Gahn v. Leary
| Decision Date | 26 June 1945 |
| Citation | 61 N.E.2d 844,318 Mass. 425 |
| Parties | CARL J. GAHN v. TIMOTHY LEARY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
May 9, 1945.
Present: FIELD, C.
J., LUMMUS, QUA RONAN, & WILKINS, JJ.
Autopsy. Medical Examiner.
Dead Body. Public Officer. Evidence, Judicial notice, Presumptions and burden of proof. Practice, Civil, Ordering verdict.
A motion by a defendant that "on the pleadings and the evidence" a verdict be directed for him presented both the question whether the allegations in the declaration, if proved, would entitle the plaintiff to judgment, and the question whether the evidence was sufficient to support those allegations.
This court took judicial notice of the fact that the defendant in an action for performing an allegedly illegal autopsy in the county of Suffolk was medical examiner for that county. A document purporting to be issued under G. L. (Ter. Ed.) c. 38, Section
6, as amended giving a medical examiner authority to perform an autopsy must be accepted as true at the trial of an action against him for performing an allegedly illegal autopsy, where it was put in evidence as part of the testimony of the defendant, called as a witness by the plaintiff, and neither its authenticity nor its accuracy was questioned by the plaintiff.
No consent by a surviving spouse of a deceased person to the performing of an autopsy by a medical examiner is required where the examiner proceeds according to the provisions of G. L. (Ter. Ed.) c. 38, Section 6, as amended.
In the absence of bad faith, a determination by a medical examiner within his jurisdiction to make an authorized autopsy under G. L. (Ter. Ed.) c.
38, Section 6, as amended, cannot be questioned.
A verdict for the defendant in an action against a medical examiner for illegally performing an autopsy was properly directed at the close of the plaintiff's evidence where testimony of the defendant, called as a witness by the plaintiff, if believed, showed that, in accordance with the requirements of G. L. (Ter. Ed.) c. 38, Section 6, as amended, after procuring written authority from the district attorney, the defendant performed the autopsy in a case which he in good faith considered presented a question whether the death had resulted from poisoning, and where, if his testimony were disbelieved in whole or in part, there still was no evidence warranting a verdict for the plaintiff.
TORT. Writ in the Superior Court dated August 17, 1943. The case was tried before Buttrick, J. At the close of the plaintiff's evidence, the judge allowed a motion by the defendant that "on the pleadings and the evidence" a verdict be directed for the defendant.
M. Rosenthal, for the plaintiff. J. N. Clark, for the defendant.
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, and cases cited. Colby Haberdashers, Inc. v. Bradstreet Co. 267 Mass. 166 , 170-171. The motion also had the usual effect of raising the question whether the evidence was sufficient to 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. Opinion of the Justices, 240 Mass. 616, 618. See International Paper Co. v. Commonwealth, 232 Mass. 7 , 15; Independent-Progressive Party v. Secretary of the Commonwealth, 266 Mass. 18, 21-22. 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 Railroad, 216 Mass. 269 , 273. Dean v. Boston Elevated Railway, 217 Mass. 495, 497-498. Commonwealth v. Kozlowsky, 238 Mass. 379 , 384-385. Meteor Products Co. Inc. v. Societe d'Electro-Chemie et d'Electro-Metallurgie, 263 Mass. 543 , 547-548. Crean v. Boston Elevated Railway, 292 Mass. 226 , 228. LeBlanc v. Cutler Co. 305 Mass. 283 , 285. Duff v. Webster, 315 Mass. 102 , 103.
The provisions of G. L. (Ter. Ed.) c. 38, Section 6, as amended, are in part:
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, Section 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, Section 7, as amended. 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, Sections 7, 8, as amended.
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, make . . . 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. Streipe v. Liberty Mutual Life Ins. Co. 243 Ky. 15, 17-18. Thompson v. Pierce, 95 Neb. 692, 693. Simpkins v. Lumbermens Mutual Casualty Co. 200 S.C. 228, 237. See Durell v. Hayward, 9 Gray, 248;
Burney v Children's Hospital, 169 Mass. 57; Vaughan v. Vaughan, 294 Mass. 164, 166. As was said in Sheehan v. Commercial Travelers Mutual Accident Association, 283 Mass. 543 , 553, "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...
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