318 Mass. 425 | Mass. | 1945
The plaintiff, who was the husband of Margaret Gahn, deceased, brings an action of tort against a medical examiner for the county of Suffolk for allegedly performing an illegal autopsy on the body of Margaret Gahn. At the conclusion of the evidence the judge, subject to the plaintiff’s exception, granted the defendant’s motion for a directed verdict. The correctness of this ruling is the sole question presented.
The defendant’s motion was based “on the pleadings and the evidence.” One effect of the motion was to raise the question whether the allegations in the declaration, if proved, entitled the plaintiff to judgment. Murphy v. Russell, 202 Mass. 480, 481, and cases cited. Colby Haberdashers, Inc. v. Bradstreet Co. 267 Mass. 166, 170-171. The motion also had the usual effect of raising the question whether the evidence was sufficient to support the allegations of the declaration.
The declaration alleges, and the only evidence shows, that the autopsy was performed by the defendant on June 19, 1943. We take judicial notice that on that date the defendant was a medical examiner for the county of Suffolk. Weitzel v. Brown, 224 Mass. 190, 192. Opinion of the Justices, 240 Mass. 616, 618. See International Paper Co. v. Commonwealth, 232 Mass. 7, 15; Independent-Progressive Party v. Secretary of the Commonwealth, 266 Mass. 18, 21-22. From the testimony of the defendant, who was called as a witness by the plaintiff, it also appears that before proceeding he had obtained from the district attorney of Suffolk County the following document: “Commonwealth of Massachusetts Suffolk, ss. To Timothy Leary, M.D., Medical Examiner: In accordance with Section 6 of Chapter 38 of the General Laws, you are hereby authorized to ■make an autopsy of the dead body of Margaret Gahn. [Signed] William J/ Foley. District Attorney. Boston,
The provisions of G. L. (Ter. Ed.) c. 38, § 6, as amended, are in part: “Medical examiners shall make examination upon the view of the dead bodies of only such persons as are supposed to have died by violence. If a medical examiner has notice that there is within his county the body of such a person, he shall forthwith go to the place where the body lies and take charge of the same; and if, on view thereof and personal inquiry into the cause and manner of death, he considers a further examination necessary, he shall, upon written authorization of the district attorney, mayor or selectmen of the district, city or town where the body lies, make an autopsy in the presence of two or more discreet persons, whose attendance he may compel by subpoena. . . . Before making such autopsy he may call the attention of the witnesses to the appearance and position of the body. He shall then and there carefully record every fact and circumstance tending to show the condition of the body and the cause and manner of death, with the names and addresses of said witnesses, which record he shall subscribe.”
The proceedings thus prescribed in the case of dead bodies begin with a mandatory view by the medical examiner but only of the bodies of such “persons as are supposed to have died by violence.” This means “supposed” by anyone within the “notice” of the medical examiner, the legislative intent clearly being to ensure a view in every doubtful case. It would not be a supposition by the medical examiner himself except where he might happen to know of such a death.
The declaration was in two counts for the same cause of action. The first count 'alleged that “the defendant without authority and against the wishes of the plaintiff, but in violation and in disregard thereof, and trespassing upon the rights of the plaintiff as custodian of the body . . . did upon the deceased body of said wife, make ... a surgical operation or dissection.” As a general rule, the surviving spouse is properly the plaintiff in this kind of action. Larson v. Chase, 47 Minn. 307, 309. Streipe v. Liberty Mutual Life Ins. Co. 243 Ky. 15, 17-18. Thompson v. Pierce, 95 Neb. 692, 693. Simpkins v. Lumbermens Mutual Casualty Co. 200 S. C. 228, 237. See Durell v. Hayward, 9 Gray, 248;
The second count substantially repeated the allegations of the first count and contained the additional allegations that the defendant “having no reason to suppose that death came by violence” acted “without authority as required by law, but in violation and in disregard thereof.”
We are of the opinion that the plaintiff was not entitled to go to the jury on the second count. While the oral testimony, which came entirely from witnesses called by the plaintiff, could be disbelieved by the jury, except when a party testified against his own interest, such disbelief would not take the place of affirmative proof. Tallon v. Spellman, 302 Mass. 179, 183. Borysewicz v. Dineen, 302 Mass. 461, 464. O’Brien v. Harvard Restaurant & Liquor Co. Inc. 310 Mass. 491, 493. Perry v. Hanover, 314 Mass. 167, 170. “Every reasonable supposition is indulged in favor of the honesty of purpose of . . . public officers and the legality of their conduct.” Slack v. Inspector of Buildings of Wellesley, 262 Mass. 404, 407, and cases cited. “Public officers are presumed to act lawfully.” Comerford v. Meier, 302 Mass. 398, 403, and cases cited. In the absence of bad faith the determination of the medical examiner within his jurisdiction to make an authorized autopsy cannot be
There was no testimony from which it could be found that the defendant did not act in good faith. The plaintiff testified that on June 8, 1943, Margaret Gahn, who had been ill for about three weeks, was taken to the Boston City Hospital, where she died on June 19. Joe Lorusso testified that he was the father of Margaret Gahn and that following her death he had a conversation with the defendant, who said, “All the time you people drink wine, and she got inside some alcohol, the liver, and that is what the trouble is.” The only other witness was the defendant, who testified as follows: He was a physician and a medical examiner for Suffolk County. The case was referred to him “because the hospital was doubtful about what the situation was.” This was: on June 19 at 8:30 a.m. Margaret Gahn had died at 3:35 a.m., and the hospital sent the body to the Northern Mortuary, accompanied by a memorandum for the medical examiner which briefly summarized the hospital record regarding diagnoses, symptoms, past history, physical findings, laboratory findings, progress, and special examinations.. The clinical diagnoses contained in the memorandum were acute polyneuritis; cirrhosis of livery broncho-pneumania of unknown etiology, possible miliary tuberculosis; and probable intrauterine pregnancy at four months. The defendant requested permission of the district attorney to perform an autopsy, which was granted on that date in the form hereinbefore set forth. As a result of the autopsy: he found the causes of death were acute general miliary tuberculosis, fatty liver, and alcoholism. There was no cirrhosis of the liver, broncho-pneumonia, or intrauterine pregnancy. The abstract of the hospital record showed that she had suffered from peripheral neuritis with wrist drop, which indicated the possibility óf alcoholic, lead, bismuth, or arsenic poisoning. It was part of his duty to view the body, but he was unable to determine from the view alone whether there was poisoning, and in his opinion it was necessary to perform an autopsy to determine that, and in
What we have said disposes of the plaintiff’s contentions that the jury could find for the plaintiff by accepting or rejecting portions of the defendant’s testimony. They would not have been warranted in finding that, because there was in truth no poisoning or violence, there was nothing in any record or on the view of the body which would entitle the defendant to perform the autopsy. If the defendant’s testimony were rejected in whole or in part, there would still be no evidence that his action was in bad faith.
Exceptions overruled.