(concurring).
I concur with the majority under the facts and circumstances of this case. Here we have a situation where it is undisputed that the defendant acquired actual knowledge of the death of the insured within 48 hours after its occurrence. The evidence shows that on the day before the funeral, while the body of decedent was awaiting burial at the funeral parlors, the claim manager for defendant’s accident and health department notified a brother of decedent that the company desired an autopsy and suggested that it be held before interment. He was referred by decedent’s brother to an attorney who informed him after some discussion that an autopsy would not be permitted, whereupon the attorney was told that the claim would not be accepted without an autopsy. The evidence also indicates that the defendant’s claim manager told the attorney that the company intended to exhume the body in order to have an autopsy.
The statement of insurer’s claim manager that insurer would insist *335on exercising its right to have an autopsy and would not make payment on the policy prior to its being performed certainly did not constitute a denial of liability. Rather, it was notice of insurer’s position that the question of its liability would be held in abeyance until the autopsy disclosed whether insured’s death was due to causes covered by the policy. At no time did it foreclose the likelihood that, if an autopsy revealed that such death was accidental, payment on the policy would then be made. At no time did it indicate that the consent of the beneficiaries was an essential prerequisite of such autopsy, or that it would withhold action therein until such consent had been obtained. Clearly, the beneficiaries were justified in awaiting word from the insurer with respect to all such matters.1
It is well established that an insurer may waive standard or statutory provisions limiting the time within which an action must be commenced. Where the company tells the insured or the beneficiaries that it will pay the claim, this tolls the period.2 Where the company must, under the policy, decide whether or not to pay the claim before suit can be brought, this tolls the period.3 We have also held that where it was the duty of the insurer’s agent to make proof of death on behalf of the insured, his failure to do so prevented the statute of limitations from running.4
It is my opinion that where an insurance company does something which might lead the insured or beneficiary to believe that the matter is in the hands of the company for the time being, as when the com*336pany indicates it is investigating the claim, conducting an appraisal, or having an autopsy performed, a jury question is presented as to whether the period of limitations for commencing suit should be tolled.
In Terpeluk v. Insurance Co. of North America, 189 Pa. Super. 259, 266, 150 A. (2d) 558, 561, the court stated:
. “* * * It is our view that, if the conduct of an insurer after a loss misleads its insured for a period of time, as the conduct of this appellant did according to the finding of the jury, then the limitation of the insured’s right to bring suit is suspended during that period of time and begins to run on the date of denial of liability.”
See, also, Millan v. St. Paul Fire & Marine Ins. Co. (Pa.) 39 Wash. Co. R. 200.
In Peeples v. Western Fire Ins. Co. 96 Ga. App. 39, 99 S. E. (2d) 349, 350, it was held:
“An agreement to have an appraisal made by arbiters will toll the period of limitation stated in the policy, and the period of limitation will not run while such agreement is pending.”
This conclusion was repeated in another case arising out of the same controversy. Western Fire Ins. Co. v. Peeples, 98 Ga. App. 365, 106 S. E. (2d) 91.
The reason for this rule is stated more fully in Killips v. Putnam Fire Ins. Co. 28 Wis. 472, 482, 9 Am. R. 506, 512, as follows:
“It does not seem to require much argument to demonstrate that if, by any act or omission of the responsible officers and agents of the defendant, the plaintiff should be induced to suspend action in the premises, for a given time, such time should not be deemed a part of the twelve months to which his right of action is limited by the original contract. * * * Cases may readily be supposed, where, by delays in passing upon the sufficiency of proofs of loss, in investigating losses, or in replying to communications — by general objections to proofs, refusing to specify wherein they are defective, and thus compelling the claimant to grope his way in the dark, and find out as best he may wherein he has come short of fulfilling the requirements of his policy — and by many other means, the agents and officers *337of an insurance company might, without committing any act which the law would adjudge fraudulent, so embarrass the claimant that he would be entirely unable to make satisfactory proofs of his loss within the time which his contract gives him for that purpose, and yet be entirely free from any laches whatever. The idea that the remedy on the policy may be lost under such circumstances, is not to be entertained for a moment. The plainest principles of justice demand that the time thus lost by the plaintiff without any fault on his part, but through the fault of the defendant, should be added to the time within which they contracted in the first instance that the action should be commenced, and the plaintiff be not barred of his remedy on the policy until such additional time has expired.”
Even the dissent here, as well as the lower court, deplored the action of the insurance company in denying liability on a legal technicality. In the interests of justice, this abuse should not be allowed to go un-rectified. Under the facts and circumstances here, I believe that the case should be remanded to allow a jury to pass on the question of whether the beneficiaries were misled to their detriment.
The testimony establishing this factual situation is undisputed. Any inconsistency between it and the complaint would justify amendment of the latter under Rule 15.02 of Rules of Civil Procedure, but certainly would not alter or modify the inescapable conclusion resulting therefrom that insurer at no time denied its liability under the policy.
Gilbert v. Globe & Rutgers Fire Ins. Co. 91 Ore. 59, 66, 174 P. 1161, 178 P. 358, 3 A. L. R. 205 (on petition for rehearing); Stanley v. Sterling Mutual Life Ins. Co. 12 Ga. App. 475, 77 S. E. 664; 46 C. J. S., Insurance, § 1264.
Stewart v. National Council, 125 Minn. 512, 147 N. W. 651; Dechter v. National Council, 130 Minn. 329, 153 N. W. 742.
Kelly v. Ancient Order of Hibernians, 113 Minn. 355, 129 N. W. 846.