66 N.Y.S. 1056 | N.Y. App. Div. | 1900
There seems to have been evidence sufficient at the trial of this action to justify the jury in finding that the deceased (Alexander L. Ewing, Jr.) died from, the effects of morphine taken accidentally and without design, and not taken “ while the member was, or in consequence of his having been, under the influence of intoxicating drinks.” Aside from errors of law alleged to have been committed at the trial, the defendant urges that the proof shows that defendant did not have the notice stipulated for in the policy, “ immediate notice, * * * with full particulars .of the accidentior injury.” The evidence on this subject seems tobe undisputed. The deceased died June 23, 1897, at Scranton, Penn. He was buried at his home
The defendant also urges that it was not permitted to examine the body of deceased. The first application defendant made was on July 18, 1897, nearly a month after the burial. It is in proof that immediately after death an autopsy had been made in the public interest under the direction of the coroner at Scranton, Penn., and the stomach and other organs had been taken away, and that these were not replaced with the body. The application made J uly eighteenth was to this plaintiff, who declined to give any consent. Subsequently application was made to the widow of the deceased, who had the lawful custody of the buried body, and she positively refused, stating as reasons that one public examination had been made;, and that the organs affected were not there. The court submitted the question to the jury as to th§ reasonableness of this request for an examination by defendant.
The clause in the policy under which this right was claimed reads as follows: “ No claim shall be payable under this certificate unless any medical adviser of the association shall be allowed to examine the person of the member, in respect to any alleged injury or cause of death, then and so often as. may be neccessary or reasonably required on behalf of the association.”
The exceptions taken Dy defendant to the admission of testimony do not call for a reversal. I think the testimony was in every instance admissible. The exceptions to the' charge to the
The judgment should be affirmed, with costs.
All concurred, except Parker, P. J., dissenting; Merwin and. Smith, JJ., concurred in result.
Judgment affirmed, with costs.