For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Wachenfeld, Burling and Jacobs. For reversal -- None. The opinion of the court was delivered by Vanderbilt, C.J.
The question presented by this appeal is whether an employer, ten months after the burial of an employee who died in the course of his employment, may obtain the disinterment of that employee's body and an autopsy to determine the cause of death for the purpose of defending a claim by the workman's widow that she is entitled to be compensated for the incident. From the order of the Law Division of the Superior Court denying the application, the employer appealed to the Appellate Division and we certified the matter on our own motion.
Thomas McDonough, the deceased employee, was a route salesman for the Sheffield Farms Company, Inc. On July 5, 1955, he started work at his usual hour, 4 A.M., and after satisfying the demands of his route, he returned to the milk plant at about 2:30 P.M. to work on his records. It was one of the hottest days of the uncomfortable summer of 1955. The temperature was at or near the maximum for the day of 99 degrees. At about 3:30 P.M. he collapsed, was taken to the hospital and there died at about 6 P.M. The hospital records show that on admission the decedent was in a coma, completely flaccid, his skin was hot and dry to the touch and his face was livid. Just prior to his death he had a temperature of 110 degrees. The report of death gives as the immediate cause "cerebral thrombosis with possible concomitant heat stroke."
Almost ten months after his death his employer sought to have McDonough's body exhumed and an autopsy performed, relying for its action solely on N.J.S.A. 40:21-30.11 and N.J.S.A. 40:21-71. Attached to the employer's moving papers was a supporting affidavit of Dr. Asher Yaguda, a pathologist and internist, who was specially retained by it to examine the records in connection with the death of Thomas McDonough. He swears that he has been unable "to ascertain the exact cause of death * * *" but that in his opinion "if the body of the deceased * * * was disinterred and an autopsy performed, the exact cause of death would be determined."
In opposition, the defendant widow submitted the affidavit of Dr. Arthur Bernstein, a specialist in the diagnosis and treatment of cardiovascular diseases. Dr. Bernstein, like Dr. Yaguda, examined and reviewed the hospital and other records in connection with the death of the decedent and on the basis of that information it was his "medical opinion that this man suffered a heat stroke causing high fever, that the patient's heart went into failure and that he died as a result of heart failure combined with cerebral manifestations of a heat stroke." It was his further opinion "that the cause of death is easily ascertainable within reasonable medical probability from all facts and information at hand, which facts and information are either in the possession of or available to the petitioner in these proceedings. * * *" He further stated, significantly, that "an autopsy to be performed at this date, 10 months after death and interment, and after embalming, would not show the cause of death of this decedent and would serve no useful purpose."
N.J.S.A. 40:21-30.11 and 40:21-71, the two statutes relied upon by the employer, are identical and provide:
"In any county having a chief medical examiner, the Superior Court or the County Court may, upon application and without notice, order the disinterment of any body under the direction and supervision of the chief medical examiner, and authorize the removal by the chief medical examiner of the body to the public morgue for the purpose of examination or autopsy."
The employer's contention here is that since there is no definite and conclusive knowledge as to exactly what the defendant died of -- either heat stroke or heart failure -- it had a right to know, and if it could be determined by autopsy, then an autopsy should be permitted. The employer says that "to prove decedent died of heart failure, a more difficult line of proof would be required than if he died of a heat stroke"; that "in view of the history of a previous heart disease, probably rheumatic, it is just as likely that the employee died as a result of that as well as a heat stroke," and that it should not be required to guess the cause of death.
The decedent's widow urges that the statutes upon which
the employer relies are statutes enacted under the police power and not authority for the exhumation in this case, and also that even apart from the statute the plaintiff has failed to establish facts necessary for the granting of such relief.
We find it somewhat difficult to understand why the employer chose not to make its application to the court below on the ground of the traditional equitable jurisdiction of the court to grant the relief here sought, but instead bottomed its application solely on the authority it finds in the statutes, unless it was because it believed that they afforded a greater chance for success. But since the granting or withholding of relief pursuant to these sections lies expressly within the discretion of the court, the test under it would ...