Liberty Nat. Life Ins. Co. v. Power
| Decision Date | 27 October 1965 |
| Docket Number | No. 40895,3,2,Nos. 1,40895,s. 1 |
| Citation | 145 S.E.2d 801,112 Ga.App. 547 |
| Parties | LIBERTY NATIONAL LIFE INSURANCE COMPANY v. Lelia W. POWER |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1, 2, 3. The trial court did not err in denying defendant's motion for new trial on the general grounds of the motion or in denying defendant's motion for judgment notwithstanding the verdict.
4. (a) A death certificate which is filed more than 72 hours after death or after the body is found is not completed in full compliance with Code Ann. Ch. 88-11
(b) A death certificate which is completed, neither by an attending physician under Code Ann. § 88-1116(2) nor by a coroner or person acting as such under Code Ann. § 88-1116(4), but by a medical examiner under Code Ann. Ch. 21-2 or by an 'assistant medical examiner,' is not completed in compliance with Code Ann. Ch. 88-11.
(c) A death certificate is not admissible into evidence to prove particular matters stated in the certificate, (1) where the statement is based on hearsay and not upon the personal knowledge of the physician or official completing the certificate or, (2) where the statement is a statement of opinion to which the physician or official would not be qualified to testify personally.
(d) A death certificate which is not completed in full compliance with Code Ch. 88-11 does not come within an exception to the hearsay rule provided by Code Ann. § 88-1118, and has no probative value even if admitted without objection.
(e) The trial court did not err in refusing to admit into evidence a death certificate which was not completed in full compliance with Code Ann. Ch. 88-11 and which was offered for the purpose of proving, by a statement of opinion contained in the certificate, that the insured's death was due to suicide.
5. An objection which shows no more than that evidence is not prima facie evidence, is not a valid objection to admission of the evidence.
6, 7. The trial court did not err in giving the charges considered in these divisions of the opinion.
8. A general assignment of error objecting to a charge is not good when the charge contains several distinct propositions, one or more of which are correct in the abstract.
This is an action upon an accident insurance policy. The named beneficiary, Lelia W. Power, filed suit against the insurer, Liberty National Life Insurance Company, to recover benefits payable under the policy for the accidental death of James Power, the insured.
Upon trial of the case the insurer based its defense upon the contention that the insured's death was produced by suicide, not by accidental means as required by the policy. The jury returned a verdict for plaintiff. Defendant brought exceptions to this court assigning error upon judgments of the trial court denying defendant's motion for judgment notwithstanding the verdict and denying defendant's amended motion for new trial.
This court, in Liberty Nat. Life Ins. Co. v. Power, 111 Ga.App. 458, 142 S.E.2d 103, reversed the judgment of the trial court denying defendant's motion for judgment notwithstanding the verdict. The Supreme Court granted plaintiff's application for certiorari, and in Power v. Liberty Nat. Life Ins. Co., 221 Ga. 305, 144 S.E.2d 389, reversed the judgment of this court. The case has been remanded to this court for further action.
Smith, Ringel, Martin, Ansley & Carr, H. A. Stephens, Jr., Atlanta, for plaintiff in error.
Robert Carpenter, Ferrin Y. Mathews, A. Tate Conyers, Atlanta, for defendant in error.
1. The Supreme Court has approved as a correct analysis of the law on the issue of suicide the enumerated rules set forth in division 1 of the opinion of this court in the case of Liberty Nat. Life Ins. Co. v. Power, 111 Ga.App. 458, 462-464, 142 S.E.2d 103. The Supreme Court also has approved the statements of law written by Judge Jordan in his dissent. Ibid, p. 466, 142 S.E.2d 103. For the Supreme Court decision validating these legal principles see Power v. Liberty National Life Ins. Co., 221 Ga. 305, 144 S.E.2d 389.
2. The reversal by the Supreme Court of the judgment of this Court entered in the Power case, supra, was based solely on the Supreme Court's holding that the facts in the case set forth a jury issue and did not demand (as this court held) a verdict for the defendant insurer.
3. Our decision upon the general grounds of the motion for new trial and on the motion for judgment notwithstanding the verdict is controlled by that of the Supreme Court in Power v. Liberty Nat. Life Ins. Co., 221 Ga. 305, 144 S.E.2d 389, supra. The trial court did not err in denying a new trial upon the general grounds of the motion or in denying the defendant's motion for judgment notwithstanding the verdict.
