text:
    C. I. T. Corporation, Appellant, v. American National Bank, Appellee.
    Gen. No. 8,385.
    Opinion filed February 3, 1930.
    Miller & Miller and Stevens & Herndon, for appellant.
    Peter Murphy, for appellee.
   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

The C. I. T. Corporation, appellant, on November 17, 3928, sued out of the circuit court of Logan county a writ of replevin to recover from American National Bank-, appellee, the possession of an Essex sedan. At the conclusion of the evidence adduced on the trial the court directed the jury to return a verdict finding the right of possession of the automobile to be in the appellee. Judgment was rendered upon the verdict to reverse which this appeal is prosecuted.

In July 1928, F. A. Greenlaw was engaged in the business of retailing automobiles in the City of Lincoln and operated under the name of Hudson-Essex Sales Company. Greenlaw had in his employ one Oscar C. Foote who did general work about the place of business and assisted in the sales of cars. On September 26, 1928 the Hudson Motor Car Company of Detroit, Michigan shipped to its own order at Lincoln three automobiles, one of which was the Essex sedan in controversy in this suit. The Hudson Motor Car Company mailed the bill of lading for this shipment, with sight draft attached for the sum of $1,736.25, to the appellee, American National Bank, at Lincoln. The cars arrived at Lincoln about October 1 and remained on the track of the Illinois Terminal R. Company at that place until the evening of October 11. It appears Greenlaw was not financially able to pay the amount of the sight draft. On October 8, Foote and the Hudson-Essex Sales Company executed a conditional sale contract for the Essex sedan in question and at the same time Foote executed his promissory note for the sum of $592.20 payable to the order of the Hudson-Essex Sales Company in 12 equal monthly installments. Greenlaw took this note and conditional sale contract to the office of appellant in Bloomington, indorsed them to appellant without recourse and the latter paid Greenlaw $540. This transaction occurred between 1:00 and 1:30 o’clock on the afternoon of October 11. Greenlaw then returned to Lincoln, went to the bank of appellee and by agreement therewith executed three notes, two for $500 each and one for $450 payable to appellee within 10 days and also signed three trust receipts. One of the notes and one of the trust receipts was executed separately for each respective automobile covered by the bill of lading. Upon the execution of the three notes and the three trust receipts and the payment of the $540 received by Greenlaw from appellant the sight draft was marked paid and the bill of lading was delivered by appellee to Greenlaw. The latter presented the bill of lading to the railroad company, paid the latter its freight and demurrage charges and the excise tax and took possession of the automobiles. All the cars were then taken to the place of business of Greenlaw, who was doing business in the name of Hudson-Essex Sales Company as above mentioned. Two of the automobiles were subsequently sold and the notes covering them were paid by Greenlaw to appellee but the Essex sedan was not sold and the note covering that car was not paid. It was kept in the showroom of the Hudson-Essex Sales Company and used as a demonstrating car. Sometime between November 5 and Novémber 10 appellee retook possession thereof by virtue of the provisions of the said trust receipt and thereupon appellant brought this replevin suit to recover possession of the same.

This so-called trust receipt provides that the automobile is received by Greenlaw in trust under the orders and to the use of appellee; that Greenlaw has the right and privilege to sell said motor vehicle for the account of appellee and receive from it as his own profit all the money obtained for the sale over and above the principal and interest then due on the attached promissory note; that the right to receive such money in excess of the principal and interest is the consideration for the trust; in case of sale Greenlaw covenants and agrees to transmit the amount of principal and interest then due on the said note to appellee to be applied in payment thereof; that Greenlaw shall not loan, rent, deliver, mortgage, pledge or otherwise dispose of said motor vehicle nor operate it for demonstration or otherwise; that said motor vehicle shall not be offered and negotiable receipt issued and received therefor; that Greenlaw is to maintain and keep in a conspicuous place upon said motor vehicle a tag bearing the words, “Held in trust by us,” or “Property of the American National Bank, Lincoln, Illinois”; that any sale of the motor vehicle is but for account of said bank and that said motor vehicle or any proceeds thereof shall be kept separate and capable of identification as the property of said bank; that the bank may at any time cancel the trust and take possession of said motor vehicle which is to be returned to said bank upon its demand.

