609, 139 N. W. 355; Zeitler v. National Travelers' Ins. Co. 106 Fed. 822; Patterson Casualty Co. 124 Minn. 478, 145 N. W. 395. v. Ocean Acci. & Guarantee Corp. 25 App. The claim auditor was a proper person to D. C. 46; Loesch v. United Casualty & S. call for cross-examination under the statute. Co. 176 Mo. 654, 75 S. W. 621; Ewing v. Bennett v. E. W. Backus Lumber Co. 77 Commercial Travelers' Mut. Acci. Asso. 170 Minn. 198, 79 N. W. 682; Ames-Brooks Co. N. Y. 590, 63 N. E. 1116; Root v. London v. Etna Ins. Co. 83 Minn. 346, 86 N. W. Guarantee & Acci. Co. 180 N. Y. 527, 72 N. 344; Leystrom v. Ada, 110 Minn. 340, 125 E. 1150; Crotty v. Continental Casualty Co. N. W. 507. 163 Mo. App. 628, 146 S. W. 833. The demand of the defendant to hold an autopsy, relied upon as its defense, was not made by it as agreed upon by the policy, nor was the demand which was proven made at a reasonable or proper time, or as agreed upon by the policy. Hallam, J., delivered the opinion of the court: A. L. Swenson held a policy of accident insurance issued by defendant, covering death from accidental injury, and payable in case of his death to his estate. On June 15, 1913, Swenson was visiting with a relative, Peter Holm, on a farm situated on Sand lake, a small lake near New Scandia, in Washington county. He dressed himself in a bathing suit, took a rowboat, went a short distance out upon the lake, and dove head first into the water. He came up once, appeared to struggle, and then sank and Failure to notify an insurance company of an autopsy to be held to ascertain the cause of death will not, in an action on the policy, affect the competency as evidence of facts adduced thereat, where there is no provision of law or of the insurance contract that the company should be notified when a post mortem examination is to be held. Sun Acci. Asso. v. Olson, 59 Ill. App. 217. Cook v. Modern Brotherhood, 114 Minn. 299, 131 N. W. 334; Rudd v. Great Eastern Casualty & I. Co. 114 Minn. 512, 34 L.R.A. (N.S.) 1205, 131 N. W. 633, Ann. Cas. | 1912C, 606; American Employers' Liability Ins. Co. v. Barr, 16 C. C. A. 51, 32 U. S. App. 444, 68 Fed. 873; Wehle v. United States Mut. Acci. Asso. 153 N. Y. 116, 60 Am. St. Rep. 598, 47 N. E. 35; Sudduth v. claims under the policy should be forfeited. | cal examiner present, then all claims under The company claimed a forfeiture because the policy shall be forfeited, a post mortem the beneficiary, at the request of insured's which occurred without knowledge or conphysician, permitted a post mortem of sent of beneficiaries would be no defense which no notice was given to the company. on the ground of lack of notice. Loesch v. The court, while it said that it is a rea- Union Casualty & S. Co. supra. sonable requirement under reasonable interpretation, and a violation of its terms under circumstances reasonably showing disadvantage to the company would work a forfeiture of the policy, yet held that failure to give notice did not work forfeiture in this case, as no disadvantage to the company was indicated, the evidence showing that it was very doubtful if the beneficiary was responsible for the act, as she testified that she did not know what post mortem meant, and did not know what the physicians were doing. And further, and which was the Right to examine body as including "aureal ground of the decision, that as soon as the attending physician saw the policy and read the clause, which was immediately after the post mortem, he went to the office of the company and told them what had been done, and offered to allow them to make a re-examination, and there was no suggestion in the record of any fact or theory which would tend to show that a re-examination of the body at that time would not have disclosed to the company's physicians everything which the first examination disclosed to the physicians who made it. topsy" and "exhumation." That the right of the insurer to “examine" body of insured, conferred by an accident policy, did not include the right to make an autopsy or to dissect, was held in Sudduth v. Travelers' Ins. Co. 106 Fed. 822. The court said that it did not "think that any ordinary person, in agreeing to the stipulation for an examination of the insured before or after death, would suppose he was agreeing to what would have been much more clearly expressed by the word 'autopsy' or by the word 'dissect.' I It cannot be said that there is a failure do not think that one would ordinarily supto comply with the provisions of an acci- pose that the word 'examine,' as applied to dent policy with reference to notice of the human body, either living or dead, autopsy where the company's agent was in- would, ex vi termini, include, or by an informed