(123 Md. 320) ERTY. Before a city can assess abutting property with benefits caused by the opening of a street, the grade of the street should be first established; since the cost of cutting or filling necessary to make the abutting land conform to the es tablished grade should be considered in deter mining the benefits. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 734-738, 744; Dec. Dig. § 278.*] 2. EMINENT DOMAIN (8§ 101*) DAMAGES CHANGE IN GRADE OF STREET. The rule that damages are not ordinarily recoverable for an injury to adjacent land caused by a lawful change in the grade of a public highway is confined to cases in which no part of the abutting property is taken for the pur[Ed. Note. For other cases, see Eminent Domain, Cent. Dig. §§ 269, 270; Dec. Dig. § 101.*] 3. MUNICIPAL CORPORATIONS (§ 513*)-PUBLIC IMPROVEMENTS-ASSESSMENTS INJUNCTION-JURISDICTION-ADEQUATE REMEDY AT pose. LAW. Since a property owner has an adequate remedy by appeal under Local Laws of Baltimore City, 179 (Baltimore City Code 1892, art. 48, § 10), providing for an appeal to the Baltimore city court by any person dissatisfied with an assessment of benefits, etc., he could not maintain a bill in equity to enjoin proceedings for the assessment of benefits on the ground that the assessment was made before the street grade was established. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. 88 1188-1193, 11951206; Dec. Dig. § 513.*] Appeal from Circuit Court No. 2 of more City; James P. Gorter, Judge. "To be officially reported." from which action of the commissioners an appeal has been taken by her to the Baltimore city court, where the case is now pending. The bill further alleges that in condemning said lands for the purposes aforesaid the grade of the street has not been established, and the city engineer has refused to establish such grade, although the appellee has requested him to do so, and has tendered him the costs thereof. The reason assigned by the engineer for his refusal to establish the grade being "that the proceedings of the commissioners for the opening of the Green Spring parkway have not advanced to the point where we can request the city surveyor to officially establish this grade," but suggested that the tentative street grade made by Joseph W. Shirley, chief engineer of the topographical survey, in compiling his preliminary plans for the parkway would, no doubt, be finally adopted without any material change as grade establishments, and that such grade would answer the purpose in ascertaining the quantity of excavation or fill to be made. The bill also alleges that: "Until the grade is established it is impossible that said appeal can be tried fairly and with justice either to your oratrix or the defendant, because one of the factors or elements in de termining either benefits or damages will be the necessary cost of cutting or filling her adjacent property abutting on said avenue so to be opened, and this cost cannot be estimated until said grade is established." has asked that the trial of the case on apThe bill further alleges that the plaintiff peal be postponed until the grade of the Balti-street be established, but the defendant has Bill by Jessie C. Johnson against the May or and City Council of Baltimore, a corporation. Decree for plaintiff, and defendants appeal. Reversed, and bill dismissed. Argued before BOYD, C. J., and BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and CONSTABLE, JJ. Robert F. Leach, Jr., of Baltimore (S. S. Field, City Sol., of Baltimore, on the brief), for appellants. Ward B. Coe, of Baltimore, for appellee. PATTISON, J. The appellee in this case filed her bill in circuit court No. 2 of Baltimore city against the appellant, alleging therein that she is the owner of a lot of land on the southwest side of Green Spring avenue, in the city of Baltimore, and that the city, in extending Park Hill avenue from Park Heights avenue to Green Spring avenue, has condemned a strip of said land 1,000 feet in length and 50 feet in width, for which the appellee has been awarded by the commissioners for opening streets the sum of $4,935, and has been assessed with benefits to her abutting land a like sum of $4,935; refused to consent to such postponement, and the case has been set for trial and will soon be reached in regular course upon the docket. The prayer of the bill asks that the defendant be "enjoined from proceeding with the trial and hearing of the appeal in Baltimore city court until the establishment of the grade of Park Hill avenue so condemned and to be opened." The defendants demurred to the bill, and, their demurrer being overruled, the appeal is taken from the order overruling such de murrer. [1] The main question presented by this appeal is whether the grade of the street opened through the lands of the appellee should be first established by the city before it be permitted to assess the appellee with benefits to her adjacent lands, caused by the opening of said street. It was said by Judge Boyd in the case of Mayor and City Council of Baltimore v. Smith, 80 Md. 470, 31 Atl. 425: "The evidence shows that a number of the lots of the company which will front on the proposed street, and have been assessed for benefits, were below the established grade of the street. The company offered to prove the amount of filling necessary to bring them to that grade, to fit them for use for building pur- | efits, if any, that the opening of such street poses. The city objected, but the court overruled the objection, and permitted the company to prove the estimated amount of filling necessary in each of the lots. In such cases