Gahn v. Leary

• Decision Date: 26 June 1945
• Citation: 61 N.E.2d 844,318 Mass. 425
• Parties: GAHN v. LEARY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

318 Mass. 425

61 N.E.2d 844

GAHN

v.LEARY.

Supreme Judicial Court of Massachusetts, Suffolk.

June 26, 1945.

Exceptions from Superior Court, Suffolk County; _____, Judge.

Action of tort by Carl J. Gahn against Timothy Leary for performing an allegedly illegal autopsy on the body of plaintiff's wife. Defendant's motion for a directed verdict was granted, and plaintiff brings exceptions.

Exceptions overruled.

Before FIELD, C. J., and LUMMUS, QUA, RONAN, and WILKINS, JJ.

M. Rosenthal, of Boston, for plaintiff.

J. N. Clark, of Boston, for defendant.

WILKINS, Justice.

The plaintiff, who was the husband of Margaret Gahn, deceased, brings an action of tort against a medical examiner for the county of Suffolk for allegedly performing an illegal autopsy on the body of Margaret Gahn. At the conclusion of the evidence the judge, subject to the plaintiff's exception, granted the defendant's motion for a directed verdict. The correctness of this ruling is the sole question presented.

The defendant's motion was based ‘on the pleadings and the evidence.’ One effect of the motion was to raise the question whether the allegations in the declaration, if proved, entitled the plaintiff to judgment. Murphy v. Russell, 202 Mass. 480, 481, 89 N.E. 107, and cases cited. Colby Haberdashers, Inc. v. Bradstreet Co., 267 Mass. 166, 170, 171, 166 N.E. 550. The motion also had the usual effect of raising the question whether the evidence was sufficientto support the allegations of the declaration.

The declaration alleges, and the only evidence shows, that the autopsy was performed by the defendant on June 19, 1943. We take judicial notice that on that date the defendant was a medical examiner for the county of Suffolk. Weitzel v. Brown, 224 Mass. 190, 192, 112 N.E. 945;Opinion of the Justices, 240 Mass. 616, 618, 136 N.E. 157, 23 A.L.R. 610. See International Paper Co. v. Commonwealth, 232 Mass. 7, 15, 121 N.E. 510;Independent-Progressive Party v. Secretary of the Commonwealth, 266 Mass. 18, 21, 22, 164 N.E. 654. From the testimony of the defendant, who was called as a witness by the plaintiff, it also appears that before proceeding he had obtained from the district attorney of Suffolk County the following document: ‘Commonwealth of Massachusetts Suffolk, ss. To Timothy Leary, M. D., Medical Examiner: In accordance with Section 6 of Chapter 38 of the General Laws, you are hereby authorized to make an autopsy of the dead body of Margaret Gahn. [Signed] William J. Foley. District Attorney. Boston, June 19, 1943.’ The authenticity or the accuracy of the document has not been attacked by the plaintiff in the Superior Court or in this court. It, accordingly, must be accepted as true. Parsons v. New York, New Haven & Hartford R., 216 Mass. 269, 273,105 N.E. 693;Dean v. Boston Elevated R., 217 Mass. 495, 497, 498, 105 N.E. 616.Commonwealth v. Kozlowsky, 238 Mass. 379, 384, 385, 131 N.E. 207;Meteor Products Co. Inc. v. Societe d'Electro-Chimie et d'Electro-Metallurgie, 263 Mass. 543, 547, 548, 161 N.E. 875;Cream v. Boston Elevated R., 292 Mass. 226, 228, 198 N.E. 172;LeBlanc v. Cutler Co., 305 Mass. 283, 285, 25 N.E.2d 715;Duff v. Webster, 315 Mass. 102, 103, 51 N.E.2d 957.

The provisions of G.L. (Ter.Ed.) c. 38, § 6, as amended, St.1939, c. 475; are in part: ‘Medical examiners shall make examination upon the view of the dead bodies of only such persons as are supposed to have died by violence. If a medical examiner has notice that there is within his county the body of such a person, he shall forthwith go to the place where the body lies and take charge of the same; and if, on view thereof and personal inquiry into the cause and manner of death, he considers a further examination necessary, he shall, upon written authorization of the district attorney, mayor or selectmen of the district, city or town where the body lies, make an autopsy in the presence of two or more discreet persons, whose attendance he may compel by subpoena. * * * Before making such autopsy he may call the attention of the witnesses to the appearance and position of the body. He shall then and there carefully record every fact and circumstance tending to show the condition of the body and the cause and manner of death, with the names and addresses of said witnesses, which record he shall subscribe.’

