Biro v. Prudential Ins. Co. of America

• Decision Date: 29 May 1970
• Parties: Lorraine G. BIRO, Plaintiff-Respondent, v. PRUDENTIAL INSURANCE COMPANY OF AMERICA, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 391

110 N.J.Super. 391

265 A.2d 830

Lorraine G. BIRO, Plaintiff-Respondent, v. PRUDENTIAL INSURANCE COMPANY OF AMERICA, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued March 2, 1970.

Decided May 29, 1970.

Richard H. Woods, Toms River, for defendant-appellant (Hiering, Grasso, Gelzer & Kelaher, Toms River, attorneys; Thomas F. Kelaher, Toms River, on the brief).

Benjamin Weiner, New Brunswick, for plaintiff-respondent (Weiner & Schoifet, New Brunswick, attorneys; Mr. Edward J. Egan, New Brunswick, on the brief).

Before Judges GOLDMANN, LEWIS and MATTHEWS.

The opinion of the court was delivered by

LEWIS, J.A.D.

Plaintiff, as beneficiary, instituted suit against defendant, carrier on a policy of life insurance, seeking the face amount thereof and accidental death benefits. Defendant denied liability on both counts, contending that the insured, plaintiff's husband Robert Biro, had committed suicide. The accidental death claim was abandoned during trial and the jury returned a verdict in plaintiff's favor for the policy amount of $25,000, plus interest and costs.

The background facts are uncomplicated. On Sunday, April 16, 1967, shortly after 11 P.M., plaintiff discovered her husband in the garage of their home, in back of the steerng wheel of his automobile 'slouched over to the passenger side,' in an unconscious condition. The motor of the car was running, the doors of the garage were closed, and it was 'smoky' with noxious fumes. Plaintiff and a neighbor who came to her assistance, noticed an odor of alcohol about Robert and, believing him to be drunk, they carried him through the den, adjacent to the garage, and placed him on a couch in the family room. After the neighbor left and plaintiff supplied a pillow and covered her husband with a blanket, she went to bed. Unable to awaken him in the morning she telephoned her father and summoned the local First Aid Squad. The family physician was called, and he pronounced Robert dead.

The death was investigated by State Trooper Walsh and Dr. Malcolm Gilman, then Monmouth County Physician (a position now designated as Monmouth County Medical Examiner).

Walsh testified that three empty pill containers, a broken glass and a pint bottle of blackberry brandy, 1/4 full, were found on the desk in the den, and 'on a fold' in the blotter there was a small white piece of notepaper with pencil writings thereon. He also stated that the car was a 1966 (Sic 1967) Pontiac which

showed no physical signs of being worked on. There were no tools inside of the car (within view) or layin (sic) outside of the car, although tools were on a bench and hanging on the walls of the garage. The deceased's hands showed no signs of dirt or grease. The hands were clean. The car was spotless inside as well as it was outside.

An autopsy performed by Dr. Gilman revealed that the physical cause of death was asphyxiation by carbon monoxide and alcohol.

Plaintiff testified that her husband was 26 years of age. He constantly 'worked on his car' and would, upon occasion, tune up the engine in the garage, always leaving the garage door open 'slightly.' She admitted that for a period of time preceding his death there had been serious marital discord. Nevertheless, she stated that their disagreements had been resolved, that Robert had just purchased a part-interest in a tavern, they had planned a vacation motor trip to begin the following Tuesday or Wednesday and that her husband was to have commenced working full time at the tavern upon his return from vacation.

In her testimony plaintiff said that Robert was a 'very heavy' drinker and that prior to his death he had been drinking to excess. She further testified that on the evening of April 16 she and Robert ate a pizza pie and 'had a couple of beers.' She then put their daughter to bed, while Robert had another few drinks and went into the garage (dressed in his bathrobe, underwear and slippers) to check the windshield wipers and radio of the automobile in preparation of their trip. While she was watching a television movie she heard the motor of the car turned on and off several times. At the end of the picture she went to the garage to inform Robert that the 'show' was over, at which time she found him in the car in the condition mentioned above.

The report from the State Police Laboratory was introduced into evidence. It indicated that Robert's blood sample contained 45% Carbon monoxide hemoglobin and 0.046% Ethyl alcohol (an amount of alcohol which statutorily gives rise to the presumption that one driving an automobile in such a condition is not under the influence of intoxicating liquor. N.J.S.A. 39:4--50.1). Moreover, the laboratory report indicated that there was an absence of any librium or any barbiturate traces in the stomach of the deceased.

Defendant alleges on appeal that the trial court erred in refusing to admit into evidence (1) the official certificate of death, (3) the opinion of Dr. Gilman as to the cause of death, (3) an opinion by Trooper Walsh as to the cause of death, and (4) a note found on decedent's desk in his den. These points will be considered seriatim.