jurors are entitled to have before them any facts that will aid them in reaching proper conclusions. The opening of the street having been determined to be a direct benefit to these lots, the next inquiry was how much will they be benefited. Different modes may be adopted for determining that question. A lot which would be left eight feet below the grade of the street after it is opened would not be benefited as much as it would be if on the level of the proposed street. Hence, in ascertaining the amount of benefits, testimony tending to show the cost of filling the lots to the level of the established grade will be relevant. The jury was authorized by the ordinance to view the premises, and did so in this case. When they went upon the property the ground to be included upon the bed of the street might appear to be level, or nearly so with that adjoining it on either side, and hence, in assessing benefits, they might have been misled, unless they were informed how much filling would be required to bring the adjoining property to the level of the established grade and what the cost would be. If a lot was worth $1,000 before the opening of the street and would be worth $2.000 after it was opened, without any work being done on it, the benefit to it would manifestly be $1,000; but, if it would cost $500 to bring it to the grade of the street, so as to give it the value of $2,000, it is equally clear it would really only be benefited $500." And the court there held that the evidence objected to by the city was properly admitted by the court below. estimate the necessary cost of placing such or highway will be to the abutting lands may abutting lands in a condition to receive the advantages of the street or highway as opened and graded; and the grade so established should be the one, so far as it can then be determined after a proper consideration of the rights and interests of the adjacent landowners, that for all times will best subserve the public interest and convenience. Not to establish a grade at the time when the street is opened, but at such time to assess the benefits without regard to the costs and expenses to which the adjacent landowners may be subjected in cutting or filling their lands so as to enable them to receive the advantages of the road so opened, would, we think, be unfair and inequitable to them. The grade of a street is so materially involved in ascertaining the amount of benefits to be assessed against the abutting lands, that it is right and proper, in our opinion, that a permanent grade, and not a tentative one, such as is here referred to by the city engineer, should be established before the city should be permitted to assess benefits to abutting lands, caused by the opening of such street or highway. [3] But this appeal presents the further question whether the court of equity had jurisdiction to grant the relief sought in this case. In cases like the one before us section 179 [2] The rule established by the decisions of this court that damages are not ordinarily recoverable for any injury to adjacent land caused by a lawful change in the grade of of the Local Laws of Baltimore City (section a public highway (Green v. City & Subur 10, art. 48, of the Baltimore City Code of ban Ry. Co., 78 Md. 294, 28 Atl. 626, 44 Am. 1892) provides for an appeal by "any perSt. Rep. 288; Offutt v. Montgomery County, son or persons or corporation who may be 94 Md. 115, 50 Atl. 419; Cumberland v. Wil- dissatisfied with the assessment of damages lison, 50 Md. 138, 33 Am. Rep. 304) is conor benefits," etc,, by petition in writing to the fined to cases in which no part of the abut- Baltimore city court, and that court is given ting property is taken for the purpose (Balti-"full power to hear and fully examine the more v. Garrett, 120 Md. 608, 87 Atl. 1057), subject and decide upon said appeal." and in cases like the one before us, where the grade of the street is established for the first time when the street is opened, the cost and expense of making the abutting land conform to the use of the street should be considered in determining the extent that such abutting lands are benefited by the opening of the street. In this case the benefits to the appellee's abutting land were assessed at $4,935. The grade of the street not being established at the time, the estimate of benefits was made by the commissioners for opening streets, the amount of cost or expense of cutting or filling necessary to make the abutting land conform to an established grade of the street was not considered by them, and their estimate was made without regard to such cost and expense. When a public street or highway is to be opened, and land is to be condemned for the bed of the street or highway, it is but fair and equitable that the grade of such street or highway should first be established, in order that those who are to determine the ben The appellee had the right to have her appeal heard by the Baltimore city court, to which she appealed, and it was within the jurisdiction of that court to hear and determine all questions connected with those proceedings in which she was interested (Baltimore v. Coates, 85 Md. 535, 37 Atl. 18), including the question here presented-that is, whether or not the grade of the street opened through the lands of the appellee should be first established by the city before it be permitted to assess the appellee with benefits to her adjacent lands, caused by the opening of said street; and from the action of that court in ruling upon this question a further appeal will lie to this court. The appellee had her adequate remedy in the Baltimore city court, or