Streipe v. Liberty Mutual Life Insurance Co.

• Decision Date: 16 February 1932
• Parties: Streipe v. Liberty Mutual Life Insurance Company et al.
• Court: United States State Supreme Court — District of Kentucky

243 Ky. 15

Streipe v. Liberty Mutual Life Insurance Company et al.

Court of Appeals of Kentucky. Common Pleas Branch, Second Division.

Decided February 16, 1932.

1. Appeal and Error. — Reviewing court, in passing on peremptory instruction for defendant, takes view of evidence most favorable to plaintiff.

2. Dead Bodies. — Surviving spouse has right to possession of dead body and can recover damages for injuries to feelings resulting from wrongful mutilation or mishandling.

3. Dead Bodies. — Coroner has no lawful right to conduct inquest or hold autopsy unless authorized person requests it or coroner has reason to believe crime has been committed (Ky. Stats., secs. 528, 532).

4. Dead Bodies. — Autopsy ordered by coroner at request of compensation insurance carrier, merely to determine whether employee's death was compensable, where performed without knowledge of widow, held unauthorized, warranting widow's recovery of damages from coroner (Ky. Stats., secs. 528, 532).

5. Dead Bodies. — Coroner and persons assisting him in performing illegal autopsy, or approving thereof, if done for their benefit, are liable to deceased's widow for damages (Ky. Stats., secs. 528, 532).

6. Dead Bodies. — Whether physician employed by coroner to conduct unauthorized autopsy had without widow's consent was liable to widow for damages held question for jury (Ky. Stats., secs. 528, 532).

7. Dead Bodies. — Request of coroner affords no protection to surgeon performing illegal autopsy, if coroner's order is unauthorized.

8. Torts. — One cannot escape consequences of wrongful act on ground act was official act or was directed by another without authority.

9. Dead Bodies. — Physicians who merely observed another's performance of autopsy without knowledge that autopsy was unauthorized held, as matter of law, not liable to deceased's widow for damages.

10. Action. — Presence of person at scene of wrongful act will not alone render him liable.

11. Evidence. — Answer admitting certain conduct constitutes competent evidence against defendants, notwithstanding withdrawal thereof.

12. Dead Bodies. — Liability to widow of compensation insurance carrier which requested coroner to have autopsy on body of deceased employee held question for jury in action for unauthorized autopsy had without widow's consent (Ky. Stats., secs. 528, 532).

The evidence disclosed that the insurance company paid a physician $50 for his part in performing the autopsy, and that it approved of all that had been done, and that the widow was not consulted or advised, and that by the production of facts gathered at the autopsy the insurance carrier was enabled to defeat compensation claim.

13. Conspiracy. — Conspiracy may be shown by circumstantial evidence, and concert of action constitutes cogent evidence of previous understanding.

Appeal from Jefferson Circuit Court

W.G. DEARING and T.A. LUMAN for appellant.

ROBERT F. VAUGHAN and FRED FORCHT for appellee.

OPINION OF THE COURT BY JUDGE WILLIS.

Affirming in part and reversing in part.

Frances Streipe, the widow of Henry C. Streipe, instituted an action to recover damages for the unlawful mutilation and dissection of the body of her deceased husband. The defendants were the coroner of Jefferson county, a physician who performed an autopsy at the instance of the coroner, two other physicians who observed the autopsy on behalf of an insurance company, the insurance company itself, and an undertaker to whom the body was intrusted for burial. The petition charged a conspiracy on the part of the defendants to perform an unlawful autopsy upon the body of plaintiff's deceased husband, without her knowledge or consent, and alleged that the wrong was fully accomplished, because of which she sought to recover substantial damages. The trial court gave a peremptory instruction in favor of the defendants, except the coroner, against whom the jury returned a verdict for $4,500. The coroner has not appealed from the judgment against him. The undertaker was dropped as a defendant, and the present appeal is by the plaintiff to procure a new trial as against the insurance company, the physician who conducted the autopsy, and the two physicians who stood by while the autopsy was being performed. The question to be determined is the right of the plaintiff to have the case submitted to the jury as against the insurance company and the three doctors. The solution of the problem depends upon whether there was any evidence tending to sustain the cause of action upon which the plaintiff relied for a recovery. In passing upon the propriety of a peremptory instruction, it is the practice of this court to take that view of the evidence, and the inferences reasonably deducible therefrom, most favorable to the plaintiff. Terrell v. Southern Ry. Co., 225 Ky. 645, 9 S.W. (2d) 993; Stanley's Admr. v. Duvin Coal Co., 237 Ky. 820, 36 S.W. (2d) 630.