of an intended autopsy by physi- sured, at least, would be supposed to incians engaged by the beneficiary to perform clude, the idea of cutting it up. The word it. Legnard v. Standard Life & Acci. Ins. ‘examine' may not definitely express the Co. 81 App. Div. 320, 81 N. Y. Supp. 516. same idea to every person who sees it or Under a provision of an accident policy who uses it, but it is quite clear to me that if a post mortem be held without noti- that it does not, in the clause of the confying the company in time to have its medi-tract we are considering, include the idea was seen no more alive. Next day the body was recovered. There were some bruises on the face which the evidence shows must have been caused before death. There is abundant evidence of accidental drowning; in fact, the evidence would not sustain any other conclusion. There is some evidence that deceased had suffered from heart trouble, but no substantial evidence that he died from any such ailment. The defenses urged are as follows: The policy provided that "the company shall in no event be liable . in any case where any medical adviser appointed by it shall have been denied the right or opportunity of making a personal examination, or of holding an autopsy in case of death." It is claimed that the right to an autopsy was denied. The facts as to this are as follows: C. E. Drennan, claim auditor of defendant, learned of the death of deceased about 11 A. M. of June 17th. He was then at Minneapolis. He telephoned this plaineither of an 'autopsy' or of a 'dissection,' if there is any essential difference between those two words in this connection. 'Autopsy' is defined to be an examination of a dead body by dissection. 'Dissection' is the cutting apart of a dead body, or the cutting of it into pieces. Can it reasonably be supposed that it was in the contemplation of both of the parties to these contracts at the time they were made that the meaning of the word 'examine' in its context was to be so expanded as to include either the idea of an autopsy or the idea of a dissection? While an autopsy, speaking generally, always includes an examination, can it be said that an examination always includes an autopsy? or can it be fairly held that the simple word 'examine,' as used in the policies sued on, would be accurately defined in the same words as those used to define either 'autopsy' or 'dissection,' when endeavoring to arrive at the mutual agreement of the parties at the time they were contracting? It seems to me not; particularly when construing policies for insurance against death from external causes only, and which ordinarily would only involve or require external inspection. If the company desired or expected the insured to agree to a condition such as either of these words would have clearly indicated, there is no obvious reason why it should not have been expressed in plain terms. If there is a fair doubt as to the meaning of the words used in a policy, it should be solved in favor of the insured, because there appears to have been no reason why the plainest words could not have been employed by the company in framing the condition. It may be that the right to dissect a body, even after burial, is or would be an important right to the company; but that would make it all the more necessary L.R.A.1915D. tiff, who was the local agent of the defendant at New Scandia, and at 5:25 P. M. took a train for Copas, the nearest railway point to New Scandia. He arrived at Copas at 6:53 and at New Scandia at 7:30. He was then within 2 miles of the Holm farm, where deceased met his death, and where the body of deceased then was, and where the widow of deceased then was. Drennan spent the evening at New Scandia making investigations. About 10 A. M. the next day he was driven in an automobile to the Holm residence. The funeral was set for 1 P. M. Numerous friends and relatives from a distance had already gathered to attend the funeral, and more were expected on an 11 o'clock train. In this situation and at 10:18 A. M. Drennan sought out Mrs. Magney, the mother of the widow of deceased, and, as he himself testified, made the following demand: "The substance of it was that under our policy we had the right of performing an autopsy in case of death, and that as a representative of the company for it to express it in language in no way ambiguous or doubtful, or which, in order to effect the company's purpose, would have to be extended beyond its ordinary import." So also it was held in Patterson v. Ocean Acci. & Gurarantee Corp. 25 App. D. C. 46 (action on insurance policy insuring against "accidental bodily injury caused solely by external, violent, and visible means"), that the right to "examine" the