Equitable Life Assur. Soc. of U.S. v. Young & Revel, Inc.

• Decision Date: 04 February 1969
• Court: United States State Supreme Court of Delaware
• Parties: The EQUITABLE LIFE ASSURANCE SOCIETY OF the U.S., Defendant Below, Appellant, v. YOUNG & REVEL, INC., Plaintiff Below, Appellee, and Vera Ann Revel, Movant Below, Appellee.

Page 509

250 A.2d 509

The EQUITABLE LIFE ASSURANCE SOCIETY OF the U.S., Defendant Below, Appellant, v. YOUNG & REVEL, INC., Plaintiff Below, Appellee, and Vera Ann

Revel, Movant Below, Appellee.

Supreme Court of Delaware.

Feb. 4, 1969.

Michael D. Goldman, of Potter, Anderson & Corroon, Wilmington, for defendant below, appellant.

George Tyler Coulson, of Morris, Nichols, Arsht & Tunnell, Wilmington, for movant and plaintiff below, appellees.

Upon appeal from the Superior Court. Affirmed.

WOLCOTT, C.J., and CAREY and HERRMANN, JJ., sitting.

CAREY, Justice:

In this appeal, The Equitable Life Assurance Society of the U.S. (Equitable), defendant below, seeks the reversal of an order of the Superior Court quashing a subpoena Duces tecum served upon Vera Ann Revel, movant below.

The plaintiff below, Young & Revel, Inc., carried two insurance policies with Equitable on the life of its president, G. Thomas Revel, Jr. This action was brought to recover the amount allegedly due under the double indemnity provision of the policies. Mr. Revel died in a swimming pool on August 5, 1967, and was buried four days later. Plaintiff contends that he drowned accidentally. Equitable's agent, when informed of the death on August 7, 1967, indicated that an investigation to determine the cause of death would probably be necessary because of the double indemnity provision. On October 20, 1967, Equitable requested permission to exhume the body and perform an autopsy, but this permission was refused by Mrs. Revel.

This suit was instituted on May 5, 1968; thereafter, pursuant to Superior Court Rule 45(d), Del.C.Ann., Equitable caused to be issued a subpoena Duces tecum to Mrs. Revel, demanding that she produce the body for an autopsy. She promptly moved to quash the subpoena, and the Superior Court granted that motion. Equitable has appealed from that order and Mrs. Revel has moved to dismiss the appeal.

Three questions have been discussed in the briefs. These are: (1) Is the order entered below appealable; (2) May a subpoena Duces tecum be utilized to obtain an autopsy; and (3) Did the Superior Court err in denying permission for the autopsy? We decide only the first and third questions.

I

We disagree with appellees' contention that the order of the Superior Court is not appealable. An appeal will lie from an interlocutory order which determines a substantial issue and establishes rights. Walsh v. Hotel Corporation of America, Del., 231 A.2d 458; American Insurance Company v. Synvar Corporation, Del., 199 A.2d 755. The policies issued to the plaintiff below contained a provision that the company 'shall, in the absence of legal prohibition, have the right and opportunity to make an autopsy.' The Superior Court decided that Equitable could not, in the present case, enforce this provision of the policies. The decision, in our opinion, determines a substantial legal issue and establishes rights. The motion to dismiss the appeal will accordingly be denied.

II

In the briefs before us, counsel are in agreement that the law pertaining to minimal standards for securing an autopsy is correctly set forth in McCulloch v. Mutual Life Ins. Co. of New York, 4 Cir., 109 F.2d 866. In that case, the Court used the following language:

'While it is difficult to lay down a rule generally applicable under all circumstances, it is safe to say that two conditions at least must concur to justify an autopsy after burial. It must appear that through no fault...