The conditional sale contract between Greenlaw and Foote is also in the nature of a receipt and is executed by Foote only and in so far as it is pertinent to the issues here is as follows: “To Hudsoh-Essex Sales Co. City-Lihcolh-State-III.

“I . . . do hereby acknowledge having this day received from you the following Motor Vehicle . . . with its equipment; . . . for which I . . . agree to pay you on the following terms and conditions. . . .

“It is agreed that the title to, ownership in, and right of possession of said chattel are vested in you and your assigns until said indebtedness and all other sums of money payable to you, whether evidenced by note ... or otherwise, also any judgments which you, your successors or assigns may obtain therefore, shall have been fully paid in money, at which time owner shall pass to me. . . .

“It Is Further Agreed that said chattel shall at all times, while in my . . . possession, be at my . . . risk and loss, but that loss, injury or destruction of said chattel shall not operate in any manner to release me . . . from payment as provided herein, and the giving' of notes or renewals or extensions thereof shall not release me . . . from the conditions of this agreement. If any of my . . . indebtedness shall become due and remain unpaid in whole or in part, or if said chattel is removed or attempted to be removed from the State in which I . . . now reside, or to be otherwise disposed of, or if I . . . shall sell or encumber or shall attempt to sell or encumber said chattel, or hire out said chattel or use the same to carry passengers for hire, or in case of misuse or abuse thereof, or should said chattel be used for the bartering, storage or transportation of intoxicating liquor contrary to the provisions of the so called Volstead Act, ... or whenever you shall deem the debt insecure, . . . the full amount unpaid hereunder, including any note given, shall become due and payable forthwith and you or your assigns may, without any previous notice or demand of performance, and without legal process enter any premises where said chattel may be found and take possession thereof, after which you may at your option, make such disposition of said chattel as you shall deem fit, and all payments made by me . . . shall be retained by you as liquidated damages for the use of said chattel while in my . . . possession, and not as a penalty. Or said chattel may be with or without notice sold either at public or private sale, and the proceeds, less the expense of taking, removing, holding, and selling said chattel, shall be credited upon the amount unpaid hereunder; or without such sale there may be credited upon the amount unpaid the fair market value of said chattel at the time of repossessing same, and in either event, in consideration of the use and depreciation of said chattel, I . . . promise and agree to pay the balance forthwith. I . . . agree to pay promptly, when due, all taxes and assessments which may be levied upon said chattel. I . . . expressly waive as against this agreement all exemptions and homestead laws, and all claims for damages of whatever nature, also any and all provisions of law wherein and whereby it is required that any sum of money shall be repaid to me ... or that said chattel shall be sold at public or private sale, and any part of the proceeds accounted for, or paid over to me. . . .

Oscar C. Foote. L. S.”

It is claimed by appellant that upon the delivery of the bill of lading to Greenlaw by appellee the title to the cars passed absolutely to Greenlaw and from him to appellant by virtue of the assignment of the conditional sale contract by Greenlaw to it; that the trust receipt was in the nature of a chattel mortgage, was not recorded and had no validity as against the rights of third parties; also, that if the trust receipt was not in fact a chattel mortgage, it was a secret lien which lost its validity by appellee delivering the automobile to "Greenlaw and permitting him to offer if for sale in the regular course of business in which he was then engaged.

Appellee contends that at the time that the conditional sale contract was executed between Greenlaw and Foote and at the time it was assigned to appellant, the bill of lading had not been delivered to Greenlaw and that he at said time had neither possession nor title to the automobile and could convey no title either to Foote or to apellant; that when Greenlaw executed his notes and paid the cash to the appellee bank in order to obtain the possession of the bill of lading, the bank had no knowledge of the execution of the conditional sale contract or its assignment to appellant and that the whole transaction between Greenlaw, Foote and appellant was a fraud upon appellee.

