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(123 Md. 320)

from which action of the commissioners an MAYOR AND CITY COUNCIL OF BALTI- appeal has been taken by her to the BaltiMORE v. JOHNSON. (No. 32.)

more city court, where the case is now pend(Court of Appeals of Maryland. May 12, 1914.) ing. 1. MUNICIPAL CORPORATIONS ($ 278*) – As

The bill further alleges that in condemning SESSMENT OF BENEFITS-BENEFITS TO PROP- said lands for the purposes aforesaid the ERTY.

grade of the street has not been established, a with benefits caused by the opening of a street. and the city engineer has refused to estabthe grade of the street should be first establish- lish such grade, although the appellee has ed; since the cost of cutting or filling necessary requested him to do so, and has tendered him to make the abutting land conform to the ese the costs thereof. The reason assigned by tablished grade should be considered in deter the engineer for his refusal to establish the mining the benefits.

[Ed. Note.-For other cases, see Municipal grade being “that the proceedings of the Corporations, Cent. Dig. 88 734-738, 744; Dec. commissioners for the opening of the Green Dig. $ 278.*)

Spring parkway have not advanced to the 2. EMINENT DOMAIN ($ 101*) DAMAGES point where we can request the city surveyCHANGE IN GRADE OF STREET.

The rule that damages are not ordinarily or to officially establish this grade,” but sug. recoverable for an injury to adjacent land caus- gested that the tentative street grade made ed by a lawful change in the grade of a public by Joseph W. Shirley, chief engineer of the highway is confined to cases in which no part topographical survey, in compiling his preof the abutting property is taken for the pur- liminary plans for the parkway would, no pose.

[Ed. Note.-For other cases, see Eminent Do- doubt, be finally adopted without any matemain, Cent. Dig. 88 269, 270; Dec. Dig. & 101.*]rial change as grade establishments, and 3. MUNICIPAL CORPORATIONS ($ 513*)-PUB- that such grade would answer the purpose in

LIC IMPROVEMENTS-ASSESSMENTS—ÍNJUNC- ascertaining the quantity of excavation or fill

The bill also alleges that: Since a property owner has an adequate remedy by appeal under Local Laws of Bal "Until the grade is established it is impossible timore City, $ 179 (Baltimore City Code 1892, that said appeal can be tried fairly and with art. 48, 8 10), providing for an appeal to the justice either to your oratrix or the defendant, Baltimore city court by any person dissatis- because one of the factors or elements in de fied with an assessment of benefits, etc., he could termining either benefits or damages will be the not maintain a bill in equity to enjoin proceed necessary cost of cutting or filling her adjacent ings for the assessment of benefits on the ground property abutting on said avenue so to be openthat the assessment was made before the street ed, and this cost cannot be estimated until said grade was established.

grade is established.” [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. šs 1188-1193, 1195– has asked that the trial of the case on ap

The bill further alleges that the plaintiff 1206; Dec. Dig. 8 513.*]

peal be postponed until the grade of the Appeal from Circuit Court No. 2 of Balti- street be established, but the defendant has more' City; James P. Gorter, Judge.

refused to consent to such postponement, and “To be officially reported.”

the case has been set for trial and will soon Bill by Jessie C. Johnson against the May be reached in regular course upon the docket. or and City Council of Baltimore, a corpo

The prayer of the bill asks that the deration. Decree for plaintiff, and defendants fendant be “enjoined from proceeding with appeal. Reversed, and bill dismissed.

the trial and hearing of the appeal in BaltiArgued before BOYD, C. J., and BURKE, more city court until the establishment of THOMAS, PATTISON, URNER, STOCK- the grade of Park Hill avenue so condemned BRIDGE, and CONSTABLE, JJ.

and to be opened." Robert F. Leach, Jr., of Baltimore (S. S. The defendants demurred to the bill, and, Field, City Sol., of Baltimore, on the brief), their demurrer being overruled, the appeal is for appellants. Ward B. Coe, of Baltimore, taken from the order overruling such defor appellee.


