Armstrong v. Employers Cas. Co.

Decision Date19 April 1962
Docket NumberNo. 4010,4010
Citation357 S.W.2d 168
PartiesRoxie Mae ARMSTRONG, Appellant, v. EMPLOYERS CASUALTY COMPANY, Appellee.
CourtTexas Court of Appeals

Carter, Gallagher, Jones & Magee, Morton Rudberg, Dallas, for appellant.

Leachman, Gardere, Akin & Porter, Gordon H. Rowe, Jr., Dallas, for appellee.

WILSON, Justice.

Defendant's motion for instructed verdict was sustained in an action for recovery of accidental death benefits under defendant's policy naming plaintiff beneficiary. The policy covered 'loss resulting directly and independently of all other causes, from bodily injury effected solely through external, violent and accidental means', excluding loss resulting 'from self-destruction' whether sane or insane, and that 'caused by intentionally self-inflicted injury.' Insured died as a result of a self-inflicted gun shot wound which plaintiff alleged resulted accidentally, and which defendant asserted was caused intentionally.

Plaintiff says the evidence raised a jury issue that death resulted from accidental means, and did not show conclusively insured died as a result of intentional self-destruction.

The only living witness to the shooting is described by plaintiff as the paramour of deceased. Her testimony was that after an argument with her alone in her apartment following drinking of intoxicants, assured held a loaded revolver to his body and asked 'Are you tired of me? Why don't you just go ahead and pull the trigger!'; that she turned and 'he had the gun half-cocked, and when I said 'I am not pulling', he said he would, and all at once a 'boom". Deceased had pressed the pistol to 'his side, stomach or lower part of his body.' She testified deceased was not drunk. He died later in a hospital.

Appellant relies on evidence showing deceased had never before threatened to kill himself, was in good health, had a steady job and no known enemies; and testimony of a police officer that the revolver was a single-action type which must be manually cocked; that it was usually necessary that this type of weapon be fully cocked to fire, but the revolver used by insured could be fired when the hammer was in the halfcocked position. Insured had the pistol in his possession for several days before the occurrence.

The burden of proving that insured's death was by accidental means rested on plaintiff. Plaintiff's own evidence negatived any presumption against suicide. 'The negative of suicide was an element of Plaintiff's case.' Combined American Insurance Co. v. Blanton, Tex.Sup., 353 S.W.2d 847, 849.

We have carefully examined all the favorable circumstances which may be said to support plaintiff's claim and in our opinion the court correctly instucted a verdict.

Appellant complains of exclusion of a copy of a certificate of death signed by a Justice of the Peace, certifying he held an inquest on the day of death, and that death was caused by gunshot wounds. The certificate contained blanks after the words, 'Accident', 'Suicide' and 'Homicide.' An 'X' mark was inserted in the 'Accident' blank. The acting City Registrar of Vital Statistics certified that the document was a true copy of the death certificate. The Justice of the Peace did not testify; he was not present at the shooting, and there is nothing to show the sources or nature of information on which he based the conclusion, or from which he filled the blank.

We are not concerned with the problems of whether death certificates are generally admissible, or whether they are admissible as evidence of cause of death. The question is whether it was reversible error to exclude this certificate under the facts in the present case. More accurately, perhaps, the problem is whether the statement in the certificate would constitute evidence of probative force to raise an issue or support a finding authorizing recovery. Gulf C. & S. F. Ry. Co. v. Deen, 158 Tex. 446, 312 S.W.2d 933, 937. The problem has caused concern, but in our opinion it was not reversible error to exclude the certificate.

Appellant urges it should have been admitted under provisions of Art. 4477, Rules 40a, 41a, 51a and 52a, Vernon's Ann.Tex.Stat. We do not consider reversal may be predicated on Art. 4477 in any event, since the only provision that a copy of a death certificate shall be prima facie evidence of 'the facts therein stated' is Rule 54a thereof, which only applies to copies certified by the State Registrar of Vital Statistics, and not to those certified, as is this, by local registrars.

Rule 41a of Art. 4477 authorizes a Justice of the Peace to state in the certificate only whether the death was 'probably' accidental, suicidal or homicidal. Whether the conclusion of the officer as to such probability is a 'fact' under Rule 54a is considered in Langlitz v. American Nat. Ins. Co., Tex.Civ.Appl., 146 S.W.2d 484, 487, writ dism. c. j., and other authorities listed below.