(1)

The death certificate was signed on April 17 by the county physician who noted therein that death was due to 'carbon monoxide, alcohol and librium.' The doctor checked with an 'X' the suicide block (one of three blocks, accident-suicide-homicide) above the words 'to the best of my knowledge,' thus indicating his opinion that decedent had committed suicide. The trial court refused to admit the death certificate into evidence, although it did admit in evidence the State Police Laboratory report which bore the heading, 'Michael J. Biro Apparent Suicide.'

The records of a county medical examiner are viewed with such a degree of trustworthiness and reliability that they are 'considered public records' and 'shall be received in any court in this State as evidence of The matters and facts therein contained.' N.J.S.A. 40:21--30.10. (Emphasis added.) Cf. N.J.S.A. 52:17B--92. The much broader statute, N.J.S.A. 2A:82--12, which relates to all 'copies and records of returns of vital statistics,' declares that any original certificate 'shall be received as prima facie evidence of the facts therein stated * * *.' These statutes iterate the public record exception to the hearsay rule now embodied in Evidence Rule 63(15). See Aitken v. John Hancock Mutual Life Ins. Co., 124 N.J.L. 58, 60, 10 A.2d 745 (E. & A. 1940).

Recently our Supreme Court considered these legal principles in a manslaughter case, State v. Reddick, 53 N.J. 66, 68, 248 A.2d 425 (1968), and held that a trial judge correctly admitted into evidence a report of the medical examiner, who had died prior to trial after excising from it all matters of opinion as to the cause of death. Nonetheless, the question of the admissibility of such evidence in a suit to enforce an insurance contract, wherein the defense of suicide is raised, is one of novel impression in New Jersey. The one case in which this issue lurked in the record was decided prior to our present evidence rules and failed to resolve the precise question before us. See Devlin v. Surgent, 18 N.J. 148, 155, 113 A.2d 9 (1955).

Suicide is, generally speaking, a defense to the enforcement of an insurance policy. 43 Am.Jur.2d, Insurance, § 1195, at 1112 (1969). There is a divergence of opinion in decisions of other jurisdictions that have wrestled with the problem of admitting a death certificate as Prima facie proof of a suicide death. See 5 Wigmore, Evidence (3d ed. 1940), § 1646, at 586; Annotation 21 A.L.R.3d 418, 449--456 (1968).

A review of the cases precluding admission indicates that the exclusion was generally predicated on either (1) the lack of a statute making such a report presumptive evidence of the 'matters and facts' therein stated, see New York Life Ins. Co. v. Anderson, 66 F.2d 705, 706 (8 Cir. 1933); Carson v. Metropolitan Life Ins. Co., 156 Ohio St. 104, 100 N.E.2d 197, 203 (Sup.Ct.1951); World Insurance Company v. Kincaid, 145 So.2d 268, 275 (Fla.App.Ct.1962), cert. den. 157 So.2d 517 (Fla.Sup.Ct.1963); 30 Am.Jur.2d, Evidence, § 1009, at 143 (1967); or (2) the failure of a proper foundation, inherent in the report, to support an opinion, see New York Life Ins. Co. v. Miller, 65 App.D.C. 129, 81 F.2d 263, 268 (1935); Schmidt v. Supreme Council of Royal Arcanum, 207 S.W. 874, 877 (Mo.App.Ct.1919); Morton v. Equitable Life Ins. Co., 218 Iowa 846, 254 N.W. 325, 96 A.L.R. 315 (Sup.Ct.1934); Annotation, 28 A.L.R.2d 353, 364--365 (1953).

In contradistinction, as previously noted, our statutes declare such a report to be Prima facie evidence of the 'official determinations contained therein,' Szumski v. Dale Boat Yards, Inc., 48 N.J. 401, 406, 226 A.2d 11, 13, cert. den. 387 U.S. 944, 87 S.Ct. 2077, 18 L.Ed.2d 1331 (1967), and our evidence rules permit expert opinion on the ultimate issue. Evidence Rule 56(3) provides that 'Testimony in the form of opinions or inferences otherwise admissible under these rules is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of the fact.' See also Report of the New Jersey Supreme Court Committee on Evidence 110 (March 1963). This practice is consonant with many jurisdictions which have admitted death certificates if made pursuant to a statute and the record thereof was properly kept as required by law. Metropolitan Life Ins. Co. v. Butte, 333 F.2d 82, 83 (10 Cir. 1964); Fleetwood v. Pacific Mut. Life Insurance Company, 246 Ala. 571, 21 So.2d 696, 700 (Sup.Ct.1945); Annotation, 96 A.L.R. 324, 324--325 (1935); Cf. State v. Reddick, Supra; Nestico v. D.L. & W.R.R. Co., 4 N.J.Misc. 418, 420, 133 A. 83, 84 (Sup.Ct.1926).

Pragmatically, such proof is mere evidence only and not conclusory. See E.g., Aetna Life Ins. Co. v. McLaughlin, 370 S.W.2d 229, 235 (Tex.Civ.App.1963), rev'd on other grounds 380 S.W.2d 101, 9...