[1] The main question presented by this PATTISON, J. The appellee in this case appeal is whether the grade of the street filed her bill in circuit court No. 2 of Balti-opened through the lands of the appellee more city against the appellant, alleging should be first established by the city before therein that she is the owner of a lot of land it be permitted to assess the appellee with on the southwest side of Green Spring ave- benefits to her adjacent lands, caused by the nue, in the city of Baltimore, and that the opening of said street. city, in extending Park Hill avenue from It was said by Judge Boyd in the case of Park Heights avenue to Green Spring ave- Mayor and City Council of Baltimore V. nue, has condemned a strip of said land 1,000 Smith, 80 Md. 470, 31 Atl. 425: feet in length and 50 feet in width, for which "The evidence shows that a number of the the appellee has been awarded by the com- lots of the company which will front on the promissioners for opening streets the sum of posed street, and have been assessed for bene$4,935, and has been assessed with benefits fits, were below the established grade of the

street. The company offered to prove the to her abutting land a like sum of $4,935; amount of filling necessary to bring them to *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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 over or highway will be to the abutting lands may ruled the objection, and permitted the company estimate the necessary cost of placing such to prove the estimated amount of filling necessary in each of the lots. In such cases jurors abutting lands in a condition to receive the are entitled to have before them any facts that advantages of the street or highway as openwill aid them in reaching proper conclusions. ed and graded; and the grade so established The opening of the street having been determined to be a direct benefit to these lots, the next should be the one, so far as it can then be inquiry was how much will they be benefited. determined after a proper consideration of Different modes may be adopted for determining the rights and interests of the adjacent landthat question. A lot which would be left eight feet below the grade of the street after it is owners, that for all times will best subserve opened would not be benefited as much as it the public interest and convenience. Not to would be if on the level of the proposed street. establish a grade at the time when the street Hence, in ascertaining the amount of benefits, is opened, but at such time to assess the bentestimony tending to show the cost of filling the lots to the level of the established grade will efits without regard to the costs and expensbe relevant. The jury was authorized by the es to which the adjacent landowners may be ordinance to view the premises, and did so in subjected in cutting or filling their lands so this case. When they went upon the property the ground to be included upon the bed of the as to enable them to receive the advantages street might appear to be level, or nearly so of the road so opened, would, we think, be with that adjoining it on either side, and hence, unfair and inequitable to them. The grade in assessing benefits, they might have been mis- of a street is so materially involved in asled, unless they were informed how much filling would be required to bring the adjoining prop-.certaining the amount of benefits to be aserty to the level of the established grade and sessed against the abutting lands, that it is what the cost would be. If a lot was worth $1,000 right and proper, in our opinion, that a perbefore the opening of the street and would be manent grade, and not a tentative one, such worth $2,000 after it was opened, without any work being done on it, the benefit to it would as is here referred to by the city engineer, manifestly be $1,000 ; but, if it would cost should be established before the city should $500 to bring it to the grade of the street, so as be permitted to assess benefits to abutting to give it the value of $2,000, it is equally clear lands, caused by the opening of such street it would really only be benefited $500."

And the court there held that the evidence or highway. objected to by the city was properly admit

[3] But this appeal presents the further ted by the court below.

question whether the court of equity had [2] The rule established by the decisions jurisdiction to grant the relief sought in this

case. of this court that damages are not ordinarily recoverable for any injury to adjacent land

In cases like the one before us section 179 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. 291, 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 con- or 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 appellee had the right to have her the grade of the street is established for the appeal heard by the Baltimore city court, to first time when the street is opened, the cost which she appealed, and it was within the and expense of making the abutting land con- jurisdiction of that court to hear and deterform to the use of the street should be con- mine áll questions connected with those prosidered in determining the extent that such ceedings in which she was interested (Baltiabutting lands are benefited by the opening more v. Coates, 85 Md. 535, 37 Atl. 18), inof the street.

cluding the question here presented—that is, In this case the benefits to the appellee's whether or not the grade of the street openabutting land were assessed at $4.933. The ed through the lands of the appellee should be grade of the street not being established at first established by the city before it be perthe time, the estimate of benefits was made mitted to assess the appellee with benefits by the commissioners for opening streets, the to her adjacent lands, caused by the opening amount of cost or expense of cutting or fill- of said street; and from the action of that ing necessary to make the abutting land con- court in ruling upon this question a further form to an established grade of the street appeal will lie to this court. The appellee was not considered by them, and their esti- had her adequate remedy in the Baltimore mate was made without regard to such cost city court, or in this court on appeal from and expense.

its action, and thus the equity court was When a public street or highway is to be without jurisdiction to grant the relief opened, and land is to be condemned for the sought. bed of the street or highway, it is but fair We must therefore reverse the order of the and equitable that the grade of such street court below. or highway should first be established, in or Order reversed, and bill dismissed, with der that those who are to determine the ben-I costs to the appellant.