in this court on appeal from its action, and thus the equity court was without jurisdiction to grant the relief sought. We must therefore reverse the order of the court below. Order reversed, and bill dismissed, with costs to the appellant. (123 Md. 301) PAINTER et al. v. UNITED STATES FI- 1914.) April 17, 1. INSURANCE (§ 549*)-INSPECTION OF DEAD BODY. Insured, whose life was covered by life and accident policies, was seized with a fit of vomiting on a steamer and fell into a river where death ensued. Upon recovery of the body, his vital organs were removed and sent to a medical expert for examination to ascertain the cause of death. Complainant, who had insured deceased against death resulting directly from bodily injuries and sustained solely through accidental means, was denied the right to participate in the examination, although repeated demands were made for that right and for portions of the vitals. Held that, though complainant did not pay, as was agreed, part of the cost of the examination, from which it was excluded, its right to an examination of the vital organs pursuant to the provision of a policy of April 1913, it issued a policy to Edward O. Painter of Jacksonville, Fla., providing, among other things, that it would pay to the family of the assured the sum of $20,000 in the event of his death "resulting directly and exclusively of all other causes from bodily injuries sustained during the life of the policy solely through accidental means (excluding suicide, sane or insane, or any attempt threat, sane or insane)." That on the 22d day of May, 1913, the said Painter died, it being claimed that he fell from a ferry boat near the city of Jacksonville and was drowned. Whether death was the result of the fall, or whether he was drowned, or whether death was the result of natural causes or other cause, was unknown to the complainant, but was being carefully investigated. That shortly after the death of said Painter portions of his brain, lungs, stomach, liver, kidneys, and other organs were taken from his body and shipped to Baltimore for the purpose of having an analysis, made thereof. That in pursuance of the clause in A person may dispose of his body by will; said policy providing as follows, "The combut, in case he makes no disposal, the surviving husband or wife or next of kin have a quasi-pany shall in case of injury or disability, property right in the body which allows them have the right and opportunity to examine to decide who shall have its custody in preparing it for burial. was not lost. [Ed. Note.-For other cases, see Insurance, Cent. Dig. § 1356; Dec. Dig. § 549.*] 2. DEAD BODIES (§ 1*) RIGHT TO DEAD BODIES. [Ed. Note.-For other cases, see Dead Bodies, Cent. Dig. §§ 1, 2; Dec. Dig. § 1.*] 3. INSURANCE (§ 549*)-AUTOPSY-RIGHT TO MAKE. An accident policy provided that the insurer should have the right to examine the person of the insured and to make an autopsy. After insured's death, his vital organs were removed from the body, which was buried. Held, that the heirs and next of kin of the insured could not deny complainant the right to examine the vitals, which the contract of insurance accorded to complainant. the person of the assured or beneficiary, when and as often as it requires, and shall also have the right and opportunity to make an autopsy in case of death," the complainant demanded an opportunity to make an autopsy, but said opportunity had been refused it. That an examination of said organs was made by the said Charles Glasor, a chemist, and by a Dr. McCleary, a pathologist, acting under the instructions of the said Glasor, and that a report of said examination had been forwarded to the coroner of Duvall county, Fla. That the complainant claims, under the said provision of the policy, the right to have independent examination made by a chemist and pathologist. It is further alleged that the family of the deceased or their representatives have demandanty Company, in which Martha S. Painter it is charged that, if the organs are allowed ed the organs from the said Dr. Glasor, and [Ed. Note.-For other cases, see Insurance, "To be officially reported." Bill by the United States Fidelity & Guar and another intervened. From a decree for complainant, defendants appeal. Affirmed. Argued before BOYD, C. J., and BRISCOE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and CONSTABLE, JJ. Arthur L. Jackson, of Baltimore, for apappellants. Randolph Barton, Jr., and J. Kemp Bartlett, both of Baltimore (Barton, Wilmer & Stewart and Bartlett, Poe, Claggett & Bland, all of Baltimore, on the brief), for appellee. to pass out of the possession of the said Glasor and into the possession of the representatives of the family, the ability of the complainant, and all the other insurance companies carrying insurance on the life of the assured, amounting to more than $1,000,000, will be interfered with, and the question of the condition of the assured at the time of his death may be impossible to determine. The relief prayed for was an injunction restraining the defendant Glasor from parting with the possession of the orCONSTABLE, J. The appellee, a corpo- gans then in his possession, subject to the ration of the state of Maryland, engaged in further order of the court. The court grantthe general surety and casualty business, ed the relief prayed, and two days thereafter filed a bill on its own behalf and on behalf the appellee filed in the cause a petition setof all others similarly interested, against ting out just what portion of the organs of the appellant Charles Glasor, alleging, in the deceased Dr. Glasor admitted having in substance, as