The proofs aré conclusive that the conditional sale contract and its assignment to appellant took place before Greenlaw had obtained from appellee the bill of lading and.also that when appellee delivered the bill of lading to Greenlaw it had no knowledge of those transactions. It is submitted by appellant that the facts in this case are substantially the same as they were in American Bank Co. v. General Motors Acceptance Corp., 248 Ill. App. 385 and that our holding in that casé is conclusive upon the issues in the case at bar. In that case, Miller to whom the cars had been sold in order to raise the money to pay for them sold them to several individuals and took chattel mortgages to secure the balance of the payments thereon which mortgages were duly filed of record and of which the banking company had full knowledge, or was charged with notice thereof by law when it delivered the bill of lading to Miller and we held under these facts: “Under the facts stated, it seems clear as a matter of law that after the appellant had released the cars for delivery to Miller, Miller’s title as owner of the cars became complete; that this title at the same time passed to the purchasers of the cars mentioned, and that the lien of the chattel mortgages given by the purchasers of the cars in conformity with the bargain and sale of the cars by Miller became legally effective.” No such facts appear in this case.

The conditional sale contract assigned to appellant was as much a secret lien as the so-called trust receipt held by appellee and contained more of the elements usually found in a chattel mortgage than in the trust receipt which is more in the nature of a contract of agency. In the trust receipt it was provided that the car in question should be marked as being held in trust for appellee and while the evidence does not show whether this was done, in all probability it was not because at the time Greenlaw' signed the trust receipt he had already attempted by the conditional sale contract to convey the car to Foote and had assigned the contract to appellant.

Subsections (1), (2) and (3) of section 20 of the Uniform Sales Act, Cahill’s St. ch. 121a, ¶23, are as follows, “(1) Where there is a contract to sell specific goods, or where goods are subsequently appropriated to the contract, the seller may, by the terms of the contract or appropriation, reserve the right of possession or property in the goods until certain conditions have been fulfilled. The right of possession or property may be thus reserved notwithstanding the delivery of the goods to the buyer or to a carrier or other bailee for the purpose of transmission to the buyer.

“(2) Where goods are shipped, and by the bill of lading the goods are deliverable to the seller of (or) his agent, or to the order of the seller or his agent, the seller thereby reserves the property in the goods. But if, except for the form of the bill of lading, the property would have passed to the buyer on shipment of the goods, the seller’s property in the goods shall be deemed to be only for the purpose of securing performance by the buyer of his obligations under the contract.

“(3) Where goods are shipped, and by the bill of lading the goods are deliverable to the order of the buyer or of his agent, but possession of the bill of lading is retained by the seller or his agent, the seller thereby reserves a right to the possession of the goods as against the buyer.”

It is clear that under these provisions of the statute appellee had a right to reserve the possession of the car in itself even though it was delivered to Greenlaw and that the execution of the conditional sale contract by Greenlaw and Foote prior to the execution of the trust receipt by Greenlaw and appellee, who had no knowledge thereof, could not have the effect of destroying the right of possession specifically given to appellee by the statute. The acts of Greenlaw and Foote if not actually fraudulent amounted to at least a constructive fraud. Section 23 of the act, Cahill’s St. ch. 121a, ¶ 26, provides that subject to the provisions of the act where goods are sold by a person who is not the owner thereof, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by his conduct precluded from denying the seller’s authority to sell. When Greenlaw attempted to sell this car to Foote by the conditional sale contract and when he assigned the contract to appellant he did not have possession of the car nor the right to its possession. The actual possession and the right of possession thereof was at that time in appellee, consequently appellant procured no greater rights to the possession of the car by the assignment of the conditional sale contract to it by Greenlaw than Greenlaw himself had which were none at all at that time and appellee who occupied the position of owner of the car did nothing by its conduct to preclude it from denying Greenlaw’s authority to sell. It had no knowledge that Greenlaw had made the conditional sale contract, and the car was never removed from Greenlaw’s place of business but was kept there for the purposes of exhibition and sale in the regular course of business and when default was made by Greenlaw in the payment to appellee for the car it had the right to repossess itself of the same under the terms of the trust receipt.

The judgment of the circuit court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Eldredge

license: Public Domain

text:
    Sarah A. Cantrall, Appellee, v. Great American Casualty Company, Appellant.
    Gen. No. 8,388.