(123 Md. 301)

of April 1913, it issued a policy to Edward PAINTER et al. v. UNITED STATES FI-0. Painter of Jacksonville, Fla., providing, DELITY & GUARANTY CO. (No. 6.)

among other things, that it would pay to the (Court of Appeals of Maryland. April 17, family of the assured the sum of $20,000 in 1914.)

the event of his death "resulting directly and 1. INSURANCE (8 549*)-INSPECTION OF DEAD exclusively of all other causes from bodily BODY.

Insured, whose life was covered by life and injuries sustained during the life of the accident policies, was seized with a fit of vomit- policy solely through accidental means (exing on a steamer and fell into a river where cluding suicide, sane or insane, or any atdeath ensued. Upon recovery of the body, his tempt threat, sane or insane).” That on the vital organs were removed and sent to a medical expert for examination to ascertain the 22d day of May, 1913, the said Painter died, cause of death. Complainant, who had insured it being claimed that he fell from a ferry deceased against death resulting directly from boat near the city of Jacksonville and was bodily injuries and sustained solely through ac- drowned. Whether death was the result of cidental means, was denied the right to participate in the examination, although repeated the fall, or whether he was drowned, or demands were made for that right and for por- whether death was the result of natural tions of the vitals. Held that, though complainant did not pay, as was agreed, part of the cost causes or other cause, was unknown to the of the examination, from which it was exclud complainant, but was being carefully investied, its right to an examination of the vital gated. That shortly after the death of said organs pursuant to the provision of a policy Painter portions of his brain, lungs, stomach, was not lost. [Ed. Note.-For other cases, see Insurance,

liver, kidneys, and other organs were taken Cent. Dig. $ 1356; Dec. Dig. $ 549.*]

from his body and shipped to Baltimore for 2. DEAD BODIES ($ 1*) RIGHT TO DEAD the purpose of having an analysis made BODIES.

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 prepar- the person of the assured or beneficiary, ing it for burial.

when and as often as it requires, and shall [Ed. Note.-For other cases, see Dead Bodies, also have the right and opportunity to make Cent. Dig. $$ 1, 2; Dec. Dig. § 1.*] 3. INSURANCE (8 549*)-AUTOPSY-RIGHT TO

an autopsy in case of death,” the complainMAKE.

ant demanded an opportunity to make an An accident policy provided that the in-autopsy, but said opportunity had been resurer should have the right to examine the per- fused it. That an examination of said

of After insured's death, his vital organs were re: organs was made by the said Charles Glasor, moved from the body, which was buried. Held, a chemist, and by a Dr. McCleary, a patholothat the heirs and next of kin of the insured gist, acting under the instructions of the ine the vitals, which the contract of insurance ination had been forwarded to the coroner of accorded to complainant.

[Ed. Note.-For other cases, see Insurance, Duvall county, bla. That the complainant Cent. Dig. $ 1356; Dec. Dig. $ 549.*]

claims, under the said provision of the policy, Appeal from Circuit Court of Baltimore the right to have independent examination City; Henry Duffy, Judge.

made by a chemist and pathologist. It is "To be officially reported."

further alleged that the family of the deBill by the United States Fidelity & Guar- ceased or their representatives have demandanty Company, in which Martha S. Paintered the organs from the said Dr. Glasor, and and another intervened. From a decree for

it is charged that, if the organs are allowed complainant, defendants appeal. Affirmed.

to pass out of the possession of the said Argued before BOYD, C. J., and BRISCOE, sentatives of the family, the ability of the

Glasor and into the possession of the repreTHOMAS, PATTISON, URNER, STOCK

complainant, and all the other insurance BRIDGE, and CONSTABLE, JJ.