follows: That on the 21st day his possession, and alleging that Dr. Glasor had informed it that, shortly before the granting of the injunction, he had turned over to representatives of the family a portion of the remains previously in his possession. It is further alleged that from the attitude of the representatives of the family it was impossible to reach an agreement as to a further examination. Therefore the prayer was that a receiver might be appointed to take charge of the organs then in possession of Charles Glasor, and that said receiver be authorized and directed to make a complete chemical and pathological examination under the direction of the court. Thereafter petitions were filed by the widow and only child and daughter of the deceased asking to intervene as defendants, the former because as widow she was entitled to the custody of the organs and was also the beneficiary under certain of the policies upon the life of her husband; the latter because she was the beneficiary named in the policy issued by the complainant. The court granted the prayers, and Martha S. Painter, widow, and Okle C. Painter, daughter, were made defendants. Charles Glasor filed an answer denying all objection to the relief sought, but Martha S. and Okle C. Painter each filed demurrers to the bill and petition. The court, however, overruled the demurrers and answers were filed by each of them. The testimony taken is so voluminous that it is utterly impossible, in this opinion, to give any more than the result we have reached from a careful reading of it as contained in the record. Dr. and Glasor agreed to have this made by Dr. Standish McCleary. In the meantime officials of the complainant had been notified, by their representatives in Florida, that the organs had been shipped to Baltimore. Carroll, a representative of the complainant, finally succeeded in locating the whereabouts of the organs and received permission from Dr. Glasor to be present at the chemical examination to be made by him, but upon demanding from Drs. Perry and Boyd the same privilege, under the right given by the policy, he was denied the right. The representatives of the company made every effort to be present at the examinations but were repeatedly refused, but were offered by the family physicians and their attorney portions of the different organs to make a separate examination therefrom, but this offer was refused, on the ground that a complete examination could not be made from parts only. Further Drs. Glasor and McCleary both testified that as they were working under the control of the coroner they would not have consented to give up any portion of the organs, since that would have interfered with their making a proper examination. The chemical examination was then made by Dr. Glasor and the pathological by Dr. McCleary. It is not necessary to go into detail as to the methods of these examinations, except to say that Dr. Glasor was of the opinion that he had found antimony, a poison, and in fact had written his report to that effect, but later upon further tests being made was of the opinion that the object found was bismuth, a harmless drug, instead. The examination made by Dr. Glasor, so far as it went, seems to have been thorough, but that it was incomplete is evidenced by the testimony given by him. "Q. Dr. Glasor, it is a fact, is it not, that you stated to Messrs. Barton and Stewart that your examination was not complete and thorough, and that it should go further; do you remember saying that? A. Yes; I said it in the sense that I simply obeyed orders. Q. That order to examine the stomach. It was not left is, orders from whom? A. Perry and Boyd, the to my judgment how far I should go." Edward O. Painter, a business man of Jacksonville, Fla., while crossing the St. John's river on a ferryboat, was seized with a violent coughing and vomiting attack. Going to the side of the boat, presumably to avoid vomiting on the deck of the boat, he fell to the water and was not recovered until a few hours later, when his dead body was taken to an undertaker's establishment. At its arrival there it was met by Drs. Perry and Boyd, family physicians of the deceased, who were later joined by Dr. Upchurch, representing the coroner of the county. The body was opened and certain organs were forwarded to Dr. Simon of Baltimore for an analysis. Dr. Simon being out of Baltimore, the organs were turned over to Dr. Charles Glasor. Drs. Boyd and Perry immediately after the shipment of the organs took train for Baltimore, and upon their arrival seemed to dominate the situation. At the beginning There was considerable testimony as to there seemed to be a conflict as to who was the action of the representatives of the comin control-whether the examination was un-plainant in Florida as to its bearing upon der the authority and control of the coroner the question of waiver; but we are of the of Duvall county or of the representatives of opinion that, so far as the objects of this the family. Dr. Glasor finally, after fre- cause are concerned, nothing was done there quent telegraphic communications from the to affect the right here demanded. The cost coroner, decided in favor of the authority of of the Baltimore examination was borne by the coroner. Afterwards it was determined the family and the life insurance companies to have a pathological as well as a chemical-$2,000 each. There was the attempt to examination made, and Drs. Perry, Boyd, show that the complainant had agreed to On May 31st, the attorney for the family wrote Dr. Carroll that he withdrew all objections to a representative of the complainant being present