Southern Life & Health Ins. Co. v. Medley

• Decision Date: 25 February 1964
• Docket Number: 63-469,Nos. 63-397,s. 63-397
• Citation: 161 So.2d 19
• Parties: SOUTHERN LIFE AND HEALTH INSURANCE COMPANY, and Alabama corporation licensed to do business in the State of Florida, Appellant, v. Keith MEDLEY, Appellee.
• Court: Florida District Court of Appeals

Page 19

161 So.2d 19

SOUTHERN LIFE AND HEALTH INSURANCE COMPANY, and Alabama corporation licensed to do business in the State of Florida, Appellant, v. Keith MEDLEY, Appellee.

Nos. 63-397, 63-469.

District Court of Appeal of Florida, Third District.

Feb. 25, 1964.

Dixon, DeJarnette, Bradford, Williams, McKay & Kimbrell and John W. Thornton, Miami, for appellant.

Gertler & Frank, Miami Beach, for appellee.

Before CARROLL, HORTON and HENDRY, JJ.

HENDRY, Judge.

Defendant appeals from a jury verdict of the Civil Court of Record returned in favor of plaintiff-appellee, and a post-judgment awarding of attorney's fees to appellee. These two appeals have been consolidated and will be disposed of in this opinion.

Appellee is the beneficiary of an insurance policy issued by appellant upon the life of Nadean Medley. This policy had a double indemnity provision for external, violent and accidental death, but provided for no liability in the event insured's death was self-inflicted.

Nadean Medley died on July 4, 1962 on U. S. #1 between Perrine and Homestead, Florida about 11:00 P.M. when she 'fell' from the moving automobile of Ernest Robinson. Appellant claimed that she jumped causing her own death, and appellee asserted she fell, thereby dying accidentally. Appellee instituted this action to recover the difference between the face amount of the policy, which was paid, and the double indemnity amount.

Ernest Robinson testified, in appellee's behalf, that he did not see Nadean Medley leave the car, he just '* * * felt the wind come out of the door. I know the door was open, so I looked. She was gone so I pulled to the side of the road and stopped.' During cross-examination appellant sought to impeach this statement by showing that the witness had made a prior inconsistent statement to police officers, who investigated this event. Appellant sought to introduce the testimony of two police officers and the deposition of Ernest Robinson to establish that Robinson had said he saw her jump from the car. Appellee objected to this testimony and the trial court sustained the objection on the basis of § 317.17 Fla.Stat., F.S.A., ¹ to the effect that the statements were privileged. Appellant admits that the statement was clearly within the statutory privilege, but claims error, in that the privilege was waived when appellee introduced into evidence a certified copy of the coroner's death certificate which stated that the deceased jumped from a moving automobile.

We can not agree with appellant's contention. The statements made by the witness were privileged, and this privilege was not waived, nor could this proffered testimony be permitted into evidence for impeachment purposes. ² We agree with appellant that this privilege is capable of waiver, but we fail to find any evidence of the necessary acts that constitute waiver here. The direct examination of the witness Robinson, reveals no such act, and appellant admits that appellee's counsel made timely objection to prevent waiver during cross-examination. There is some question as to whether appellee's counsel could waive this privilege which inured to the witness, and not appellee.

The trial court committed error by permitting into evidence those portions of the death certificate that represented hearsay. ³ This situation is clearly controlled by the Kincaid case, note 3, supra, wherein the First District Court of Appeal outlined the applicable law:

'The prevailing rule in Florida and elsewhere is that the coroner's finding or verdict is not admissible in an insurance action on the issue of suicide. [Citations omitted].' 145 So.2d at 275.

The trial court should not have permitted the answers to questions 20a and 20b of the death certificate into evidence. When the legislature adopted § 382.35(6), Fla.Stat., F.S.A., they did not change any of the substantive provisions of the law of evidence, they merely made procedural changes. The coroner could not have testified that the death was 'probably accident' nor to the fact that 'deceased jumped out of a moving motor vehicle, during argument' because from the coroner such testimony would have been hearsay. ⁴ It necessarily follows that the same statement on a piece of paper in no way increases the statement's probative value. The statute provides that all the 'facts' in the death certificate shall be prima facie evidence to the facts therein stated. The two statements of the coroner of the medical examiner on the death certificate did not constitute 'facts', but unverified opinion which was not entitled to judicial consideration.