      Opinion filed February 3, 1930.
    John Gr. Friedmeyer and Charles S. Andrus, for appellant.
    Joseph A. Londrigan and James E. Londrigan, for appellee.
   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

Sarah A. Cantrall, appellee, recovered a judgment against appellant for the sum of $5,450 in an action of assumpsit based upon a policy for accident insurance.

Alvin W. Cantrall, late husband of appellee, made his application to appellant for a policy of accident insurance on December 9, 1926, on which application the policy was issued. At the time of his death, Can-trail was, and had been for about 12 years, superintendent of the repair department of the Jennings Auto Sales Company in the City of Springfield. The repair department in which the deceased worked was on the second floor of the building. There was a large elevator in the west end of the building upon which automobiles were taken to the second floor and there repaired. On the morning of the eighteenth day of January, 1927, the deceased, in apparent good health, went to his work as usual. The weather on this day was damp, cloudy, cold and heavy. The repair room had several windows in it but whether any of them were opened that day, the evidence is not clear. The air in the shop became foul from the exhaust of running motors and several other employees during the day were more or less affected thereby. In the afternoon, the deceased complained of a headache and was seen to stagger and walk in a draggy manner and complain of having gotten too much gas. At about 3:30 p. m. he asked another man to take over the shop and said he had too much gas and was going home. Some of the employees offered to take him home but he declined their assistance, saying that he had his automobile outside and could get home all right. He lived about a mile and a half from his place of work, and when he reached home, his wife and daughter assisted him out of his automobile and into the house, and he was immediately put to bed. Doctor Locke, the family physician, was called and saw him about 5 o’clock that evening and gave him treatment for carbon monoxide poisoning. The doctor called on him 'again later that night and several times thereafter and he apparently seemed to be recovering. He died suddenly between 8 and 9 o’clock in the morning, January 20,1927.

It is firmly established that an injury or death caused by the unconscious or involuntary inhalation of poisonous gases, is an injury or death caused by accidental means. Fidelity & Casualty Co. v. Waterman, 161 Ill. 632; Travelers’ Ins. Co. v. Ayers, 217 Ill. 390, and cases cited.

Appellant filed the general issue and six special pleas. The first special plea is based upon a false answer to question “N” in the application which inquired as to whether the applicant at that time was in sound condition physically and mentally and to which he answered, “Yes,” and this answer is alleged to have been false. There is no evidence in the record to sustain this plea. There is no evidence which even tends to show that the insured was not in sound condition, physically and mentally, when he signed the application.

