67 Ind. App. 225 | Ind. Ct. App. | 1918
This is an appeal from the finding and award of the full Industrial Board. The board found the facts to be substantially as follows: On June 20, 1917, one John Bryant was in the employment of appellant at an average. weekly wage of $12.25. On said date he received a personal injury by accident arising out of and in the course of his employment, resfilting in his death on July 1, 1917. Appellant had actual knowledge of the accidental injury at the time it occurred, administered to him first-aid treatment at the time of the injury, furnished him an attending physician on Juñe 23, 1917, and filed a report of such injury with the board on June 29, 1917. Decedent left surviving him as his sole and only dependent appellee. That decedent’s body was embalmed on the evening of July 1, 1917, and on the afternoon of July 2,1917, appellant made a formal request of appellee for an autopsy upon the
The provision of the statute here'involved, reads: “The employer, or' the Industrial Board, shall have the right in any case of death to require an autopsy at the expense of the party requiring same.” §27 Workmen’s Compensation Act, Acts 1915 p. 392.
Appellant contends in effect that said provision confers upon employers an express mandatory right to require an autopsy in the event of the death of an employe which must be respected; that the death in and of itself vests such right, and when it is asserted by an employer it cannot be disregarded; that the board was without power in this case to make a final disposition until such autopsy was held.
It is further contended that: “The evidence discloses and is uncontradicted that the employer asserted the right of autopsy by making demand upon the next of kin, who, in law, had the custody and the legal right to dispose of the body of the deceased, one of whom was appellee, and this right upon such request and demand was absolutely and unequivocally .denied; that it had done .all that the law required it to do for the purpose of enforcing its right to an autopsy.” On the other hand appellee insists that the evidence does not show an absolute refusal and in any event appellant was not harmed thereby.
Appellant has raised a jurisdictional question,
The right to demand an autopsy was a right that could be waived, and in our judgment was waived under the facts of this case. As heretofore stated, the refusal of a claimant to consent to an autopsy carries no penalty. Nothing could be lost by appellee by her action. The only benefit to which appellant, could lay claim was the right to an autopsy. Its failure, therefore, to follow up its request in some manner must be construed as a waiver of such right.
There was a dispute in this case as to the cause of decedent’s death, and under the construction of the statute herein declared, appellant had the right, if properly exercised, to have an autopsy performed. Where, as here, the legislature has not provided the procedure for its enforcement, that adopted must be reasonable both as to the time and the occasion for its exercise.
Award affirmed.
Note. — Reported in 119 N. E. 24.