Bozicevich v. Kenilworth Mercantile Co.

• Decision Date: 07 June 1921
• Docket Number: 3518
• Court: Utah Supreme Court
• Parties: BOZICEVICH v. KENILWORTH MERCANTILE CO

199 P. 406

58 Utah 458

BOZICEVICH v. KENILWORTH MERCANTILE CO

No. 3518

Supreme Court of Utah

June 7, 1921

Rehearing Denied July 20, 1921.

Appeal from District Court, Third District, Salt Lake County; W. H Bramel, Judge.

Action by Lucas Bozicevich against the Kenilworth Mercantile Company. Judgment for defendant, and plaintiff appeals.

AFFIRMED.

Jos. W Rozzelle, of Salt Lake City, for appellant.

Wasson & Fisher, of Salt Lake City, for respondent.

FRICK, J. CORFMAN, C. J., and THURMAN, J., concur. GIDEON, J., WEBER, J., dissenting. GIDEON, J., concurring in the order denying petition for rehearing.

OPINION

FRICK, J.

This action was originally commenced by the plaintiff, hereinafter called appellant, against the Independent Coal & Coke Company, the Crescent Ice Cream Company, and the Kenilworth Mercantile Company, all corporations. The action as to the first two defendants was dismissed in the lower court, and the Kenilworth Company, hereinafter called respondent, is the only party defendant in the case and the only one defending in this court.

The appellant brought the action to recover damages for the death of his minor child, a boy six years of age, whose death, it is alleged, was caused from eating unwholesome and poisonous ice cream which was sold and delivered by respondent to appellant and which resulted in ptomaine poisoning which caused the child's death. The respondent denied the alleged unwholesomeness and poisonous character of the ice cream and that the child's death was caused from eating the same. A trial to a jury resulted in a verdict in favor of the respondent. Judgment was duly entered on the verdict. From that judgment this appeal is prosecuted.

While appellant's counsel has assigned a number of errors, yet the one that is principally relied on arose as follows: At the trial, after appellant had presented his case, the respondent called the physician who attended the deceased child during its last illness. After the doctor had qualified himself under the statute to testify, he was asked whether there had been any other cases of ptomaine poisoning in the vicinity where the child lived on or about the time the child was suffering from ptomaine poisoning and whether he had attended the child during its last illness. The doctor answered that he attended the child at the time inquired about, and that as far as he knew there were no other cases of ptomaine poisoning in the vicinity at that time. Counsel for respondent then said that he felt some delicacy in asking the doctor further questions in view of our statutory provisions which make the attending physician's testimony without the consent of his patient incompetent, and asked counsel for appellant whether he insisted upon his statutory rights. Appellant's counsel answered by stating that he wanted the examination "kept within the statutory limits." Respondent's counsel then desisted from asking the doctor further questions relative to the child's illness or condition, but asked him whether he had made and signed a death certificate after the child had died, which the doctor answered in the affirmative. Counsel then asked the doctor this question: "In signing that death certificate you gave your very best judgment as to the cause of death?" The question was objected to by appellant's counsel, and the objection was sustained. No further matters of substance were elicited from the doctor by respondent's counsel. Appellant's counsel then proceeded to cross-examine the doctor with regard to some matters, after which respondent's counsel offered in evidence the death certificate after the same was identified, which the attending physician had made, signed, and filed in pursuance of and as required by our statute. The certificate was objected to by appellant's counsel, but the court overruled the objection and admitted the certificate in evidence. Appellant's counsel excepted to the ruling, and now strenuously insists that the court erred in admitting in evidence the death certificate, and that the error was prejudicial to appellant's rights.

Did the court err in admitting the death certificate?