companies carrying insurance on the life of Arthur L. Jackson, of Baltimore, for ap- the assured, amounting to more than $1,000,appellants. Randolph. Barton, Jr., and J. 000, will be interfered with, and the quesKemp Bartlett, both of Baltimore (Barton, tion of the condition of the assured at the Wilmer & Stewart and Bartlett, Poe, Clag-time of his death may be impossible to degett & Bland, all of Baltimore, on the brief), termine. The relief prayed for was an infor appellee.

junction 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

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

had informed it that, shortly before the and Glasor agreed to have this made by Dr. granting of the injunction, he had turned Standish McCleary. In the meantime offiover to representatives of the family a por- cials of the complainant had been notified, by tion of the remains previously in his posses- their representatives in Florida, that the orsion. It is further alleged that from the gans had been shipped to Baltimore. Dr. attitude of the representatives of the family Carroll, a representative of the complainant, it was impossible to reach an agreement as finally succeeded in locating the whereabouts to a further examination. Therefore the of the organs and received permission from prayer was that a receiver might be appoint- Dr. Glasor to be present at the chemical exed to take charge of the organs then in pos- | amination to be made by him, but upon desession of Charles Glasor, and that said re- manding from Drs. Perry and Boyd the same ceiver be authorized and directed to make privilege, under the right given by the policy, a complete chemical and pathological exami- he was denied the right. The representatives nation under the direction of the court. of the company made every effort to be presThereafter petitions were filed by the widow ent at the examinations but were repeatedly and only child and daughter of the deceased refused, but were offered by the family phyasking to intervene as defendants, the for. sicians and their attorney portions of the difmer because as widow she was entitled to the ferent organs to make a separate examinacustody of the organs and was also the bene- tion therefrom, but this offer was refused, ficiary under certain of the policies upon the on the ground that a complete examination life of her husband; the latter because she could not be made from parts only. Further was the beneficiary named in the policy is- Drs. Glasor and McCleary both testified that sued by the complainant. The court granted as they were working under the control of the prayers, and Martha S. Painter, widow, the coroner they would not have consented to and Okle C. Painter, daughter, were made give up any portion of the organs, since that defendants. Charles Glasor filed an answer would have interfered with their making a denying all objection to the relief sought, proper examination. The chemical examinabut Martha S. and Okle C, Painter each filed tion was then made by Dr. Glasor and the demurrers to the bill and petition. The pathological by Dr. McCleary. It is not neccourt, however, overruled the demurrers and essary to go into detail as to the methods of answers were filed by each of them.

these examinations, except to say that Dr. The testimony taken is so voluminous that Glasor was of the opinion that he had found it is utterly impossible, in this opinion, to antimony, a poison, and in fact had written give any more than the result we have reach- his report to that effect, but later upon fured from a careful reading of it as contained ther tests being made was of the opinion that in the record.

the object found was bismuth, a harmless Edward O. Painter, a business man of drug, instead. The examination made by Jacksonville, Fla., while crossing the St. Dr. Glasor, so far as it went, seems to have John's river on a ferryboat, was seized with been thorough, but that it was incomplete is a violent coughing and vomiting attack. Go-evidenced by the testimony given by him. ing to the side of the boat, presumably to

"Q. Dr. Glasor, it is a fact, is it not, that avoid vomiting on the deck of the boat, he you stated to Messrs. Barton and Stewart that

your examination was not complete and thorfell to the water and was not recovered until ough, and that it should go further; do you a few hours later, when his dead body was remember saying that? A. Yes; I said it in taken to an undertaker's establishment. At the sense that I simply obeyed orders. Q. That its arrival there it was met by Drs. Perry order to examine the stomach. It was not left

is, orders from whom? A. Perry and Boyd, the and Boyd, family physicians of the deceased, to my judgment how far I should go.” who were later joined by Dr. Upchurch, rep On May 31st, the attorney for the family resenting the coroner of the county. The wrote Dr. Carroll that he withdrew all obbody was opened and certain organs were for-jections to a representative of the complainwarded to Dr. Simon of Baltimore for an ant being present at the pathological examanalysis. Dr. Simon being out of Baltimore, ination to be made by Dr. McCleary. Dr. the organs were turned over to Dr. Charles Carroll testified that he had no recollection Glasor. Drs. Boyd and Perry immediately of having seen this letter until after his reafter the shipment of the organs took train turn from Jacksonville on June 20th. Howfor Baltimore, and upon their arrival seemed ever, the opportunity was not accepted. 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