The second special plea avers that the insured did not die as a result of bodily injuries affected directly and independently of all other causes through external, violent and accidental means as required by the policy, but died of bodily diseases and other causes not caused directly by any bodily injury affected directly and independently of all other causes through extreme, violent and accidental means. The evidence clearly establishes that the insured had been a steady workman for about 12 years and there is no evidence that he had ever lost any time from his work on account of illness except that at one time more than a year before he had been poisoned by monoxide gas from which he had recovered within two or three days. The witness Burnett testified that he was employed in the repair shop and had worked under the insured in the shop for about five years and saw him every day, never noticed anything unusual so far as his health was concerned. The witness noticed the gas was bad in the garage on the afternoon of January 18, 1927; that it came from running motors; that between 35 and 40 cars came into the garage that day; that while the cars are being repaired frequently their motors are running and the exhaust goes into the center of the room and that the insured spent most of his time in the center of the room and at his desk, that he noticed that the gas was bad because he, himself, had a very bad headache; that the gas in there that day was more than usual from the exhaust from the automobiles; that he noticed the deceased sitting on a bumper on the front end of the car back of which he was working*, and was kidding him about being lazy and then noticed him go to his desk and put his elbows to his head,* it wasn’t long before he saw him going to the locker room and the last time he saw him, he was going out of the door to go home; he was staggering; it was about 3:30 p. m. when he left the shop; the windows of the room are not always open on cold days; motors were being repaired and were being run to test them out; the automobiles for repair were put on the south side of the building and the ventilation is at the south for the purpose of light as well as ventilation, so the mechanics can see to do their work better; there is quite a space back of the cars, to the north of the cars; Cantrall’s desk was located at the east end of the room and would be behind the cars and would get all the exhaust; his duties were all over the shop. The witness Eoss testified that he was working in the shop on the day in question and the air was heavy and he noticed gas and smoke that would lay in the building; when Cantrall left the building that afternoon, there were six to ten cars in the shop; noticed nothing unusual about him until in the afternoon when he noticed him with his head resting on his arms at his desk and saw him stagger to the washroom and followed him in; he said he had too much gas and had to go home. Boss insisted that he should get somebody to take him home; he said no, that his car was there and he would take it himself in a few minutes; as a rule, if it gets bad in there in the wintertime, the men will leave a window open long enough to clear the room and let the air in, then pull it down again; it is a large place and hard to keep warm in the winter with all the windows open. The witness Johnson testified that Cantrall was a steady worker; that he noticed there was a lot of gas in the garage which came from the running of the motors in the garage and that he, himself, had a headache therefrom; that he noticed that Cantrall was sick about 3 o’clock and saw him on the fire escape first trying to get some fresh air and then saw him go to his desk and lean over with his head in his hands; he was back on the fire escape when he first noticed him in the open air; he asked to take him home but he said no that he could make it all right; the gas was heavy that day; it was a kind of mist and rain, misty like, when that kind of weather comes, the atmosphere is low and damp and the gas is low and heavy; don’t remember whether the wiiidows were open or not; it was cold and the windows were not opened as the workmen would rather stand the gas. Dr. G. D. Locke testified that he had known the insured for 12 or 15 years and that the general condition of his health was good; that he saw him on January 18 at his home in bed about 5 or 6 o’clock and made an examination of him; the first thing that was called to his attention was the extreme florid condition of his" skin; his face and hands looked like a man with a high temperature; he had difficulty in breathing and extreme weakness, dilation of the pupils and pounding pulse, respiration labored, normal temperature; he made a diagnosis that he was suffering from carbon monoxide poison; opened the windows, applied heat to his body, stimulated the heart with strychnine and nitroglycerine and kept him as warm as he could; saw him again that night about 8 or 9 o’clock and three or four times the next day; he died on the morning of January 20 very suddenly ; saw him at 2 o’clock in the morning and feeling that he was better and perhaps out of danger and did not again see him until after he was dead; that he diagnosed his death as due to carbon monoxide inhalation; his opinion is that he was suffering from carbon monoxide poison which he had breathed; the cause of the death in his opinion as he gave it in his death certificate and in his report before the coroner’s jury was due to carbon monoxide poison; his acute condition was superimposed upon a chronic exposure to carbon monoxide. Dr. J. R. Higgins testified on behalf of appellee as an expert. He resided, at Gillespie, Illinois, which is located in a coal mining district, and he was chief surgeon for the Superior Coal Company which employed 3,000 employees. There is a school at Gillespie for the purpose of training men to detect gas. He examined all men who took such tests. He testified in substance that coal mines often contain many gases, chief of which are carbon dioxide, carbon monoxide and hydrogen sulphide; that he had had experience with industrial accidents and a number of cases of people overcome with gas were brought to the hospital and. observed by him; the exhaust of automobile motors is very similar to gas that you find in mines except that there is greater amount of carbon monoxide gas from automobiles; does not think that an autopsy performed two weeks after death would reveal whether the death was caused by carbon monoxide poisoning and does not think you could at such time find sufficient gas to justify such conclusion, and that it would be hard to tell in two or three days; a blood test taken immediately after death might show the cause of death; gaseous poisons would probably escape and no one can tell how long gas would remain combined with the blood; in answer to a hypothetical question put to him, he stated that in his opinion the insured died from an acute attack of carbon monoxide poisoning.

