This is an action to recover death benefits under a certificate of accident insurance issued to John W. Moore by appellant, a fraternal benefit society. The court below entered judgment upon a jury verdict for the beneficiary, and the insurer appealed.
The suit was filed in the Superior Court of Georgia, whence it was removed to the United States District Court. Service of process was had upon appellant’s statutory agent for process 011 April 14, 1941, and was returnable May 5, 1941. Appellant moved to dismiss on the ground that, since the process required appellant to file its answer, pleading, or defense within less than thirty days from the date of service, the service was invalid under Section 56-1621 of the Georgia Code. Section 81-218 of the Georgia Code provides that, whenever process is not served the length of time required by law before the appearance term, such service shall be good for the next succeeding term thereafter, which shall be the appearance term. The statute supplements Section 56-1621, supra, is applicable to cases of service upon fraternal benefit societies, and operates not to invalidate the process but only to postpone the due date of the answer or defensive pleading.1 The motion to dismiss was properly denied.
Appellant moved for a directed verdict, and for judgment non obstante veredicto, upon three grounds: that there was no substantial evidence from which the jury might find that the death of the insured was due to accidental means only as defined in and covered by the policy; that the certificate as to cause of the insured’s death, filed with the state by his attending physician, was prima facie proof that his death did not result from accidental means, and there was no evidence suffi*560cient to overcome such proof; and that appellee, by refusing to permit appellant to perform an autopsy, forfeited all rights to benefits under the certificate of insurance.
Summarizing the evidence from the view most favorable to appellee, it appears that the insured, a man 69 years of age, was in a violent automobile collision on August 27, 1940. He sustained severe cuts and bruises about his body, and multiple fractures of his cervical spine. He was taken to a hospital, and remained there until September 19th, when he was removed to his daughter’s home under the continuing care of a physician. He was extremely nervous at all times following the accident, and his condition grew steadily worse until his death on October 30, 1940. Prior to the accident he was in good health, and had no bodily or organic ailments not usually found in a person of his age. In the opinion of several expert witnesses, the injuries suffered by insured as a result of the automobile collision were the cause of his death. This evidence was believed by the jury; it was sufficient to overcome the prima facie proof accorded by statute to the death certificate and to warrant y the jury in finding its verdict for the beneficiary.
The insurer was notified of the accident on August 31, 1940, and disability benefits were paid to Moore after examination of his claim by appellant’s representative. The insured was buried on November 2, 1940, and notice of death was transmitted to appellant on November 6, 1940. Nine days later the insurer inquired into the cause of death and the circumstances surrounding the last illness of the insured. Thereafter several demands were made for payment of death benefits under the policy; and on January 10, 1941, appellant responded by demanding leave to conduct an autopsy, which was refused.
The insurance contract admittedly conferred upon the insurer the right »to perform an autopsy under penalty of forfeiture of all rights thereunder, should that right be denied it; but in such cases the right is not enforceable where the request therefor is not made within a reasonable time.2 Whether or not the request is made within a reasonable time is for the court to decide if it is made either so promptly or so tardily after death that reasonable minds could not fairly differ on the question; otherwise, it is for the jury to decide. In this case sixty-five days elapsed between the date notice of death was received and the date the autopsy was requested, and fifty-six days intervened between the time the insurer inquired into the facts surrounding the death of the insured and the date that leave to conduct an autopsy was demanded. There is no evidence to explain the delay. In these circumstances we cannot say, as a matter of law, that the request was made within a reasonable time. The issue was submitted to the jury, and its finding that the request was not made within a reasonable time must be upheld.
The remaining assignments of error have been examined, and are without merit. We find no reversible error in the record, arid the judgment appealed from is Affirmed.
Sovereign Camp, Woodmen of the World v. Bowman, 40 Ga.App. 536, 150 S.E. 436.
General Accident Fire & Life Assurance Corp. v. Savage, 8 Cir., 35 F.2d 587; Standard Accident Ins. Co. v. Rossi, 8 Cir., 35 F.2d 667; Clay v. Ætna Life Ins. Co., D.C., 53 F.2d 689; Maryland Casualty Co. v. Harris, 3 Cir., 60 F.2d 810; Ocean Accident & Guarantee Corp. v. Schachner, 7 Cir., 70 F.2d 28; Howes v. United States F. & G. Co., 9 Cir., 73 F.2d 611; McCulloch v. Mutual Life Ins. Co., 4 Cir., 109 F.2d 866; Couch’s Cyclopedia of Ins. Law, Vol. 8, Sec. 1958, and cases cited under note 19. It may be that the contracts in these eases did not provide for a forfeiture if an autopsy was denied, but that is immaterial, because the eases hold that the right to an autopsy is lost by an unreasonable delay; and if the right is lost it is immaterial, what penalty otherwise might attach, or what remedy might be available to the insured if the right were still in existence. If the right is lost, of course no-remedy remains.