(dissenting) — Not being persuaded of the soundness of the majority opinion, I respectfully dissent therefrom. We upheld the right to disinterment of J. Basil Tow, 243 Iowa 695, 53 N.W.2d 283. Although only a minimum majority of this court — five—joined in the opinion, it must be recognized as the settled law of the state, so far as it applies.
*1036I. But there is a different and, it seems to me, a vital issue present in the case at bar which was not decided in the Tow case. The appellant here contends that the application for disinterment and for an autopsy was not seasonably or reasonably made. Doctor Jarvis was injured on January 20; he died on January 24, and was buried on January 28. Before he died the Des Moines office of the Mutual Benefit Health & Accident Association of Omaha, Nebraska, the applicant for disinterment herein, was advised of ■ the accident, and its Oskaloosa agent was notified on January 25. Proof of loss, with claim for accidental death benefits and showing the primary cause of death as a cerebral hemorrhage, was furnished the insurer on February 22. Its action in the federal court was commenced on June 16 nest, and this application for disinterment on July 8. These dates are important upon the question of the reasonableness and seasonableness of the application.
One of the ways in which the majority excuses the insurer for failing to make a prompt application for an autopsy is that “so far as shown this claim [appellant’s proof of loss given the company op February 22] is the first information the company had that death was caused by cerebral hemorrhage.” But the company did know of the death of Doctor Jarvis, and that it had occurred following an automobile accident. Surely it had an obligation to make its own investigation. Under similar circumstances the New York Court of Appeals said in Wehle v. United States Mutual Accident Association of the City of New York, 153 N. Y. 116, 122, 47 N.E. 35, 37, 60 Am. St. Rep. 598, 599:
“The effect of the giving of immediate notice was to impose upon the defendant the obligation immediately to make such investigation of the occurrence, as to enable it to decide whether to insist upon its right to an examination of the body in order to satisfy itself as to the cause of the death. It was not at liberty to wait indefinitely, or for any unreasonable length of time.”
It is true that it cannot be urged here that the insurer should have made its application before the burial. Our statute permits these applications only when there is a proceeding pending, and it can hardly be expected that litigation will develop before the *1037dead man is in bis .grave. But, even if tbe insurer-applicant bere bad been under no duty to investigate or to proceed until it bad been advised by some outside source that there was a question as to tbe cause of death, it bad such knowledge on February 22. It did not file its application for disinterment until July S', some four and one-half months later. Of course it may be contended that it could not file its application until there was a proceeding pending. Tbe “proceeding” which was pending when it finally filed its application was its own suit in federal court. This it might have filed at any time. Can it be fairly said that by withholding its suit to establish its nonliability on the policy, it thereby extended its time for filing a reasonable application for disinterment? The question is self-answering. Under the authorities it was the duty of the insurer to make timely application. A waiting period of over five months from the date of death and over four months from the time of knowledge of a possible defense seems to me to be beyond reason in this class of cases.
The majority says the cases which hold the right is lost by undue delay are not in point because the insurer was proceeding under the Iowa statute rather than claiming the right of autopsy under a provision of its policy. I am unable to distinguish the reasoning of these authorities, on principle. The disinterment of a dead body for the purpose of permitting someone who may be liable for the death to determine if a possible defense exists is abhorrent at any time. There is at least as much to be said for the insurer whose rights are based on contract as for him whose right to disinterment is statutory.
The majority says the statute fixes no time for filing the application, and we should not write one into it. It is said in Wehle v. United States Mutual Acc. Assn., supra, page 122 of 153 N.Y., page 37 of 47 N.E.: “The provision, though not, as before observed, of an unreasonable nature, nevertheless was one which, in the nature of things, called fob prompt action on the part of the insurer. Although no time is specified within which the permission to exatnine may he availed of, still, a due regard for the sentiments of the family and friends of the deceased, if1 not public policy, required as immediate an exercise of the option to examine as was possible.” (Italics ours.) This was quoted with *1038approval in McCulloch v. Mutual Life Ins. Co. of New York, 4 Cir., W. Va., 109 F.2d 866, 870.
If it is abhorrent to permit the insurer or other applicant who conceives that his lawsuit may be aided by a disinterment to wait for many months before filing his request, and if it is the law that such request should be made within a reasonable time, I do not see why it matters whether he bases his claim upon a provision in a policy of insurance or upon a statute. Section 141.25, set out in the majority opinion, concludes with this: “A proper showing shall be made in every case and due consideration shall be given to the public health, the dead, and the feelings of relatives and -friends.” The majority suggests that the feelings of the relatives and friends will perhaps be the same, no matter when the application is made or how long it is delayed. It may be conceded that no relatives, or friends, are apt to like the idea of a disinterment and a dissection of the body of a loved one, at any time; but the authorities above set forth, and many others, hold that it is particularly abhorrent when the application is long delayed.