To meet the above evidence, appellant introduced the evidence of three physicians who testified as experts. Dr. Deal, in answer to a hypothetical question, stated that in his opinion the death of insured was not caused by carbon monoxide poisoning; the effect of inhalation of carbon monoxide gas on the vital organs and tissues of the human system where the patient has been exposed to such gas for a period of about five years in different quantities would be the development of a comparative immunity to carbon monoxide, that is, so that such person would resist it better, like one who becomes acclimated to a higher altitude, so you can with carbon monoxide breathing; where there is extreme exposure such as chronic exposure constantly there may become chronic changes; that means that by this chronic exposure every day over a long period which produces headaches every day and a little nausea and sickness; the authorities say chronic exposure makes some changes but that he did not know about that in his experience; he had never been present at an autopsy upon the body of a man who died from carbon monoxide poison and did not know as to what the findings would be; that he was relying a great deal upon standard literature that he had read; from the facts stated in the hypothetical question as to the condition of the man, it would look highly suspicious of the heart; unless the autopsy was performed within a short time, the blood condition would not give any information as to carbon monoxide; that his opinion is that the gas leaves the body within 10 or 12 hours after exposure; florid condition of the face, difficulty in breathing, extreme weakness, dilation of the pupils, respiration labored with normal temperature, semi-consciousness are found in carbon monoxide poisoning; there has been considerable dispute in the past as to the effects of carbon monoxide gas but he thinks they just about agree now, but you can pick out different authorities here and there; they have different ideas about it. Dr. Patton, in answer to a hypothetical question, stated that he had an opinion as to whether the insured died from the effect of carbon monoxide poisoning. "When asked what his opinion was, he said he thought the death might have been due to one of several causes, “Angina pectoris, a coronary thrombosis, — that is, a thrombosis of the blood vessel that goes to the heart; embolus, that is, a detachment of a portion of the blood clot that gets into the circulation, a ball thrombosis, which is a clotting of the blood in one of the chambers of the heart which produces, sudden death or cerebral hemorrhage”; if an autopsy had been performed upon the body before its burial, the exact cause of the death might have been determined, not from carbon monoxide itself, but the secondary changes that had come from oxygen depredation which would have produced lesions that would have been determined at the autopsy; that evidence would be present if the autopsy had been performed two or three weeks after his death; a florid condition of the face, difficulty in breathing, dilation of the pupils, respiration labored, temperature normal, semi-consciousness and somewhat irrational are among the symptoms found in monoxide poisoning. Whether a man dies immediately from monoxide poisoning or lives a few days depends entirely upon the length of the exposure and the concentration of the gas; the whole thing is the amount of gas that the man has at the time of the exposure, the length of time that he is in that environment and the rapidity with which he gets into the open air and allows the interchange of the gases to take place; any exposure to gas that is sufficient to produce unconsciousness over a long period of time is sufficient to deprive the brain tissue of oxygen and produce secondary changes in the brain, which might cause his death a few days or several days or many days afterwards; the practice of medicine is not a science; it is an art; there were no definite rules to fit all cases; you can simply record your observations and make deductions from your observations. Dr. Herndon, in answer to the hypothetical question put to him, stated that in his opinion the insured did not die from the effects of carbon monoxide poisoning because of the length of time that he lived following the possible exposure and because of the suddenness of his death; that in his opinion, if an autopsy had been held within two or three weeks after the death the cause of death could have been determined; you might find as symptoms of monoxide poisoning, florid condition of the face, difficulty in breathing, dilation of the pupils, normal temperature, semi-consciousness and the fact that the patient was somewhat irrational; in his opinion the insured died from some form of heart disease or of some form of cerebral accident commonly grouped under the term of apoplexy; in the more recent literature the opinions have been clarified to about those he had stated but they still differ.

It is. insisted that from the above testimony, the manifest weight of the evidence supports the second special plea, in that it proves that the insured did not die from the effects directly of carbon monoxide poisoning, but that he was afflicted with some form of heart disease and that his death was caused by the combination of that disease with the gas poisoning. We cannot agree with this contention. There is no evidence that the insured was ever troubled with his heart and the only inference that such might have been the case were the expert opinions of the physicians who testified for appellant, but it is manifest that these opinions were not positive and at most they were but the individual opinions of those witnesses based upon the hypothetical question propounded to them. The hypothetical question has not been abstracted. Each one of the experts who testified on behalf of appellant admitted that the symptoms surrounding the illness of the insured were all symptoms of monoxide poisoning. The physician who attended him during this illness and who had been' his physician for many years, stated that in his opinion the death was due directly to an acute attack of monoxide poisoning. It is argued very strenuously by counsel for appellant that the long exposure of the insured to the automobile gas emitted in the repair shop had caused heart trouble or a breakdown of the tissues of the brain, but we do not find that this theory is supported by any evidence; in fact, one of the expert witnesses for appellant testified that such an exposure would tend to make his body immune to the effects of the poisoning. Under the evidence introduced, it became a question of fact for the jury to determine whether the insured came to his death through the effects of monoxide or other poisonous gases, and there being ample evidence to sustain the verdict of the jury upon this question, this court would not be justified in holding that the second special plea was proven by the manifest weight of the evidence.