body of insured does not include the right of autopsy or dissection, much less exhumation. But there is an obiter statement in Wehle v. United States Mut. Acci. Asso. 153 N. Y. 116, 60 Am. St. Rep. 598, 47 N. E. 35, that if it should appear in any case that at some subsequent date after the interment of a body circumstances or facts coming to the knowledge of the insurer warranted a reasonable belief that death was occasioned by means or causes excepted from the contract, a reasonable construction of such provision would authorize the insurer to insist upon an exhumation of the body and upon a dissection. Bill of discovery. Under a policy insuring against death from accident, and providing that the insurer shall have the right to make an autopsy, a court of equity has jurisdiction to entertain a bill of discovery, and appoint a receiver to take charge of the organs of the deceased insured pending examination as to cause of death, when demand of autopsy is refused, the court holding that under its contract the insurer had a right to make an examination of the organs superior to any property right in any member of the family of the assured. Painter v. United States Fidelity & G. Co. 123 Md. 301, 91 Atl. 158. J. H. B. I wished to have that right in order to de-, made within a reasonable time after death. termine the cause of death and see whether there was anything due them under the policy or not." Mrs. Magney communicated the demand to the widow of deceased. The demand was refused. Drennan testified that the reason given was "they said they thought it was too close the time of the funeral." Plaintiff does not question the validity of this provision in the policy which gave defendant a right to demand an autopsy, and, if the demand for an autopsy was properly made, its refusal defeats any right of action on the policy. The question is as to the sufficiency of the demand. Wehle v. United States Mut. Acci. Asso. 153 N. Y. 116, 60 Am. St. Rep. 598, 47 N. E. 35; Ewing v. Commercial Travelers' Mut. Acci. Asso. 55 App. Div. 241, 66 N. Y. Supp. 1056; Root v. London Guarantee & Acci. Co. 92 App. Div. 578, 86 N. Y. Supp. 1055; American Employers' Liability Ins. Co. v. Barr, 16 C. C. A. 51, 32 U. S. App. 444, 68 Fed. 873; Cooley, Briefs on Ins. 3449 (g). In Wehle v. United States Mut. Acci. Asso. supra, it was said: "Although no time is specified within which the permission to examine may be availed of, still, a due regard for the sentiments of the family and friends of the deceased, if not public policy, required as immediate an exercise of the option to examine as was possible." On similar principle, we think it must also be held that such a demand, to be effective, must be made at a reasonable time and upon a proper occasion. We are of the opinion that demand made in this case was not made at a reasonable time or upon a proper occasion. The demand was made upon the proper person. The widow of deceased was the sole beneficiary under the policy and she had control of the body of deceased. Larson v. Chase, 47 Minn. 307, 14 L.R.A. 85, 28 Am. St. Rep. 370, 50 N. W. 238; Lindh v. Great Northern R. Co. 99 Minn. 408, 7 L.R.A. (N.S.) 1018, 109 N. W. 823. She alone had the right to say whether or not an autopsy should be held. It was proper that the demand be addressed to her. It was proper also to communicate the demand to her through her mother. It was not necessary that demand be made upon her in person. A decent respect for the proprieties of the occasion made it peculis iarly proper that defendant communicate through someone who could better approach her with a matter of serious business than could a stranger. We think the natural purport of the demand was for an autopsy to be held at once. The language of the demand would naturally be so understood, and it evidently was so understood by all parties. The reason given for its refusal is indicative of this. It suggested now that the widow might understand the demand as one for an autopsy after the funeral obsequies had taken place but defendant's representative made no suggestion of this sort, even when the ground given for refusal of the demand was that it was too close to the time of the funeral. One in the situation of the widow of deceased is not to be expected to make counter propositions or suggestions, or to construe language used in such a demand in any but its plain and obvious meaning. When an insurance company feels called upon to serve a notice upon a widow between the time of the death and burial of her husband, and when the character of the notice is such that her conduct in reference thereto may result in the forfeiture of insurance money, the right to which has already accrued, the language