The proceedings thus prescribed in the case of dead bodies begin with a mandatory view by the medical examiner but only of the bodies of such ‘persons as are supposed to have died by violence.’ This means ‘supposed’ by anyone within the ‘notice’ of the medical examiner, the legislative intent clearly being to ensure a view in every doubtful case. It would not be a supposition by the medical examiner himself except where he might happen to know of such a death. Death ‘by violence’ comprehends death from other than natural causes, including poisoning. N. W. Commercial Travellers' Association v. London Guarantee & Accident Co., 10 Manitoba, 537, 550. This is especially clear from the provision in G.L. (Ter. Ed.) c. 38, § 6, as amended: ‘The medical examiner may, if he considers it necessary, employ a chemist to aid in the examination of the body or of substances supposed to have caused or contributed to the death.’ If, after the view and ‘personal inquiry into the cause and manner of death,’ the medical examiner ‘considers a further examination necessary,’ he shall, upon written authorization of the district attorney, or of other designated officials, make an autopsy. Stated another way, if his considered judgment is that an autopsy is necessary for the ascertainment of the manner and cause of death, he is obliged to make one, subject to obtaining the requisite authorization. This conclusion is manifest from the following section of the statute: ‘He shall forthwith file with the district attorney for his district a report of each autopsy and view and of his personal inquiries, with a certificate that, in his judgment, the manner and cause of death could not be ascertained by view and inquiry and that an autopsy was necessary.’ G.L. (Ter.Ed.) c. 38, § 7, as amended, St.1941, c. 366. The provisions as to notification and for subsequent proceedings by way of inquest where required are not now material. See G.L. (Ter. Ed.) c. 38, §§ 7, 8, as amended, St.1941, c. 366, St.1939, c. 30, § 1.

The declaration was in two counts for the same cause of action. The first count alleged that ‘the defendant without authority and against the wishes of the plaintiff but in violation and in disregard thereof, and trespassing upon the rights of the plaintiff as custodian of the body * * * did upon the deceased body of said wife, made * * * a surgical operation or dissection.’ As a general rule, the surviving spouse is properly the plaintiff in this kind of action. Larson v. Chase, 47 Minn. 307, 309, 50 N.W. 238,14 L.R.A. 85, 28 Am.St.Rep. 370;Streipe v. Liberty Mutual Life Ins. Co., 243 Ky. 15, 17, 18, 47 S.W.2d 1004;Thompson v. Pierce, 95 Neb. 692, 693, 146 N.W. 948;Simpkins v. Lumbermen's Mutual Casualty Co., 200 S.C. 228, 237, 20 S.E.2d 733. See Durell v. Hayward, 9 Gray, 248, 69 Am.Dec. 284; Burney v. Children's Hospital, 169 Mass. 57, 47 N.E. 401,38 L.R.A. 413, 61 Am.St.Rep. 273;Vaughan v. Vaughan, 294 Mass. 164, 166, 200 N.E. 912. As was said in Sheehan v. Commercial Travelers Mutual Accident Association, 283 Mass. 543, 553, 186 N.E. 627, 631, 88 A.L.R. 975, ‘The right of possession of a dead body for the purpose of burial or other lawful disposition and, consequently, for the purpose of an autopsy, subject to some limitations in the public interest, is vested, at least in the absence of a different provision by the deceased, in the surviving husband, wife or next of kin.’ One of the limitations in the public interest is the making of an autopsy by a medical examiner under G.L. (Ter.Ed.) c. 38, § 6, as amended. In such circumstances, no consent is required of the surviving spouse, whose rights are subordinate to paramount public interests. See Kingsley v. Forsyth, 192 Minn. 468, 470, 257 N.W. 95;Sturgeon v. Crosby Mortuary, Inc., 140 Neb. 82, 91, 92, 299 N.W. 378. The plaintiff, therefore, could not recover on the first count.

The second count substantially repeated the allegations of the first count and contained the additional allegations that the defendant ‘having no reason to suppose that death came by violence’ acted ‘without authority as required by law, but in violation and in disregard thereof.’

We are of the opinion that the plaintiff was not entitled to go to the jury on the second count. While the oral testimony, which came entirely from witnesses called by the plaintiff, could be disbelieved by the...