The third special plea sets out the provision in the policy which requires the beneficiary to give immediate notice of the accidental death to the insurer at its home office, 1779 Ogden Avenue, Chicago, Illinois, with particulars sufficient to identify the insured and then avers a failure to give such notice. Such a requirement in insurance policies means that such a notice must be given within a reasonable length of time. What is a reasonable time must be determined from the particular facts in each particular case and must be construed with consideration of what would be the usual conduct of a beneficiary suddenly confronted by . the unexpected death of the assured, and in this case by what would be reasonably expected of the widow whose husband had unexpectedly died by this accident. It would be a harsh rule of law to hold, under circumstances, that appellee should have immediately sent a notice of her husband’s death to appellant. The deceased died on January 20, 1927. On January 22, appellee requested Mrs. Mary Bickus, a neighbor, to call up Mr. Lawrence L. Flynn, the general agent of appellant in Springfield, and notify him of her husband’s death. Mrs. Bickus called up Mr. Flynn about 8 o’clock that morning and informed him of the death of the deceased and that it was caused by the accident. There is no dispute over this fact. Mr. Flynn immediately called the home office of appellant at Chicago on the telephone and advised them of the death and that the funeral would be held that afternoon and told them also that the inquest would be held on the following Monday, January 24. He was directed by the home office to inquire of appellee whether she expected to file a claim under the policy and that if she did, it would be necessary for her to notify the home office in writing. Mr. Flynn so notified appellee and she immediately wrote a letter to the appellant so notifying it of the death of her husband and addressed it to appellant at the address printed in the policy. It appears, however, that since the policy was issued, the home address of appellant had been changed and it did not receive this letter until January 27, 1927. Under these facts, we hold there was no unreasonable delay in notifying appellant qf the death of the deceased. Moreover, appellant subsequently sent to appellee mortuary blanks by which to make the proper proofs of death which she caused to be executed and returned to appellant.