of the notice should leave nothing to intendment, and should be free from doubt or ambiguity. We construe the demand made by the claim auditor as a present demand, calling for present compliance or refusal. We are of the opinion, however, that the time and circumstances of the demand were such that its refusal did not operate to defeat plaintiff's right of action. We must bear in mind that, except for some formal requirements, and except for the chance that the autopsy would develop facts of which we have no knowledge, the right of action upon this policy had fully accrued. The forfeiture of a right of action through the operation of a condition subsequent will | be enforced only where the right to such forfeiture is plain. 25 Cyc. 821. The right to an autopsy given by this provision of the policy was one calculated under the most favorable circumstances to cause some distress of mind to the family of deceased, and although no time was fixed when the exercise of the right might be demanded, a due regard for the sensibilities of the survivors clearly requires that there should be some limitation as to the time and occasion of such a demand. We are cited to no decided case involving a state of facts just like the case at bar. There are many cases, how-sary that the medical adviser make the deever, which hold in general terms that a demand for an autopsy, under a policy containing provisions similar to this, must be Now, the examination which defendant had a right to demand was for an examination by a "medical adviser appointed by it." We should not consider that it was neces mand in person, if one were appointed and at hand for the purpose of performing the autopsy. But clearly a demand made by a claim auditor, with no "medical adviser" at hand, could avail nothing. This claim auditor was not a physician, and he had no physician with him. His testimony is that he had in mind one of the company's doctors located in Minneapolis, and who was in Minneapolis at that time. The autopsy must await his coming. The claim auditor testified that the autopsy could have been held before the time set for the funeral, but the evidence is conclusive that it could not. Compliance with his demand would have caused a delay in the funeral obsequies, the extent of which we have no means to determine. There was no reason why the demand could not have been made several hours earlier, if not the day before. The claim auditor had learned of the death of deceased nearly twenty-four hours before. From the early evening before, and for nearly fifteen hours, he had been within ten minutes' ride of the place where the body lay and where the widow and her near relatives were. Yet he deferred his visit and his demand until the eleventh hour, and presented his demand under circumstances which must inflict upon the widow, not only the distressing experience of an autopsy upon the body of her husband, but the harrowing ordeal of a suspension of the funeral as well. The policy should not be construed as giving the defendant the right to demand an autopsy under such conditions. The undisputed facts fail to sustain this ground of defense, and it is accordingly unnecessary to consider the propriety of the instructions to the jury on this subject. The policy contained a provision that "no claim shall be valid unless written notice thereof shall be given the company within twenty days from the date of death . . unless such notice may be shown not to have been reasonably possible." 438; Canadian R. Acci. Ins. Co. v. Haines, 44 Can. S. C. 386, 21 Ann. Cas. 916; Fisher v. Travelers' Ins. Co. 124 Tenn. 450, 511, 138 S. W. 316, Ann. Cas. 1912D, 1246. It is contended the court erred in permitting plaintiff to call Mr. Drennan for cross-examination under the statute. The party calling him did not seek to avoid his testimony, and the form of the questions propounded would have been proper if the witness had not been called for cross-examination. No reversible error can therefore be predicated upon the ruling, Leystrom v. Ada, 110 Minn. 340, 125 N. W. 507. 