at the pathological examination to be made by Dr. McCleary. Dr. Carroll testified that he had no recollection of having seen this letter until after his return from Jacksonville on June 20th. However, the opportunity was not accepted. share in this expense, but the weight of the evidence was against this. There was also proof of the large amount of both life and accident insurance carried by the deceased, and its comparatively recent issuance. From a reading of the testimony the impression is very strong, indeed, that although Dr. Glasor finally acknowledged the control of the coroner, nevertheless the family physicians and attorney were the dominating forces throughout, and the complainant's representatives were treated as though they had no interest or rights in the matter. The lower court passed an order appointing Dr. George H. Whipple of Baltimore receiver to take charge of the organs then in custody of the clerk of the court, and directing him to make a full and complete chemical and pathological examination of such organs or remains of organs or to such partial examination as the complainant might require. From that decree this appeal was taken by the widow and daughter. of the like provision of the Constitution of Maryland. Some of the American courts have followed the old English rule that one cannot dispose of his body after death, but the great weight of authority in this coun try is that one can dispose of his body by will. See cases cited in 40 Cyc. 1050. The courts hold that the surviving husband or wife or next of kin have a quasi-property right in the body in the absence of testamentary disposition. The right is not a property right in the general meaning of property right, but is extended for the purpose of determining who shall have the custody of the body in preparing it for burial. And courts of equity will protect those having this right from unreasonable disturbance. But courts have never hesitated to have a body exhumed where the application under the particular circumstances appeared reasonable and was for the purpose of eliciting the truth in the promotion of justice. Gray v. State, 55 Tex. Cr. App. 90, 114 S. W. 635, 22 L. R. A. (N. S.) 513; Grangers L. Ins. Co. v. Brown, 57 Miss. 308, 34 Am. Rep. 446; 398. There are several reported cases where the courts have refused such an examination while recognizing the right but deeming the application to have been made at too remote a period of time with no attendant circumstances to explain the delay. [1] Two of the main contentions relied upon by the appellants are those of laches and waiver upon the part of the appellee. | Mutual L. Ins. Co. v. Griesa (C. C.) 156 Fed. Necessarily, cases with facts similar to this are rare. This presents no question of the examination of a dead body, with all of its attendant harrowing incidents. The body was buried and no right pressed to exhume it soon after nor at any time. The appellee was not interested in the body, for it had learned, in its first information after the death, that the vital parts had been removed, and it thereupon turned its attention to them for any information it could gather as to the cause of death. It is not apparent what could have been done by it that was not done to exercise the right given by the positive terms of the policy. The record discloses amazing persistency upon the part of the representatives of the appellee in demanding from the unquestioned representatives of the appellants the privilege or right to be represented at the examination and were finally driven to file this bill to enforce their rights. It is inconceivable that it should be seriously contended there was any laches upon the company's part. We have above expressed our opinion on the question of waiver, but we can further say that, even if the company had agreed to bear a portion of the expense of the examination, the facts clearly show that it should not be bound by an examination made under the circumstances surrounding this one. [2, 3] The appellants made the contention, both in the demurrers and the answers, that the proposed examination would amount to a deprivation of their property without the process, within the meaning of the fourteenth amendment to the Constitution of the United States and also within the meaning In this particular case the bill was filed for the purpose of discovering and preserving evidence, and under virtue of an express agreement entered into by the assured with the insurer that an examination would be permitted. If this assured died as the result of any cause exclusive of accident, then this appellee is not liable for the amount of the policy. We are not concerned in the question of what was the cause of death, but only as to whether the appellee has the right under its contract to investigate so as to learn the truth so far as these organs will show. That these constitutional defenses were not allowed by the lower court we have no doubt was correct. We are of the opinion that under its contract the appellee had the right to make an examination of the parts superior to any property right in any member of the family of the assured, and, when the demand was refused their representatives, it was the proper course to file a bill for discovery such as has been filed, and the relief granted was correct. We have examined carefully the several exceptions to testimony and do not deem it necessary to deal with them in detail, for, irrespective of the rulings, we have been unable to discover anything which prejudiced the appellants so as to compel us to reverse the decree rendered. Decree affirmed, with costs to the appellee. |