Mutual Benefit Health & Accident Ass'n v. Hickman

Felton, Chief Judge,

concurring specially. I concur in the judgment but I cannot concur in all the reasons given for certain rulings in the majority opinion.

*366As to the refusal by the plaintiff to consent to an autopsy on her husband, in my opinion where, as here, there is no opportunity to request an autopsy before burial, the only thing which can determine whether the time within which the request was made was a reasonable time is the question of how much light a delayed autopsy would throw upon the cause of death. I do not think that the wounding of the feelings or sensibilities of the family would cut any figure in the determination of what was a reasonable time because the feelings and sensibilities of the family would be wounded, most likely, regardless of when the autopsy occurred. I agree with Judge Sibley’s dissent in the Moore case, supra, under the peculiar facts of that case. Where, as in this case, the insurance company waited six months to request an autopsy, before the rights of the beneficiary are forfeited for refusal of such request, it is incumbent on the insurance company to show that the delayed autopsy would have thrown a considerable degree of light on the cause of death, and I do not think that a mere showing that a delayed autopsy would have been of “some” value in ascertaining the cause of death is sufficient to justify a forfeiture of the policy rights. In the Moore qase the damage was to bones. In this case the damage allegedly was to more fragile parts of the body and it is very questionable whether an autopsy six months after burial would reveal much information as to the cause of death. In addition, I do not agree that the insurance company waived its right to demand an autopsy by a denial of liability after proof of loss, and I do not think that cases cited in the majority opinion are authority for the fact that the right to demand an autopsy was waived.

The court charged the juiy as follows: “Gentlemen of the jury, the proximate cause of an injury is such an act that a person of ordinary caution or prudence would have foreseen that some injury might result therefrom but not necessarily the one that did result therefrom.” In my opinion the charge is error as a definition of proximate cause. The definition is a definition of negligence, but I do not believe that the jury was confused or misled by this charge under the facts and circumstances and in view of the remainder of the charge.