4. It is now necessary for us to consider the remaining grounds of the motion for new trial.
Special ground 4 assigns as error the ruling of the court excluding from evidence a certificate of the death of the insured signed September 6, 1962 by 'Henry M. Snell, M.D., for Tom Dillon, M.D., Medical Examiner.' This death certificate shows that the immediate cause of death was 'Contact gunshot wound of head with destructive brain damage,' that the injury occurred through 'Self-inflicted gunshot wound head,' and that death was due to suicide. The certificate also shows that it was received by the local registrar on September 19, 1962.
There are several cogent reasons why the ruling complained of was not erroneous:
(a) Code Ann. § 8-1118, provides that certificates filed under the provisions of Code Ann. Ch. 88-11, pertaining to the registration of births and deaths, 'shall be prima facie evidence of the facts stated therein.'
Such a statute is in derogation of the common law. Mutual Life Ins. Co. of New York v. Bell, 147 Fla. 734, 3 So.2d 487; Bishop v. Shurly, 237 Mich. 76, 211 N.W. 75. Being in derogation of common law, it must be strictly construed. Foster v. Vickery, 202 Ga. 55, 60, 42 S.E.2d 117 and citations. Where the certificate is not completed in accordance with the statutory requirements, it is not prima facie evidence of the facts stated therein. Bituminous Cas. Corp. v. Elliott, 70 Ga.App. 325, 330, 28 S.E.2d 392; Aetna Cas. & Surety Co. v. Pulliam, 99 Ga.App. 406(1), 108 S.E.2d 823; Troup County v. Henderson, 104 Ga.App. 29, 35, 121 S.E.2d 65; Davison v. National Life & Acc. Ins. Co., 106 Ga.App. 187, 192, 126 S.E.2d 811.
Code Ann. § 88-1116(1) provides: 'The person in charge of interment shall file, with the local registrar of the district in which the death occurred or the body was found, a certificate of death within 72 hours after death or the body is found.' The certificate excluded from evidence shows on its face that it was filed on September 10, 1962, considerably more than 72 hours after the death, which occurred in the early hours of September 1, 1962, and was at that time known to have occurred. The death certificate was not completed in full compliance with Code Ann. Ch. 88-11.
(b) The certificate failed to comply with the provisions of Code Ann. Ch. 88-11 for an additional reason. The record shows that Dr. Snell was acting as an 'assistant medical examiner.'
Code Ann. Ch. 21-2 () provides for the completion of death certificates by officially designated medical examiners in certain instances. While section 10 of the Act of 1960 (Ga.L.1960, pp. 1009, 1019) specifically repealed the previous law comprising Code Ann. § 88-1116(3), the Act contains no language which in any degree purports to amend Code Ann. Ch. 88-11 (). This observation is true notwithstanding the statement in Davison v. National Life & Acc. Ins. Co., 106 Ga.App. 187, 190, 126 S.E.2d 811, supra, in which it was erroneously assumed that the Act of 1960 did amend Code Ann. Ch. 88-11.
Under the provisions of Code Ann. Ch. 88-11, the only persons who may complete death certificates (other than in cases of fetal death) so as to make them 'prima facie evidence of the facts stated therein' are the 'physician last in attendance upon the deceased' (Code Ann. § 88-1116) and the 'coroner, or person acting as such' (Code Ann. § 88-1116(4)). Doctor Snell was not an attending physician, as James Power was already dead when first seen by Dr. Snell. Nor was Dr. Snell a coroner, or person acting as coroner.
Since the Act of 1960 did not amend Code Ann. Ch. 88-11, the strict construction required of Code Ann. § 88-1118 does not permit the use of a death certificate completed by a medical examiner under provisions of the Act of 1960 as prima facie evidence of facts stated in the certificate. Even if it did, the instant case would not come within the Act of 1960, for the Act contains no provision giving Dr. Snell as an 'assistant medical examiner' the authority to complete death certificates for the medical examiner.
(c) The fault of evidence admitted under Code Ann. § 88-1118 is that it is hearsay evidence, and thus, this provision amounts to an exception to the hearsay rule. This initial fault is further compounded by including in the certificates statements based on hearsay--that is, upon information supplied by other persons to the person completing the certificate--and by including in the certificates statements of conclusions of the person completing the certificate, which may be either conclusions based upon hearsay or conclusions as to which the person completing the certificate would not be qualified as an expert or otherwise to testify personally.
The language of Code Ann. § 88-1118 makes a death certificate completed and filed in accordance with the provisions of Code Ann. Ch. 88-11 'prima facie evidence of the facts stated.' This necessarily means that only 'facts' contained in the certificate are accorded the dignity of constituting prima facie evidence. While Code Ann. § 88-1116(4) requires the...
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