Sorrow v. Industrial Life & Health Ins. Co.

• Court: Alabama Supreme Court
• Writing for the Court: PER CURIAM; The foregoing opinion was prepared by FOSTER; LIVINGSTON
• Citation: Sorrow v. Industrial Life & Health Ins. Co., 68 So.2d 43, 259 Ala. 544 (Ala. 1953)
• Decision Date: 29 October 1953
• Docket Number: 6 Div. 983
• Parties: SORROW v. INDUSTRIAL LIFE & HEALTH INS. CO.

Page 43

68 So.2d 43

259 Ala. 544

SORROW v. INDUSTRIAL LIFE & HEALTH INS. CO.

6 Div. 983.

Supreme Court of Alabama.

Oct. 29, 1953.

Hare & Parsons and R. Clifford Fulford, Birmingham, for appellant.

H. H. Grooms and Spain, Gillon, Grooms & Young, Birmingham, for appellee.

The following charge was given for defendant:

'10. The Court charges you, Gentlemen of the Jury, that while it is true that in the absence of any proof to the contrary, that the presumption of fact is that the deceased, Guy B. Sorrow, did not commit suicide, yet when defendant introduced in evidence the certified copy of the record of the deceased's death kept in the office of the Bureau of Vital Statistics, the effect of this certificate is to prove prima facie that deceased came to his death by suicide, and if plaintiff contends that the deceased did not so come to his death, the burden of proof was cast by said certificate upon the plaintiff to prove to the reasonable satisfaction of the jury that deceased's death was due to some other cause than suicide.'

PER CURIAM.

Appellant was plaintiff in the circuit court, suing appellee on a policy of life insurance on the life of her late husband.

The defense was that of suicide within two years after the issuance of the policy. The policy provided that if insured should take his own life within said period defendant shall be liable for a sum equal to the premiums that have been paid thereon and no more. This amount was claimed to be $216.01 which had been tendered.

There was a jury and verdict for defendant on the issue of suicide. There was no contention but that he died within two years after the issuance of the policy. The circumstantial evidence tended to prove suicide.

The first assignment of error goes to the act of the court in overruling plaintiff's objection to a certificate headed: 'Jefferson County Board of Health: Bureau of Records and Vital Statistics: Birmingham, Alabama'. 'Standard Certificate of Death' 'State of Alabama'. A blank form was used with the information inserted apparently with a typewriter. It is signed in the name of the health officer by 'Geo. V. Truss, Registrar of Vital Statistics'. This document contains what purports to be a 'medical certificate' with the name of J. G. Galbraith, M. D., written also with the typewriter. The first part of it material to the issue of suicide was what purports to be an answer to the inquiry of the 'immediate cause of death', to be 'gunshot wound of brain', and in answer to whether it was an accident, suicide or homicide, stated 'suicide'.

The second assignment of error relates to that feature of the document which specifies 'suicide' as the cause of insured death.

The third assignment of error is the alleged error of the court in charging the jury that they might consider the death certificate as prima facie evidence of suicide: to which there was no exception.

So that, in this connection the question relates to assignments of error one and two, supra, and they relate only to the question of the admissibility in evidence of the certified copy of the record of the bureau of records and vital statistics, as to the cause of the death of insured as suicide.

Title 22, §§ 25 and 42, as amended by the Act of July 9, 1943, seem to influence the question presented by assignments of error one and two, supra. Section 22 of Title 22 provides for a local registrar of vital statistics. Section 23 requires a burial permit to be issued by the local registrar for the burial of a dead body. Section 25 as amended by the Act of July 9, 1943, Pocket Part Code, requires as a condition to the burial permit, supra, a certificate of death. The undertaker shall obtain such certificate upon information from a person best qualified to supply it to be signed by the informant. The undertaker shall present the certificate to the attending physician, if any, for a medical certificate of the cause of death and other particulars. He (the undertaker) shall then state the facts required relative to the date of death, date and place of burial or other disposition, with his signature, and present the completed certificate to the local registrar. Only upon those requirements may the local registrar issue the necessary burial permit. The medical certificate shall specify various matters, including the cause of death. If the cause of death be violence it shall be carefully defined, and the means shall be stated and whether (probably) accidental, suicidal or homicidal. Section 23, supra, appears to give detail of requirements to obtain a burial permit from the local registrar.

