The writer concurs in the affirmance of the judgment appealed from, but not in all that is said in the opinion of Justice STANFORD. He prefers this statement:
The deceased, Fred J. Melaun, at the time of the accident alleged to have caused his death, was about 30 years of age, a large man, nearly 6 feet high, weighed about 200 pounds, and appeared to be in good physical condition. On or about April 16, 1922, he fell on a wet and slippery concrete floor, striking the back of his head so as to render him unconscious for about 30 minutes. From this hurt he never recovered, and finally died from its effects, on May 26th, following. This was the finding of the court below, and the evidence is sufficient to support the finding. An autopsy was made on his remains the day after his death, and he was buried May 29, 1922. The appellant was given no notice that an autopsy would be made, or had been made, until the day after the burial.
The policy sued on provided:
"If an autopsy be made the association shall be given timely notice thereof and the right and opportunity for its representative to attend and participate." *Page 251
And:
"Strict compliance on the part of the insured and the beneficiary with all the provisions of this policy is a condition precedent to recovery hereunder."
The appellant pleaded:
"That in failing to give the notice as required by said policy, the insured and the beneficiary failed to comply with the provisions of the policy hereinbefore quoted, which is a condition precedent to the right of recovery thereunder, and therefore this defendant says that there is no liability hereunder."
By assignment the appellant contends that the judgment of the trial court is contrary to the law and the evidence because of the failure of appellee to comply with the provisions of the policy.
There was no evidence that this autopsy was ordered, requested, or assented to by Mrs. Melaun. It does not even appear that she knew that it was going to be made; for the body was removed to an undertaker's establishment, to be prepared for burial, and there the autopsy was made. Dr. Marshall, who attended the deceased, and who was in attendance on his wife, testified that at the time "she was not able physically or mentally to do anything." And as to why the autopsy was made he testified:
"With reference to the autopsy, his brothers or father first indicated that they wanted an autopsy, seemed to question — they did not say, I just inferred — might have taken something, or drank something. They were not satisfied with the cause of his death having been cerebral hemorrhage. That was the thing that made me feel like we ought to have an autopsy made."
It was further shown, by uncontradicted evidence, that while Mrs. Melaun knew that there was some kind of policy on her husband's life, she had never seen it and knew nothing of its terms and conditions. So that even had she been normal, and had consented to the autopsy, she would have been guilty of no intentional violation of its conditions. And it is to be noticed that the appellant, in its pleading above quoted, does not allege that it had suffered any injury on account of appellee's failure to give it timely notice of the autopsy, or that her case cannot be made out exclusive of the evidence developed by the autopsy, nor did it object to the evidence developed by the autopsy, but merely denies liability because of the failure of appellee to give it the "timely notice" provided for in the policy. In reply to this defense, it was only necessary for appellee to allege and prove a sufficient and reasonable excuse for her failure to literally comply with the provisions of the policy. This she did by both pleading and evidence. Born v. City of Spokane, 27 Wn. 719, 68 P. 386; Durham v. City of Spokane, 27 Wn. 615,68 P. 383. As to the sufficiency of her excuse, because of her mental and physical condition, for not giving the notice, as said in the case of Barclay v. Boston, 167 Mass. 597, 46 N.E. 114:
"The question is not whether the best evidence was introduced, nor whether there was proof beyond a reasonable doubt, but whether there was any evidence from which it might fairly be inferred that she was incapacitated."
The case of O'Brion v. Columbian Nat. Life Ins. Co., 119 Me. 94,109 A. 379, is very illuminative of this one. There the policy provided that —
"Any medical adviser of the company shall have the right and opportunity * * * (2) to examine the body or make an autopsy in case of death; and (3) to be present if any autopsy be made, timely notice of which must be given to the company."
And there, as here, an autopsy was made without the insurer being given any notice. And there, as here, the autopsy was procured, not by the beneficiary, but by a brother of the deceased. The breach complained of was that —
The company "was not accorded the right or opportunity to examine the body or to make an autopsy following the death or to be present in case any autopsy was made, nor was the company notified of any autopsy."
The Supreme Court of Maine held, inter alia:
"Nor has clause 3, which requires timely notice to the company of a proposed autopsy, been violated. The autopsy contemplated by that provision is unofficial — one made at the instigation of the beneficiary — and then it is only fair, as prescribed, that seasonable notice thereof be given to the company. Here, however, no, autopsy was made at the instigation of the beneficiary or at her request. It is very doubtful whether in her condition * * * she fully comprehended that one was to be made when the body was removed * * * to the rooms of the undertaker. * * * She had no part in the proceedings. The brother was wholly responsible therefor, and therefore no notice could be given by her."
The other assignments show no error sufficiently grave to justify a remanding of the case.