Appellant argues, however, that the certificate should have been admitted on the issue by virtue of Sec. 1, Art. 3731a, which provides that any written instrument, certificate, record, return or report made by an officer of a governmental subdivision in the performance of the functions of his office shall be 'so far as relevant, admitted in the courts of this State as evidence of the matter stated therein.' The 'certificate' is the only part of the proffered document 'made' by the local registrar. The Justice of the Peace made the 'record, return or report;' and we think Art. 3731a limits the 'matter stated', in the performance of the functions of his office in making the certificate of death, to the statements prescribed by the only statute making this a function of his office. Art. 4477, Rule 41a. 1 Belford, Clarke & Co. v. Scribner, 144 U.S. 488, 12 S.Ct. 734, 36 L.Ed. 514.

We have found no case by a Texas court holding that a statement as to whether death was by accident or suicide in a death certificate by a Justice of the Peace after inquest, or otherwise, is admissible on these issues. 2

Although all do not involve construction of statutes, the following decisions hold directly that such statements are not admissible, or hold that other statements in death certificates or inquest findings are not admissible to show cause of death where that issue is controverted: Boehme v. Sovereign Camp, Woodmen of the World, 98 Tex. 376, 84 S.W. 422; Service Mut. Ins. Co. of Texas v. Banke, Tex.Civ.App., 155 S.W.2d 668, writ refused; Langlitz v. American Nat. Ins. Co., Tex.Civ.App., 146 S.W.2d 484, 487, writ dism. c. j.; American Nat. Ins. Co. v. Fress, Tex.Civ.App., 142 S.W.2d 531, 532, writ dism. c. j.; First States Life Co. v. Ransom, Tex.Civ.App., 110 S.W.2d 143, 145, no writ; Washington Nat. Ins. Co. v. Chavez, Tex.Civ.App., 106 S.W.2d 751, 752, writ dism.; Texas Employers' Ins. Ass'n v. Ritchie, Tex.Civ.App., 75 S.W.2d 942, 944, writ dism.; Dent v. Nat. Life & Acc. Ins. Co., Tex.Civ.App., 6 S.W.2d 195, 196, no writ. Contra: Mutual Life Ins. Co. v. Hayward Tex.Civ.App., 27 S.W. 36, 38, no writ. See also Aetna Cas. & Surety Co. v. Love, 132 Tex. 280, 121 S.W.2d 986; Pan american Life Ins. Co. v. Andrews, 161 Tex. 391, 341 S.W.2d 787, 793; Fite v. State, 158 Tex.Cr.R. 611, 259 S.W.2d 198, 200; Missouri Pacific R. R. Co. v. Harkins, Tex.Civ.App., 346 S.W.2d 910, 914, writ ref., n. r. e.; Tichenor v. Little, Tex.Civ.App., 279 S.W.2d 379, 381, writ ref., n. r. e.; Smith v. Rivere, Tex.Civ.App., 248 S.W.2d 526, 530, no writ; Folse v. Monroe, Tex.Civ.App., 190 S.W.2d 604, 609, writ ref. w. m.; Universal Life & Acc. Ins. Co. v. Ledezma, Tex.Civ.App., 61 S.W.2d 165, 166, writ dism.; Green v. Missouri State Life Ins. Co., Tex.Civ.App., 219 S.W. 552; 46 C.J.S. Insurance Sec. 1337, p 484; McCormick, Handbook of Evidence (1954) p. 616; Norville, Selected Writings on Evidence (1957) p. 918; 16 Minn.L.Rev. 209; 59 Harv.L.Rev. 481, 561; 30 Tex.L.Rev. 112, 118; 96 A.L.R. 324; 20 Am.Jur., Sec. 1027, p. 866; Cum.Supp. 171; 69 A.L.R.2d 1158; cf. 5 Wigmore, Evidence, Secs. 1670 et seq.; 32 C.J.S. Evidence Sec. 638, pp. 497, 498; 159 A.L.R. 181, 191; 24-B Tex.Jur. p. 879.

Although the rule in other jurisdictions is not uniform, the majority rule is summarized in 28 A.L.R.2d 362: 'In many jurisdictions there are statutes providing for the admission in...

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    ...Rule 54a,13 strictly adhered to its requirement that the death certificate be certified by the state registrar. See Armstrong v. Employers Cas. Co., 357 S.W.2d 168, 170 (Tex.Civ.App.—Waco 1962, no writ)(rejecting the argument that certification of a death certificate by a city official was ......
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