. Unless such an application is made by the county attorney or coroner it may be made only by an 'attorney representing any party in any criminal or civil proceedings.' Section 141.24. It is apparent from these statutes and In re Disinterment of Body of Tow, supra, 243 Iowa 695, 53 N.W.2d 283, that the proceedings referred to are those which involve the cause of death. Such proceedings are frequently not commenced until at least some little time after death.

Here no such proceeding was started until the company commenced its action in the federal court on June 16, 1952. Before then no one representing the company was entitled to apply for a court order for disinterment. Appellant commenced no action against the company until after this application was filed on July 8.

This application was set for hearing July 22 but appellee was unable to get service of notice upon appellant because of her absence from the jurisdiction and the hearing was not held until September 10 and...