Henry C. Streipe was employed by Hubbuch Brothers & Wellendorf, who were operating under the Workmen's Compensation Act (Ky. Stats., secs. 4880-4987), and the Liberty Mutual Insurance Company was the insurance carrier. On May 29, 1928, while engaged for his employer in hanging awnings on second story windows, Streipe fell from a ladder to the ground and sustained a personal injury. He was picked up by the police patrol and carried to the city hospital, but died on the journey. His visible injury consisted of a broken leg. The body was sent to an undertaker to be prepared for burial. Dr. Roy S. Carter, the coroner of the county, caused an autopsy to be held by Dr. W.S. Carter. Dr. Wilbur Helmus and Dr. E.C. Withrespoon attended the autopsy as observers for the insurance company. The agent of the insurance company was in touch with the coroner's office and desired that an autopsy be held. The tendency of the evidence will be discussed later in this opinion.

Since the opinion of the Supreme Court of Minnesota, in the case of Larson v. Chase, 47 Minn. 307, 50 N.W. 238, 14 L.R.A. 85, 28 Am. St. Rep. 370, where Judge Mitchell gave exhaustive consideration to the subject it has been regarded as the settled law of this country that, for the purpose of preservation and sepulture, a surviving spouse, or next of kin, in the absence of a different disposition by will, has the right to possession of the dead body, which the law will recognize and protect from unlawful invasion by awarding damages for injury to the feelings resulting from any wrongful mutilation or mishandling of the corpse. 8 R.C.L., sec. 18, p. 695; 17 C.J., sec. 16, p. 1143; Burney v. Children's Hospital, 169 Mass. 57, 47 N.E. 401, 38 L.R.A. 413, 61 Am. St. Rep. 273; Darcy v. Presbyterian Hospital, 202 N.Y. 259, 95 N.E. 695, Ann. Cas. 1912D, 1238; Hill v. Travelers' Ins. Co., 154 Tenn. 295, 294 S.W. 1097, 52 A.L.R. 1442; Meyers v. Clarke & Duddenhauser, 122 Ky. 866, 90 S.W. 1049, 93 S.W. 43, 28 Ky. Law Rep. 1000, 29 Ky. Law Rep. 393, 5 L.R.A. (N.S.) 727; Hockenhammer v. Lex. & East Ry. Co., 74 S.W. 222, 24 Ky. Law Rep. 2383; Louisville & N.R.R. Co. v. Hall, 219 Ky. 528, 293 S.W. 1091; Woods v. Graham, 140 Minn. 16, 167 N.W. 113, L.R.A. 1918D, 403; Long v. Chicago, R.I. & P.R. Co., 15 Okl. 512, 86 P. 289, 6 L.R.A. (N.S.) 883, 6 Ann. Cas. 1005; Floyd v. Atlantic Coast Line, 167 N.C. 55, 83 S.E. 12, L.R.A. 1915B, 519; Keyes v. Konkel, 119 Mich. 550, 78 N.W. 649, 44 L.R.A. 242, 75 Am. St. Rep. 428.

If the autopsy in question was not authorized by the plaintiff, or by some provision of law, it was illegal and wrongful. Meyers v. Carke & Duddenhauser, supra. It is not pretended that the plaintiff authorized or consented to the autopsy, or even that she knew of it, which leaves for consideration the extent of the authority conferred by law upon the coroner. The statute provides:

"It shall be the duty of the coroner, upon request, or when he has reason to believe a crime has been committed, to hold an inquest upon the body of any person slain, drowned or otherwise suddenly killed. His jury shall be composed of six good housekeepers of the county, summoned and sworn by himself, who upon their oaths, shall inquire, and say, in writing, if they know in what manner the person came to his death, when, where, how and by whom, and who were present, and who are culpable of the act." Section 528, Ky. Stat.

When a lawful inquest is being held, and a post mortem examination is deemed necessary, within the limits and under the circumstances defined by section 532, Ky. Stats., the coroner may cause an autopsy to be held. The function of the coroner is to aid in the administration of the criminal laws of the state. AEtna Life Ins. Co. v. Milward, 118 Ky. 725, 82 S.W. 364, 26 Ky. Law Rep. 589, 68 L.R.A. 285, 4 Am. Cas. 1092. He has no lawful right to conduct an inquest, or to cause an autopsy to be held in the course of an inquest, unless he has reason to believe that a crime has been committed, or unless he has been requested to do so by some one who is authorized to make such a request. An insurance carrier, with merely a private interest to serve, would not come within the purview of that provision. Certainly the rights of the surviving spouse, or the next of kin, to the body of the deceased cannot be subordinated to anything less than an overriding public interest sanctioned by law. In Meyers v. Clarke & Duddenhauser, supra, the defendants were sued for damages for holding an autopsy without the consent of the persons entitled to the custody of the body. They were permitted to rely upon a valid police regulation enacted by the city where the death occurred which authorized an autopsy when necessary to enable the doctors to issue a burial permit. In this case no city ordinance was relied upon, and the sole authority of the coroner for ordering the autopsy was section 528 of the statute above quoted. It is quite clear that the statute conferred upon the coroner no authority to order an autopsy in a case like the present one. Cf. Fuson v. Com., ...