The fourth special plea sets out a provision of the policy which gave to appellant the right and opportunity to make an autopsy in case of death, where not forbidden by law, and avers that a demand for an autopsy was made and refused by appellee. The proofs do not show than any demand for such an autopsy was made by appellant upon appellee until February 3, 1927, when appellant wrote to appellee making such a request. This was two weeks after the death of the. insured, and after the proofs of death had been received by appellant. The proofs further show that Mr. Flynn, the general agent of appellant in Sangamon county, and Mr. Brassch, the assistant secretary and vice president of appellant and who was also an attorney at law, were present at the coroner’s inquest on January 24 and no request was made at that time for an autopsy. The coroner testified that before the inquest he asked appellee if she desired an autopsy made, to which she replied in the negative. The coroner was not acting at the request of or with the knowledge of the appellant at the time he mentioned this matter to appellee and he testified that he could see no reason why an autopsy should be held. Subsequently, appellant requested the coroner to make such an autopsy under the provisions of the statute giving him authority so to do which request the coroner refused. At common law, it is a criminal offense to disinter a dead body which has been buried. Paragraph 333 of the Criminal Code, Cahill’s St. ch. 38, provides as follows: “Whoever wilfully and without authority digs up, disinters, removes or conveys away from the place of sepulture or interment thereof, any human body or the remains thereof, or knowingly aids in such disinterment, removal or conveying away, shall be imprisoned in the penitentiary, not less than one nor more than ten years.” The general policy of the law is as stated in 13 Cyc. 271: “Except in case of necessity, the policy of the law is that the sanctity of the grave should be maintained, and that a body once suitably buried, should remain undisturbed. ... A proper appreciation of the duty we owe the dead, and our due regard for the feeling of our friends who survive, and the promotion of the public health and welfare, all require that the bodies of the dead should not be exhumed, except under circumstances of extreme urgency,” and again in the same volume on page 276 it is stated: 6 The beneficiary in a life insurance policy is not the only person who has an interest in having the repose of the dead respected and held sacred. It is shocking to the senses to conceive of one person or one or more persons contracting so as to provide for an exhumation and mutilation of dead bodies. We think to hold that such rights may be established by contract is carrying it to unwarranted extremes.” Such provisions in insurance policies, however, have been recognized by the courts with certain limitations, one of which is that a demand for an autopsy must be made within a reasonable time and where there is no provision in the contract itself giving the right to an autopsy after interment, such a provision is construed to mean that such an autopsy must be demanded and performed prior to the interment. United States Fidelity & Guaranty Co. v. Hood, 124 Miss. 548; Johnson v. Bankers’ Mut. Cas. Ins. Co., 129 Minn. 18; Massachusetts Bonding and Ins. Co. v. Duncan, 166 Ky. 515; American Employers’ Liability Ins. Co. v. Barr, 68 Fed. 873; Union Cent. Life Ins. Co. v. Hollowell, 14 Ind. App. 611; Wehle v. U. S. Mut. Acc. Ass’n, 153 N. Y. 116; American Mut. Ins. Co. v. Nuckols (Tex. Civ. App.), 187 S. W. 497. In the case of United States Fidelity & Guaranty Co. v. Hood, supra, it was further held that if the insurer decides to avail itself of this privilege it must so arrange and provide for information to be given of the death prior to the interment. In this State, the authority for holding an autopsy is given to the coroner solely. Appellant knew of the death of the deceased early in the morning of January 22. The funeral did not take place until sometime in the afternoon of that day. No request was made for an autopsy at that time nor on the following Monday, January 24, at the time of the inquest, in fact, no demand was made for nearly two weeks later. We cannot hold that the demand for the autopsy was made within a reasonable time.

The fifth special plea is substantially the same as the second plea and need not be further discussed, and the sixth special plea is substantially the same as the fifth only in somewhat different language.

Appellant urges that the court committed an error in refusing to give instruction number 8 offered by it. This instruction, in substance, tells the jury that if they believe from the evidence that the deceased had been subject to previous attacks of carbon monoxide poisoning, and that the vital organs and tissues of his body and blood were weakened thereby, and that Cantrall contracted physical and bodily infirmities therefrom, and that the cause of his death was an acute attack of carbon monoxide poisoning superimposed upon a chronic condition, then in such case they should find the issues for the defendant. There is no evidence to justify such an instruction as we have heretofore shown; the only evidence upon this subject is that the deceased was in normal and good health up to the time of his last illness.

The ninth refused instruction offered by appellant informs the jury that if they believe from the evidence that the deceased knew of the presence of the carbon monoxide gas in the garage and knew the dangerous effects of such gas from previous effects and attacks upon him and fully appreciated the danger of inhaling said gases, and that he remained in said workroom and continued to inhale said gases until he suffered an attack which subsequently resulted in his death, then in such case the cause of his death would not be accidental within the meaning of the policy and they should find the issues for the defendant. We know of no law to sustain such a proposition. The subtle effects of the presence of gases is seldom discovered by the person inhaling the same until they become ill therefrom. There is no evidence tending to show that the deceased knew of the presence of the carbon monoxide gas in the garage before he suffered the attack charged in the declaration.

The tenth refused instruction offered by appellant refers to the demand for an autopsy and states that if the jury believed from the evidence that the request made by such was refused by appellee then she is not entitled to recover in the case. What we have heretofore said on the subject of autopsy disposes of this alleged error.

The eleventh refused instruction tells the jury that if they believe from the evidence that death was caused directly or indirectly, wholly or partly, by bodily infirmity other than any disease, the appellee is not entitled to recover. What we have said in discussing the eighth refused instruction applies to the refusal of this instruction.

There is no error in the record and the judgment of the circuit court is affirmed.

Affirmed.