3. Contracts between an irrigation company and water users under its ditch, providing for the use of water and for the maintenance of the ditch, are entered into with the law as to the right of the state to pre-regulate rates forming a part of the contract, and such rates are subject to control. Public service corporation property rights 4. The Railway Commission is not vested with jurisdiction to settle disputed property rights as to the ownership of an irrigation canal. Notice of claim was made July 11th, more than twenty days after death. This failure to give notice of claim within the time scribed in the policy is now asserted as a defense. There are several reasons why this defense is not available. We need mention but one. On July 21st, defendant replied to the notice given denying liability on the policy on the express ground that "the right which we have of holding an autopsy in case of death was denied us on June 18th." The denial of all liability on this ground alone was a waiver of the objection that notice was not given in time. 1 C. J. 480; Levine v. Lancashire Ins. Co. 66 Minn. 138, 146, 68 N. W. 855; Butler Bros. v. American Fidelity Co. 120 Minn. 157, 44 L.R.A. (N.S.) 609, 139 N. W. 355; Taylor- Baldwin Co. v. Northwestern F. & M. Ins. Co. 18 N. D. 343, 122 N. W. 396, 20 Ann. Cas. 432, note · jurisdiction. (April 3, 1915.) Headnotes by LETTON, J. Note. State regulation of rates of irrigation company. The present note is supplementary to a note on the same question appended to Salt River Valley Canal Co. v. Nelssen, 12 L.R.A. (N.S.) 711. A PPEAL by respondents from an order of the Nebraska State Railway Commission granting complainant authority to charge respondents an annual maintenance fee of $2 per acre for water furnished to them. Aflirmed. The facts are stated in the opinion. The Commission should not entertain a complaint made by the ditch company of its own rate. 479, 131 N. W. 1038; 2 Wyman, Publie The ditch company did not make a suffi- McCook Waterworks Co. v. McCook, 85 The people have not granted the Commission power to create obligations, amend conFenton v. Tri-State Land Co. 89 Neb. ' tracts, or make up the promoters' losses in In Green v. Jones, 22 Idaho, 560, 126 Pac. | 1051, the question involved was whether, under the statute, a water rate fixed by a board of county commissioners, and sustained by the courts, remained in force until a new rate was fixed. The statute provided that the commissioners, after hearing, should fix a reasonable maximum rate for water delivered from irrigation ditches, which rate should not be changed within one year; also that at the January session and at such other sessions as they deemed proper, the board should hear applications by any party interested in delivering water for irrigation or by parties consuming the water, the applications to be supported by affidavits showing reasonable cause for the board to proceed to fix a maximum rate of compensation for water delivered from irrigation ditches. In 1901 a maximum rate was established by a board of county commissioners, and sustained by the courts; in 1903 the irrigation company petitioned the board to establish a new rate, on the ground that the old rate was too low; the board entered an order fixing the same rate as had been fixed by the order of 1901, but the order of 1903 was set aside by the courts on the ground that the rate established was unreasonably low and would amount to a confiscation of the company's property without due process of law; no further application was made to the board for the fixing of any other rate. It was held that the rate fixed by the order of 1901 remained in force, and that the company could not compel consumers to pay a higher rate stipulated in a contract which the consumers had been compelled to sign to procure water during the pendency of the appeal from the second order of the board. What is a reasonable charge for irrigation under a statute providing that such charges shall be reasonable has been said to depend largely on the cost of constructing and operating the irrigation works. Young v. Hinderlider, 15 N. M. 666, 110 Pac. 1045. Under the California statute it was held in San Joaquin & K. River Canal & Irrig. Co. v. Stanislaus County, 155 Cal. 21, 99 Pac. 365, that where more than a year had elapsed after the fixing of the water rates, an irrigation company must first apply to the board of supervisors for re-establishment of rates which it claimed were unreasonable, before it could apply for relief to a court of equity. The statute authorizes boards of supervisors in the different counties to fix water rates so that the net annual receipts to the water companies shall not be less than 6 nor more than 18 per cent upon the value of their property, and provides that the rates so fixed shall be binding and conclusive for not less than one year after their establishment, and until established anew or abrogated; that at any time after the establishment of the rates they may be established anew abrogated, the re-establishment or abrogation to take effect not less than one year after the first establishment, and that the board may, subject to the above limitation of one year, abrogate existing rates and establish other rates on the petition of consumers or of the irrigation company. or River Under the California statute authorizing 1 |