Disinterment of Body of Tow, In re, 48098

• Decision Date: 06 May 1952
• Docket Number: No. 48098,48098
• Parties: In re DISINTERMENT OF BODY OF TOW.
• Court: Iowa Supreme Court

Page 283

53 N.W.2d 283

243 Iowa 695

In re DISINTERMENT OF BODY OF TOW.

No. 48098.

Supreme Court of Iowa.

May 6, 1952.

Mote & Wilson, and Haupert & Robertson, all of Marshalltown, for appellant.

Boardman, Cartwright & Druker, of Marshalltown, for appellee.

SMITH, Justice.

This proceeding originated with the filing of an 'application for disinterment.' It was filed in the office of the District Court Clerk by or on behalf of Hartford Accident & Indemnity Company. It sought disinterment of the body of one J. Basil Tow who had died about three months earlier. The purpose was to hold an autopsy on the cause of death.

Decedent was at time of his death an employee of LeGrand Elevator Co. His widow had promptly filed her Application for Arbitration with the Industrial Commissioner of Iowa seeking award of compensation for his death under the Iowa Workmen's Compensation Law. I.C.A. § 85.1 et seq.

The employer and its insurance carrier, the applicant herein, answered her Application for Arbitration denying that decedent's death resulted from any injury arising out of and in the course of his employment. No hearing has yet been held before the Industrial Commissioner or his deputy. Of course the question of the widow's right to compensation has not been and could not be before the district court except by appeal from a commissioner's award.

Back of the present controversy is the initial disagreement over the cause of M. Tow's death. The widow claims he died from tetanus caused by a injury suffered in the course of his employment a few days earlier. The insurance carrier, applicant here, thinks his death was due to encephalitis which had no causal connection with his employment. It is urged that an autopsy performed upon decedent's body 'may make possible an accurate determination of the cause of death * * * and consequently a fair and accurate determination as to whether (his) death had any causal connection with his employment.'

The surviving spouse resists the application for disinterment, insists the cause of death has been determined by competent medical testimony (death certificate) and denies the proceeding is maintainable under Chapter 141, Iowa Code 1950, I.C.A., specifically Sections 141.22, 141.24 and 141.25.

A hearing was had at which medical testimony was produced, after which the trial court ordered disinterment. This appeal by the surviving spouse is from that order.

I. We are of course not concerned here with the question of the cause of Mr. Tow's death. That was not within the district court's jurisdiction, nor is it within ours. Furthermore, we are not concerned with the correctness of the trial court's factual findings under the testimony adduced at the hearing, justifying the order of disinterment. This is not an appeal involving a review de novo. It is rather a review somewhat in the nature of certiorari. It questions the court's power to act and as we view it we have one question to determine: Do the facts bring the application within the purview of the statute under which the proceeding is sought to be maintained? That is the sole problem presented.

II. Two statutory sections are especially involved in the discussion: (1) Code section 141.24, I.C.A. which provides 'An application for a court order for disinterment for the purpose of holding an autopsy may be made by * * * any attorney representing any party in any criminal or civil proceedings'; and (2) Code section 141.25, I.C.A. which says 'No application for a permit to disinter for the purpose of holding an autopsy shall be granted by the court * * * except under circumstances such as to cause the belief that someone is criminally or civilly liable for such death.' We have italicized the key words over which the debate rages. The sections seem never to have been judicially construed.

Do the attorneys who made this application on behalf of the insurance carrier represent a party in a 'civil proceeding'? And are the circumstances such as to cause the belief that someone is 'civilly liable' for Mr. Tow's death?

Appellant argues that, since the application is not made by or on behalf of the employer, the attorneys who filed it do not represent any one who held any relationship with or responsibility toward decedent. From that premise the conclusion is reached that the application was not made by an 'attorney representing any party.' Both premise and conclusion are open to question.

The employee, though not a party to the insurance contract, was nevertheless a member of a class for whose benefit the contract was made. There is a relationship between him and the insurer carrier. One for whose benefit a contract is entered into may maintain action to enforce his rights under it. Venz v. State Auto Ins. Ass'n, 217 Iowa 662, 666, 251 N.W. 27. The rule is unquestioned in this state. It is unnecessary that the beneficiary assent to the contract or even that he have knowledge of it. Rodgers v. Reinking, 205 Iowa 1311, 1319, 217 N.W. 441.

Furthermore the statute merely requires that the attorney filing the application represent a 'party in a civil proceeding.' There is no requirement that the 'party' hold any position of relationship to decedent.

The whole contention has a practical answer here, however. Appellant, on whose behalf it is made, herself named both the employer and the insurance carrier as parties defendant when she filed her application for arbitration. She asked that both defendants 'be required to answer this application for arbitration.'

In doing this her attorneys followed standard procedure. Code sections 87.9, 87.10 and 87.24, Iowa Code 1950, I.C.A., seem to...