Saperstein v. Commercial Travelers Mutual Accident Ass'n

Staley, Jr., J.

(dissenting). The policy of insurance issued by defendant contained the following clause: ‘ The Association at its own expense shall have the right and opportunity to examine the person of the member when and as often as it may reasonably require during the pendency of a claim hereunder and to make an autopsy in case of death where it is not forbidden by law.”

On March 3, 1968 the insured was involved in a one-car accident and died. In the Acting Coroner’s report and again in the police accident report, the cause of death was stated to be a broken neck. The insured was buried on March 5, 1968, and on March 12, defendant was notified of his death. Subsequently, on April 10, 1968 plaintiff, as widow of the insured and beneficiary named in the policy of insurance, submitted a proof of loss form to defendant claiming that the insured’s death was solely the result of accidental body injuries. On April 11, 1968 defendant served a demand for an autopsy of the insured which demand was denied by plaintiff whereupon defendant denied liability.

Plaintiff thereafter commenced the action to recover the face value of the policy and, serving its answer, defendant moved for summary judgment which was granted. Special Term, holding that the demand for an autopsy was reasonable, found that the refusal to comply with the demand barred recovery under the policy.

In support of its motion for summáry judgment, defendant sets forth that the decedent, in 1961, was hospitalized for hyper*492tension, and that the radiological report at that time indicated that his heart was hypertensive in outline and that he was admitted to the hospital because of precordial pain. In view of this medical history, defendant made its demand for an autopsy.

It has frequently been held that the contract provision made by the insured during his lifetime permitting the insurance company the right to examine the body and make an autopsy in the event of a claim based on accidental death is a condition precedent to recovery under the policy.

In Titus v. Travelers Ins. Co. (268 App. Div. 802), the insured died on February 10, 1943. The insurance company was not notified until June, 1943 and on July 2, 1943, the company made its demand for an autopsy which the beneficiary refused. The Appellate Division, reversing Special Term and granting summary judgment in favor of the company, held that ‘ ‘ The failure of plaintiff to comply with the condition precedent, in that she refused to allow the autopsy, bars any recovery under the policy. (Dvorkin v. Commercial Travelers Mut. Accident Assn., 258 App. Div. 501, affd. 283 N. Y. 629; Gould v. Travelers Insurance Co., 244 App. Div. 274, affd. 270 N. Y. 584.) ”

The case of Wehle v. United States Mut. Acc. Assn. (153 N. Y. 116, 123) relied upon by plaintiff is clearly distinguishable since in that case an opportunity was afforded the insurance company to examine the body of the insured before interment, and the court held that it was “ an unreasonable delay on the part of the insurer to wait until after the body of the deceased was interred, and nothing appears in the evidence to show any excuse for it, if it was deemed that an examination of the body was necessary.”

Here, the period from the date of interment to date of demand was not unreasonable, and the judgment should be affirmed.

Sweeney and Kane, JJ., concur with Greenblott, J.; Cooke, J., concurs in the result in a separate opinion; Staley, Jr., J., dissents and votes to affirm in an opinion.

Order and judgment reversed, on the law, and motion denied, with posts,