share in this expense, but the weight of the , of the like provision of the Constitution of evidence was against this. There was also Maryland. Some of the American courts proof of the large amount of both life and have followed the old English rule that one accident insurance carried by the deceased, cannot dispose of his body after death, but and its comparatively recent issuance. From the great weight of authority in this couna reading of the testimony the impression is try is that one can dispose of his body by very strong, indeed, that although Dr. Gla- will. See cases cited in 40 Cyc. 1050. The sor finally acknowledged the control of the courts hold that the surviving husband or coroner, nevertheless the family physicians wife or next of kin have a quasi-property and attorney were the dominating forces right in the body in the absence of testamenthroughout, and the complainant's represent- tary disposition. The right is not a properatives were treated as though they had no ty right in the general meaning of property interest or rights in the matter. The lower right, but is extended for the purpose of court passed an order appointing Dr. George determining who shall have the custody of H. Whipple of Baltimore receiver to take the body in preparing it for burial. And charge of the organs then in custody of the courts of equity will protect those having clerk of the court, and directing him to make this right from unreasonable disturbance. a full and complete chemical and pathologi- But courts have never hesitated to have a cal examination of such organs or remains body exhumed where the application under of organs or to such partial examination as the particular circumstances appeared reathe complainant might require. From that sonable and was for the purpose of eliciting decree this appeal was taken by the widow the truth in the promotion of justice. Gray and daughter.

v. State, 55 Tex. Cr. App. 90, 114 S. W. 635, [1] Two of the main contentions relied 22 L. R. A. (N. S.) 513; Grangers L. Ins. Co. upon by the appellants are those of laches v. Brown, 57 Miss. 308, 34 Am. Rep. 446; 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 398. There are several reported cases where are rare. This presents no question of the the courts have refused such an examination examination of a dead body, with all of its while recognizing the right but deeming the attendant harrowing incidents. The body application to have been made at too remote was buried and no right pressed to exhume a period of time with no attendant circumit soon after nor at any time. The appellee stances to explain the delay. was not interested in the body, for it had In this particular case the bill was filed learned, in its first information after the for the purpose of discovering and preservdeath, that the vital parts had been removed, ing evidence, and under virtue of an express and it thereupon turned its attention to them agreement entered into by the assured with for any information it could gather as to the insurer that an examination would be the cause of death. It is not apparent what permitted. If this assured died as the result could have been done by it that was not of any cause exclusive of accident, then this done to exercise the right given by the posi- appellee is not liable for the amount of the tive terms of the policy. The record dis- policy. We are not concerned in the question closes amazing persistency upon the part of of what was the cause of death, but only the representatives of the appellee in de- as to whether the appellee has the right unmanding from the unquestioned representa- der its contract to investigate so as to learn tives of the appellants the privilege or right the truth so far as these organs will show. to be represented at the examination and That these constitutional defenses were not were finally driven to file this bill to enforce allowed by the lower court we have no doubt their rights. It is inconceivable that it was correct.

it was correct. We are of the opinion that should be seriously contended there was any under its contract the appellee had the right laches upon the company's part. We have to make an examination of the parts superiabove expressed our opinion on the question or to any property right in any member of of waiver, but we can further say that, even the family of the assured, and, when the deif the company had agreed to bear a portion mand was refused their representatives, it of the expense of the examination, the facts was the proper course to file a bill for disclearly show that it should not be bound by covery such as has been filed, and the relief an examination made under the circumstanc- granted was correct. es surrounding this one.

We have examined carefully the several [2, 3] The appellants made the contention, exceptions to testimony and do not deem it both in the demurrers and the answers, that necessary to deal with them in detail, for, the proposed examination would amount to irrespective of the rulings, we have been a deprivation of their property without the unable to discover anything which prejudiced process, within the meaning of the four- the appellants so as to compel us to reverse teenth amendment to the Constitution of the the decree rendered. United States and also within the meaning Decree affirmed, with costs to the appellee.

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