Winkler v. Maxwell
102 N.W. 418
Iowa
1905
Check Treatment
Weaver, J.—

Thе plaintiff alleges that her husband, George Winkler, died at a hospital in the city of Keokuk, and that immediately after his decease the defendants Hawkes & Ackley, with indecent haste, and without any authority therefor, removed the body to their undertaking rooms, ‍‌​‌​‌​‌‌‌‌​‌‌​‌​​​‌​​‌​​​‌‌‌‌​​​‌‌‌‌​‌‌​​‌‌‌​​​‌‍in said city, where the defendants T. J. Maxwell аnd John T. Maxwell, with the assistance of Hawkes & Ackley,' wrongfully mutilated said body and removed some of its parts, and that, by reason of such wrongful acts, plaintiff has been made to suffer much physical and mental anguish, for which she asks to recover damages. In answer1 to the plaintiff’s claim, the defendаnt John E. Maxwell alleges that he is a physician and surgeon, and attended upon Winkler in his last sickness, and that, after the death of Winkler, upon invitation- of One Dr. Coulter, who had also been physician to said deceased, and upon information that the widow consented thereto, he assisted sаid Coulter in a post mortem examination of the body for the purpose of determining, if possible, the cause of death; that said examinatiоn was performed in an orderly and scientific manner, and without any unnecessary mutilation or removal of the parts. In all other respects hе denies the allegations of the petition. The defendant T. J. Maxwell, pleading separately, sets up substan *476 tially the same answer as his codеfendant. By an amendment to their answers these defendants also pleaded an ordinance of the city of Keokuk which provides that, upon the ‍‌​‌​‌​‌‌‌‌​‌‌​‌​​​‌​​‌​​​‌‌‌‌​​​‌‌‌‌​‌‌​​‌‌‌​​​‌‍death of any person within its jurisdiction, the physician in attendance shall certify to the proper authority the cause of such death. Thе answer of the defendants Hawkes & Ack-ley is not disclosed in the abstract. There was a trial to a jury, resulting in a verdict and judgment for the defendants, from whiсh the plaintiff appeals.

1. Appeals I. The appeal is presented in a very unsatisfactory manner, and with little, if any, regard for the requirement of the rules of this court. Notwithstanding the statute, enacted upon demand of the bar, abolishing such practice, counsel’s brief is prefaced with 15 pagеs of assignments of error. Scarcely one of the assignments is so full or complete as to apprise us of the point sought to be made, without going to the abstract. In some instances we are referred to the page of the abstract, and in others the reference is blank; leaving the court to search through one hundred and twelve pages of printed record to find the ruling complained of. This is followed by a statement of points or errors relied upon, in which we are simply directed to the assignments aforesaid by number, ‍‌​‌​‌​‌‌‌‌​‌‌​‌​​​‌​​‌​​​‌‌‌‌​​​‌‌‌‌​‌‌​​‌‌‌​​​‌‍and these assignments, in turn, refer us to the abstract fоr ah explanation. The brief of authorities which is appended is little, if any, more direct or certain, and is made intelligible only by tracing its references to the statement of points, thence to. the assignments of error, and thence to the abstract. We cannot consent to try appeals in this manner. The rules of the court are neither complicated nor obscure, and we are disposed at all times to construе them liberally in favor of litigants who show substantial compliance with their terms. But we cannot permit them to be ignored. They have been framed and adopted to facilitate business and insure its prompt and orderly disposition — a result in which the profession and those whom it represents are vitally inter *477 ested. We indulge in these remarks not only because of the condition of the record before us, but because of a too frequent and increasing tendency of counsel bringing cases to this court to depart from the rules in respect to the preparation of briefs. If lawyеrs belong to that class of persons to whom, it-is proverbially said, a word is sufficient — a proposition which we are pleased to affirm — this hint will be аll that is needed to check the tendency referred to.

ü. admission oí error. ' II. The criticism made of the appellant’s brief does not apply with equal forсe to all the points argued, and we shall pass upon those which we consider to have been properly presented. A reversal is аsked because of the ruling of the court refusing to strike out the amendment to defendant’s answer pleading the ordinances of the city of Keokuk. We are disposed to think ‍‌​‌​‌​‌‌‌‌​‌‌​‌​​​‌​​‌​​​‌‌‌‌​​​‌‌‌‌​‌‌​​‌‌‌​​​‌‍that the motion should have been sustained, but we find from the record that the court instructed the jury that such ordinance gave ho authority to the physician to make a post mortem examination of the body, or to remove any part or portion of such body, and, in view of this instruction, we think that the error in permitting the amendment to stand was cured.

3' examination: consent. III. The court submitted to the jury the question whether the plaintiff consented tо the post mortem examination of the body of her-husband, and it is argued that there is no competent evidence upon which such consent сould be found. We think otherwise. Indeed, the plaintiff’s own testimony clearly shows that she did consent, and that the point of her subsequent objection was thаt the surgeons took away some of the parts* or organs of the body. It fully appears that she understood the purpose of the examinаtion was to ascertain the cause of her husband’s death, and that she consented to it for that purpose. That consent being given, we think it must be held to imply a permission to the surgeons to conduct such examination in the approved and usual manner practiced by their professiоn; and, if the removal of some of *478 the organs for microscopic examination was necessary or proper to effect the рurpose of the post mortem, then the defendants would not be guilty of an actionable wrong in so doing, unless such permission was expressly withheld at the time the consent to open the body was given. It is true that Mrs. Winkler claims she made it a condition of her consent that none of the parts should be taken away, but that question was submitted to the jury, which evidently found against her contention in this respect. Moreover, the condition that none of thе parts should be taken away did not necessarily prohibit the taking of such parts to the office of the surgeons for examination, if they were duly rеturned and ■ replaced for burial, ‍‌​‌​‌​‌‌‌‌​‌‌​‌​​​‌​​‌​​​‌‌‌‌​​​‌‌‌‌​‌‌​​‌‌‌​​​‌‍and this appears to have been done. The fact seems to be that the surgeons removed the heаrt and liver, in whole or in part, from the body, and took them from the undertaker’s room for further examination; and, upon hearing that the plaintiff objected thereto, the parts were at once returned and buried with the body. There is no indication that the surgeons acted otherwise than in entire good faith, and we believe their acts in the premises were fairly within the scope of the consent which plaintiff concedes she gave. But however this may be, this feature of the controversy was submitted to tire jury under instructions, which were very favorable to the plaintiff, and we are not dispоsed to interfere with the verdict.

For reasons stated in the first paragraph of this opinion, none of the other matters argued by counsel will be considered.

The judgment of the district court is affirmed.