Appeal from the District Court of the United States for the Eastern District of Illinois; Fred L. Wham, Judge.
Before ALSCHULER, SPARKS, and FITZHENRY, Circuit Judges.
ALSCHULER, Circuit Judge.
The appeal is from a judgment for $5,000 awarded appellee as her damages occasioned through the disinterment of and autopsy upon the body of her father, Charles E. Webber, procured to be done by appellant without appellee's consent.
The father, at his death on May 13, 1930, held two policies of accident insurance issued by appellant, one, called "Acme Accident Policy," dated June 27, 1918, for $10,000, with his wife the beneficiary; the other, called "Ticket Policy," of date May 11, 1930, for $5,000, payable in case of his accidental death to his executors, administrators, or assigns. Each of the policies insured against loss resulting, wholly and independently of all other causes, solely through external and accidental means.
The Acme policy specified: "This insurance does not cover in event of accident or any loss specified in this policy, resulting wholly or partly, directly or indirectly, from bodily or mental infirmity, or disease in any form, or bacterial infection * * *."
The Ticket policy provided: "f. This insurance shall not cover * * * accidental injury, disability, dismemberment or death caused directly or indirectly, wholly or partly, by any of the following, to wit: * * * disease in any form, fits, vertigo * * *."
Each policy contained a provision in full conformance with paragraph 8 of the "Standard Provisions" of the Illinois statute respecting the form for accident insurance policies, as follows: "8. The Company shall have the right and opportunity to examine the person of the insured when and so often as it may reasonably require during the pendency of claim hereunder, and also the right and opportunity to make an autopsy in case of death where it is not forbidden by law." Smith-Hurd Rev. St. 1933, c. 73, § 364, subd. 8, Cahill's Ill. Rev. Stat. c. 73, par. 469, subd. 8.
On May 11 deceased and his wife went from Eldorado, Ill., where they had long resided, to visit at Malden, Mo., about 150 miles from Eldorado, and on the 13th he went fishing there with friends. Near the close of the day he became separated from the others, and was found dead, partly submerged in water, face downward. Inquest was held at Malden, and the body sent back to Eldorado on the 14th, where, at 2 o'clock p.m. of the 16th, it was interred in a nearby cemetery. His will named his wife as executrix, and she duly qualified as such. Appellee, their only child, had, with her husband, long resided with her parents.
On the morning of May 16, the person at Eldorado who had placed the insurance and collected the premiums called at the home of the deceased and asked for and received the policies, saying he would take care of the matter for the widow; and he wired the company's home office at Hartford, Conn., saying that deceased was "Drowned Thirteenth Near Malden Mo Coroners Verdict Accidental Death Will Be Buried Two Oclock Today." On the telegram appears stamped, "Received at Hartford, Conn. 1930 May 16 PM 12 31."
The company sent on its agent to investigate the claim, and as a result of the investigation it was decided that an autopsy was necessary. The representative of the company went to Eldorado on June 11, 1930, and requested Mrs. Webber's consent to an autopsy. He presented two forms to her, one for consent thereto and one for refusal of such consent. He talked with her in the presence of her sister and of appellee's husband. She did not sign that day, and the representative departed leaving the forms with them, and saying he would call the next day. When he came the next day she executed and delivered the consent, her sister and son-in-law signing as witnesses. The consent is: "I, Mrs. Nancy E. Webber, wife of Charles E. Webber, deceased, hereby grant to the AEtna Life Insurance Company of Hartford, Connecticut, the right and opportunity to make an autopsy on the body of my deceased husband, Charles E. Webber, on a date to be found to be convenient to the AEtna Life Insurance Company representatives."
Thereupon the company's investigator arranged with a local undertaker to disinter the body, and on June 20, 1930, the autopsy was performed. On behalf of the family three doctors, one of them a pathologist from Evansville, Ind., were present, and the son-in-law was present "probably a third or maybe a half of the time." On behalf of the company there were two persons present besides the doctor performing the autopsy.
There was evidence indicating that appellee, some days before the autopsy, told the undertaker that she objected to it and would hold him responsible if it was made, and it may be assumed that her consent thereto or to the disinterment was not given. The undertaker so informed the company, requesting that he be indemnified in making the disinterment, and the company agreed to indemnify him.
A few months after the autopsy the company made settlement of the policies with Mrs. Webber. On April 22, 1932, ...