Summary
In Kusky v. Laderbush, 96 N.H. 286, 74 A.2d 546, 21 A.L.R. 2d 536, the following rules were determinative of the court's decision: "`(T)he quiet of the grave, the repose of the dead, are not lightly to be disturbed. Good and substantial reasons must be shown before disinterment is to be sanctioned.' * * * However, `the right to have a dead body remain unmolested is not an absolute one; it must yield where it conflicts with the public good or where the demands of justice require such subordination.
Summary of this case from Stastny v. TachovskyOpinion
No. 3955.
Decided July 6, 1950.
Where the form of procedure before the Superior Court was accepted by both parties without objection its propriety cannot be attacked before the Supreme Court. Where an autopsy is very material to the defense of an action for death in order to determine the nature of the deceased's injuries as well as the cause of death the Trial Court in the exercise of its sound discretion may order the autopsy, under proper safeguards, in the interest of justice, although other sources of evidence may be available.
MOTION for an order for an autopsy to be performed on the body of William S. Kusky. On May 29, 1949, while a passenger in an automobile operated by the defendant, Kusky received personal injuries and brought suit therefor by writ dated March 4, 1950. He died on April 22. On April 28 defendant filed the above motion reciting that plaintiff's attorneys claim that Kusky was disabled from the date of the accident to the date of his death; that such disability was due solely to said accident and that his death was due to and caused by the same accident. Defendant states further that he is informed and believes that Kusky died of cancer and not as a result of the accident in which he was involved; that permission to perform an autopsy was sought of and refused by Kusky's widow who is administratrix of his estate and a party plaintiff in the action. Defendant maintains that unless an autopsy is performed he will be deprived of information necessary to properly prepare and adequately defend the claims being presented on behalf of the plaintiff.
Upon consideration of the allegations set forth in the defendant's motion, the Court (Sullivan, J.) denied the motion and transferred defendant's exception thereto.
Other facts appear in the opinion.
Varney, Levy Winton, for the plaintiff, filed no brief.
Hughes Burns and Donald R. Bryant, for the defendant.
The Trial Court denied the motion after consideration of the allegations therein made by the defendant. This form of proceeding was accepted by both parties without objection and it is now too late for either of them to object to it. Vidal v. Errol, 86 N.H. 585, 586; Morrill v. Bank, 90 N.H. 358, 359.
The question before this court for decision is whether the Trial Court's finding could reasonably be made on the evidence before him. Wisutskie v. Malouin, 88 N.H. 242, 246; Romano v. Company, 95 N.H. 404, 406; Small v. Company, ante, 265.
If the interests of justice demanded it, the Trial Court had the authority in the exercise of a sound discretion to order an autopsy. State v. Wood, 127 Me. 197; Ullendorff v. Brown, 156 Fla. 655; Sexson v. Commonwealth, 239 Ky. 177; Silvia v. Helger, 67A.2d 27; 15 Am. Jur. 841; 25 C. J. S. 1019;8 Wig., Ev. (3d ed) 210. See also, Ingram v. Railroad, 89 N.H. 277, 279; Lefebvre v. Somersworth Co., 93 N.H. 354, 356; Krook v. Blomberg, 95 N.H. 170; Staargaard v. Company, 96 N.H. 17.
We agree that "the quiet of the grave, the repose of the dead, are not lightly to be disturbed. Good and substantial reasons must be shown before disinterment is to be sanctioned." Currier v. Woodlawn Cemetery, 300 N. Y. 162; Lavigne v. Wilkinson, 80 N.H. 221.
However, "the right to have a dead body remain unmolested is not an absolute one; it must yield where it conflicts with the public good or where the demands of justice require such subordination." Silvia v. Helger, supra, 28. The plaintiff in this case has brought an action against the defendant with an ad damnum of $25,000. He died about eleven months after the accident in which he was injured. His widow is claiming that his death was due to and caused by that accident, as well as his disability during the period between the accident and his decease. The defendant maintains that this autopsy is necessary to determine the nature of the deceased's injuries as well as the cause of his death, the defendant believing that plaintiff died of cancer.
It seems to us that the autopsy is very material to the defense of this action by the defendant. Ingram v. Railroad, supra. It may be vital. Lefebvre v. Somersworth Co., supra. The fact that he might have other sources of evidence on the subject would not prevent his being granted the relief sought. Reynolds v. Company, 71 N.H. 332, 339; Ingram v. Railroad, supra. We see no evidence in the record of this case which could reasonably justify a denial of defendant's motion for an autopsy under proper safeguards. See Twardosky v. Company, 95 N.H. 279, 285 (dissenting opinion); State v. Cote, 95 N.H. 108, 111.
Exception sustained.
All concurred.