It naturally follows that, inasmuch as it was error to allow these portions of the death certificate into evidence, it was also error to charge the jury that they were prima facie evidence of the cause of death. ⁵

Further, the determination that these portions of the death certificate should have been excluded, disposes of appellant's argument that the privilege under § 317.17 Fla.Stat., F.S.A. was waived by introducing the certificate into evidence with this statement on it. The fact that the statement is inadmissible precludes the possibility of waiver by appellee.

In view of the fact that a new trial will be required, we will consider several other aspects of this case. The trial court incorrectly charged the jury in regard to the burden of proof required by each party. ⁶

The burden of proof in a situation such as this seems confusing and at times, incapable of clear expression and presentation to a jury. A summary of the development of this area of the law seems in order.

The Florida Supreme Court considered the burden of proof in a suit on an insurance policy to recover the double indemnity provision of a life policy in Mutual Life Ins. Co. of New York v. Johnson, 122 Fla. 567, 166 So. 442, and stated:

'* * * [T]he burden was on respondent, plaintiff in the action, to prove that death resulted from accidental means. To invoke the presumption of law against suicide in support of this issue, some evidence must be introduced consistent with the hypothesis of death by accidental means. The presumption of law against suicide is rebuttable and gives way when the cause of death is known and when the physical facts and circumstances are wholly inconsistent with any theory or hypothesis of death by accidental means. It prevails when the cause of death is unknown.' [Emphasis supplied.] 166 So. at 445.

This case would seem to affirm the instruction given by the trial judge in regard to the burden of proof, and in Gulf Life Ins. Co. v. Weathersbee, 126 Fla. 568, 172 So. 235, the court followed Johnson, supra, by stating:

'Presumption against suicide is not evidence, but controls the result when there is lack of competent evidence to show death by suicide and also controls in cases of death by unexplained violence if defendant relies on suicide and fails to go forward with proof thereof on that point.' 172 So. at 237.

The Supreme Court next considered this problem in Police & Firemen's Ins. Ass'n v. Hines, 134 Fla. 298, 183 So. 831, wherein the court, citing Johnson as its support, upheld the following jury charge:

'The [c]ourt charges you that because the evidence establishes the fact that Johnie Needam Hines died from a self-inflicted pistol shot, you are not on that account to assume that the shot was intentionally self-inflicted. That is you are not on that account to assume that the deceased was a suicide. Such is not the law. On the contrary, under the law there arises a presumption that a self-inflicted would producing death was a result of an accident, rather than from a premeditated design to effect one's death. But this presumption may be overcome or rebutted by proof satisfactory to the jury that the act causing death was in fact intentionally committed. Then the presumption of accident disappears.' 183 So. at 833.

As of 1938, when the Hines case, supra, was decided the law seemed to be wellsettled that a presumption against suicide would operate in favor of the plaintiff, and all that was necessary to entitle plaintiff to get to the jury would be a showing of death, plus some evidence of accident contributing thereto. The following year, however, the Supreme Court decided Anderson v. New York Life Ins. Co., 140 Fla. 198, 191 So. 307 wherein it stated:

'The plaintiff in error relies on Mutual Life Insurance Company of New York v. Johnson, 122 Fla. 567, 166 So. 442, for reversal. [Lower court had directed a verdict for defendant insurance company at the end of the plaintiff's case.] The burden was first on the plaintiff to prove that the deceased came to his death by accidental means, this being her reliance for recovery. The defense of suicide must overcome this proof and may not come into the picture if a prima facie case on the basis of accidental death is not made. The evidence has been examined and while we do not feel called on to review it, we see not theory on which it would support a verdict for double indemnity. A prima facie case not having been made on the ground claimed, but burden did not shift to the defendant to overcome that case with evidence on the defense of suicide.' 191 So. at 308.

The facts of the Anderson case, supra, indicated that the deceased was found dead in a latrine at the back of his residence with a bullet through his head and his pistol by his feet. This case seemed to be directly in the face of Johnson, Weathersbee and Hines.

After the Anderson case, the Federal Court of Appeals for the 5th Circuit in Scales v. Prudential Ins. Co. of America, 109 F.2d 119 (5th Cir. 1940), held the burden of proving accidental death, thereby precluding suicide, was on the plaintiff, and went on to say that this was the law of Florida and the federal courts, and the apparent conflict between the Johnson and Anderson cases was explained in Travelers' Ins. Co....