(dissenting).
The certificate sued on states that it and the Constitution and By-Laws of the Order, with the application, constitute the contract. The Constitution, in the article fixing the indemnities to be paid, states that “In case of death said Supreme Executive Committee may make request to have the remains examined or an autopsy made * * *. In case of burial the Supreme Executive Committee shall have the right to have the remains disinterred for the purpose of examining the body or performing the autopsy * * *. Any *561failure or refusal on the part of the beneficiary * * * or on the part of the custodian of the remains of the deceased to give permission for any one or all of the above requests within five days from the date of such request or requests, shall be deemed a forfeiture of all benefits and any and all rights of action or claims for injury or death alleged to have been caused by the accident.” The deceased was buried Nov. 2, 1940, but the insurer was not notified of the death till Nov. 6. Exhumation was requested by letter to the beneficiary, Mrs. Moore, on Jan. 8, following, and she on the advice of and through her counsel refused on the ground that an autopsy at such a late time was too distasteful to her feelings, and could not possibly disclose anything but bone structure, which would shed no light on the cause of death. It seems to me by the plain terms of the insurance contract she thereby forfeited her claim to the death benefit.
None of the cases specially cited in the majority opinion is like this one. In each the policy gave the insurer the right to have an autopsy but there was no agreement as to what the consequence of a refusal would be. This court in such a case, on full consideration, held that where there was no agreement for a forfeiture on refusal, only extreme circumstances could justify defeat of the insurance, and that ordinarily the right to have an autopsy ought to be enforced only by an application to the Court to order it — that is by a specific performance rather than by a forfeiture. Travellers Ins. Co. v. Welch, 5 Cir., 82 F.2d 799. If a fair opportunity is afforded to exercise the right before burial, I can see good reason to hold it waived by not asserting it before burial. I can also see good reason for holding it waived by waiting so long after burial that the truth could probably not be shown by an autopsy. 1 see no authority in judge or jury to put a time limit on the right otherwise.
In the present case Moore solemnly agreed with his fellow members of the Order that his beneficiary should accede to a request for autopsy, even after burial, and if she refused, should forfeit the death benefit. She made her choice. She cannot here assert a waiver by the Order in that it suffered the burial to proceed without requesting an autopsy, for the Order did not know of the burial until four days afterwards. The delay after burial occasioned no detriment, for disinterment after sixty days would be no more shocking to Mrs. Moore than it would have been after five days. The only escape I see for her is to prove that after sixty days the autopsy would show nothing. She offered no evidence about that, but in her letter of refusal admitted that “bone structure” would still be disclosed. That was quite important. The physician who attended Moore at death was of opinion that a heart and kidney disease which Moore had had for some years caused his death, and he so stated in his death certificate. A bone expert who X-rayed the cervical vertebrae after the automobile accident, but did not treat Moore for some weeks before death, thought the cracked vertebrae he found might have collapsed and caused blood effusions and nerve lesions which stopped the heart and caused the death. Another physician, who never saw the patient at all, on a hypothetical question suggested that the shock of the accident two months previous caused the death. If the diseases either caused or contributed to the death, there was no liability. If the broken vertebrae collapsed, the death was the result of the accident alone. An autopsy months after burial would disclose whether the vertebrae did collapse or not, as the expert witness testified, and as Mrs. Moore’s letter of refusal admitted. The fact is crucial. I do not think she showed a sufficient reason for her refusal, and has relinquished her right to this death benefit.