A majority of this court is of the opinion that no error was committed in admitting the death certificate in evidence. We think the ruling is sustained not only by our statute, to which we shall refer later, but also by the rule prevailing at common law. Comp. Laws Utah 1917, § 5838, adopts the common law of England "so far as it is not repugnant to * * * the Constitution and laws of this state." The records of births, deaths, and marriages, when properly kept as required by law, have, from time immemorial, been recognized as public records, and, as such, were admissible in evidence for certain purposes. The law in that regard is well stated in 3 Jones, Comm. Ev., § 508. The author quotes the following from Stephen on Evidence:

"An entry in any record, official book, or register kept in any state, or at sea, or in any foreign country, stating, for the purpose of being referred to by the public, a fact in issue or relevant, or deemed to be relevant thereto, and made in proper time by any person in the discharge of any duty imposed upon him by the law of the place in which such record, book, or register is kept, is itself deemed to be a relevant fact."

The author then proceeds as follows:

"And the law here is practically the same. The cases are numerous that the entries are competent evidence where the nature of the office seems to require them and whether the duty to make them is enjoined by statute or by a superior officer in the performance of his duty. So long as the one making them was in discharge of a public and official duty in so keeping the book of entry, it is sufficient. Such entries are generally made by those who can have no motive to suppress the truth or to fabricate testimony. Moreover, in many cases they are made in the discharge of duty, pursuant to an oath of office. In his work on Evidence, Taylor mentions a large number of books of this character which the law recognizes as official registers; for example, among others, parish registers, registers of births, marriages, and deaths, made pursuant to the registration acts, land tax assessments, bishops' registers, books kept at public prisons, official logbooks, books kept by the coast guard showing the state of wind and weather, registers of parliamentary votes, customhouse revenue books, and books of other public offices."

The author further states that at common law such records "were admissible" if it "be shown that they were required by law as kept for public benefit," and continues further:

"In the United States somewhat greater latitude seems to have been allowed; and it has frequently been held that such entries are admissible if made in the course of official duty, although not required to be made by law."

In speaking of the probative effect of such records, it is said:

"Although such records are admissible, they do not in general import absolute verify, but are treated as prima facie evidence of the facts entered and of the documents recorded."

See 3 Jones, Comm. Ev., §§ 508, 509, 511.

Mr. Wigmore, in his unexcelled work on Evidence (volume 3, §§ 1642 to 1646, inclusive), clearly states the reasons why and the purposes for which such records are admissible as evidence of the facts stated therein.

The contents of such records have therefore been received as prima facie evidence for at least several centuries.

The Legislature of this state has, however, not only adopted the common law, but has extended the same respecting the registering or recording of births and deaths, and has enacted special provisions with respect to when, how, and for what purpose certified copies of such records shall be admissible as prima facie evidence of the facts therein stated. Comp. Laws Utah 1917, § 5045, provides that a death certificate shall be made and signed by the attending physician, and, after providing for certain matters to be stated therein, it is provided that the physician--

"shall further state the cause of death so as to show the course of disease or sequence of causes resulting in death, giving the primary and immediate causes, and also the contributory causes, if any, and the duration of each. Indefinite and unsatisfactory terms indicating only symptoms of disease or conditions resulting from disease will not be held sufficient. * * *"

That section also provides a specific form of death certificate indicating each particular fact or matter that must be stated therein. In order to compel prompt and truthful statements on the part of the physician, section 5059 provides for penalties for a failure to make a certificate or for making incorrect statements therein respecting the cause of death or the other things required to be stated by the physician. Penalties are also provided for the failure of the registrar to comply with the provisions of the statute. The statute also provides:

"The state registrar shall, upon request, furnish any applicant a certified copy of the record of any birth or death registered under provisions of this title. * * * And any such copy of the record of a birth or death, when properly certified by the state registrar to be a true copy thereof, shall be prima facie evidence in all courts and places of the facts therein stated." Section 5958.

Every precaution is taken to obtain a correct statement of the cause of death and that the physician's certificate shall be properly recorded. The purpose of the statute, therefore is to obtain and to record the true, the real, cause of death. We can conceive of no method or plan whereby greater certainty respecting the true cause of death could be attained. Moreover, if the plaintiff, in a...