Especially is this true when the reasons for the delay may be suspect. It is pleaded by the resister, Doctor Jarvis’s widow, that during the time that elapsed after his death and the date of filing of the application, negotiations for settlement were under way. It is alleged, and not denied, that the insurer offered the sum of $9000 in settlement of the claim under its policies, under which the beneficiary claimed $12,250. Quite evidently it was not until it had failed to effect a settlement at a substantial reduction from the face of the policies that it resorted to the disinterment statutes. As the majority says, the statutes do not fix any time within which the application should be made. Yet I do not think the legislature intended their use should be resorted to only after unnecessary delay and after efforts to secure a reduction in liability have failed. The construction put upon the statutes by the majority opens the door to their use by those claimed to be “liable for the death” as a club to force a favorable settlement. No one doubts the dislike of the family for the disinterment and cutting-up of the body of a loved one. It is, at best, a ghoulish proceeding-which should be tolerated only when it is resorted to promptly, when it is free from any taint of improper use for settlement purposes, and when the ends *1039of justice clearly demand it. I think a proper interpretation of our statutes and consideration of the authorities show that all of these elements should be required before an order of disinterment is made. The majority concedes the right may be lost by undue delay; I think such delay appears here.
II. Under the rule adopted in the Tow case we are not permitted to review the findings of fact made by the trial court, if there is any substantial evidence to support them. Yet I cannot refrain from commenting upon the evident disregard of that part of the statute which requires that “due consideration shall be given to * * * the dead, and the feelings of relatives and friends.” True, the trial court paid lip service to this “feeling of abhorrence”, but found that there was “an overpowering and overriding consideration.” This consideration was the claim of the applicant-insurer that an autopsy might be expected to show the cause of death.
It is not a case where the “feelings” of the parties, their elation at victory, their depression in defeat, their like or dislike of the outcome of the case, must be disregarded by the court. Ordinarily it is the duty of the court to put aside all consideration of these matters and to decide the ease according to the law and the evidence. But here “consideration of the feelings” of the family and friends of the dead is máde a part of the statute. It is the court’s duty to take them into account.
It is evident the court gave no substantial weight to the feelings of the family; they weighed not at all as against the need of the applicant to find some evidence bearing on the cause of death. I suggest that that part of the statute which requires due consideration be given to the dead and the feelings of relatives and friends is fully as important as the commercial aspects of the problem, and that only the strongest showing of necessity should “override” it.
III. If, however, as the majority opinion permits, the body of Doctor Jarvis is to be disinterred, I think the extent of the autopsy is still not strictly enough limited. The only evidence of a cause of death other than the accident is found in the death certificate which lists cerebral hemorrhage as the primary cause. Dr. R. F. Birge, the pathologist who was the chief witness for the company, was asked this question:
*1040“If an autopsy upon tbe cranial matter of Dr. Jarvis’s body would fail to reveal any pathological condition would further exploratory post-mortem techniques be recommended to find out the cause of death?” He answered:
“If the pathologist is asked to make an examination of the body to determine the cause of death it is best not to restrict the examination. He needs to have all of the facts, if he is to give an opinion as to the probable cause of death. In this case of Dr. Jarvis, suppose that no hemorrhage were found in the brain it would then be the task for a pathologist to look elsewhere if he were permitted by the order to do so to find out if there are other important conditions either related to the accident or unrelated to the accident might exist. Iic-art condition, an embolism to the pulmonary arteries, something of that sort.”
AVhat the doctor is asking here, and what the court gave him, is carte blanche to go through the entire body. The insurer claims there is some evidence, through the death certificate, that death was caused by a cerebral hemorrhage unrelated to the accident. There is no evidence of any other probable cause of death; that is, the showing so far as the record here goes is negative except for the accident and the brain hemorrhage as causes. In McCulloch v. Mutual Life Ins. Co. of New York, supra, page 869 of 109 F.2d, the court said: “* * * two conditions at least must concur to justify an autopsy after burial. * * * secondly, it must be reasonably certain that an examination of the body will reveal something bearing on the rights of the parties which could not otherwise be discovered.” Measured by this yardstick, there is nothing here which would justify an autopsy on the body of Doctor Jarvis other than on the brain. The applicant and its doctor do not contend that they have any evidence of any cause of death other than the cerebral hemorrhage, or that it is necessary to examine other parts of the body in searching therefor. As I read Doctor Birge’s testimony he wishes, if he can find nothing in the brain, to be given the right to hunt through and dissect other vital organs to see what a search there might disclose. There is no evidence to sustain such an extension of the autopsy. I would reverse.
Oliver, Mulroney and IIays, JJ., join in this dissent.