Assignments of error 1 and 2 have reference to the certificate of death by the health officer acting by the registrar of vital statistics, which contains a copy of the doctor's certificate. This certificate is controlled by sections 25 and 42, Title 22, as amended, and recites that it is issued under that authority. No objection was made as to its due execution. Objection was made to it as a whole (record page 157), and to the answer to 22(a), 'accident, suicide or homicide', on general grounds and because it is a conclusion invading the province of the court and jury, and because no official certificate of the coroner appears, for that the city detective making the coroner's report was not so authorized nor qualified and did so without investigation, and it is no part of the death certificate offered in evidence made by the health officer.

The objection so made was overruled and exception noted. The court thereupon explained to the jury that although 'that is an official looking document with a seal it is not conclusive. It is just evidence like everything else to be considered by you, but because it does have that seal and certificate, it is not conclusive, and you are not bound by it. You are to consider it like you would any other evidence.' In the court's oral charge at the conclusion of the evidence he stated to the jury that 'the defendant has introduced in evidence a certified copy of the death certificate which is on file in the bureau of vital statistics of this county'; and 'the introduction of that certificate makes out what we call from a legal standpoint, a prima facie case'; explaining that term to mean 'not as an absolute proof of it, but that established the fact there was, according to the official records, a suicide, and unless the other testimony overcomes it, then that would be the conclusion you would reach. But that is not conclusively on you as I stated to you at the time it was introduced. It is merely evidence and prima facie evidence, although it is prima facie evidence, it is (not even) a little bit more than ordinary evidence, it can still be rebutted by all the other testimony in this case.'

There was no exception to that feature of the court's charge. But it is pointed out in the fourth assignment of error that this statement to the jury is the eighteenth ground of the motion for a new trial. But it cannot be error to reverse when no exception was taken to it by plaintiff seeking the reversal. Guy v. Lancaster, 250 Ala. 287, 34 So.2d 499.

Moreover, the argument as to this assignment is based upon the principle urged in brief that the certificate was not admissible. The chief controversy is as to the admissibility of that part of the certificate of the health officer, contained in what purports to be a copy of the certificate of Dr. Galbraith in answer to inquiry No. 22(a) that death was by suicide.

No question is raised on the certificate of death as to its due execution by the proper county authority. Prudential Ins. Co. v. Calvin, 227 Ala. 146(5), 148 So. 837. See amendment of July 9, 1943 to section 42, supra. The certificate recites that it is issued by authority of section 42, Title 22, as amended. That statute provides that such certificate 'shall be prima facie evidence in all courts and places of the facts therein stated', and it authorizes the county health officer to make the certificate.

It is urged that whether the death was by suicide is not a fact stated in the death certificate sufficient to be prima facie evidence of suicide. The certificate of death contains a copy of what purports to be a certificate of Dr. Galbraith, as we have said. The law (section 25, supra) is that the attending physician (Galbraith), if any, should have certified in order to obtain a burial permit. Such certificate is then a matter of record with the board of vital statistics. It is therefore a proper feature of the certificate provided for in section 42, supra, and of the facts recited in it. The record does not otherwise show the certificate which the doctor filed.

There was shown to have been a policy of insurance on the life of decedent in the Columbian Mutual Life Insurance Company, and that plaintiff made proofs to that company showing death by suicide, to which was attached a certificate by one signing as acting coroner, that death was by suicide. Such proofs are only in the nature of admissions by plaintiff who furnished this proof. Cotton States Life Ins. Co. v. Crozier, 216 Ala. 537, 113 So. 615(4); National Life & Accident Ins. Co. v. Puckett, 217 Ala. 110, 115 So. 12.

We revert to the...