Bozicevich v. Kenilworth Mercantile Co. ( 1921 )

PRICK, J.

This action was originally commenced by the plaintiff, hereinafter called appellant, against the Independent Coal & Coke Company, the Crescent lee Cream Company, and the Kenil-worth 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. Prom 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 dctor 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 tbe 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 hoot, 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 hook 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 verity, 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 tbe 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 case like the one at bar, is not satisfied with the statement contained in the certificate of death, he may always contradict the record by any proper evidence. Again, he may always call the attending physician and have him explain, if explanation be deemed necessary. If, therefore, appellant in this case desired to establish the true cause rather than a particular cause of death, 1 the method pointed out by the statute is much more likely to establish the true cause than any other conceivable method. It is inconceivable to the writer that a physician should falsely state the facts respecting the cause of death, and hence there is not a single valid reason why the certificate should not be admitted, at least as prima facie evidence of the facts therein stated. It is true that the physician may be mistaken, but that is always possible, it matters not in what form his statements are received. Nor can there be any question respecting the matters that, under the statute, constitute prima facie evidence. The fqrm of the certificate is made a part of the act itself, and therefore must be followed. There is also provision made that in case the certificate is incomplete or incorrect in any particular the physician may be required to complete or correct it before registration. If, therefore, a certificate conforms to the statute, and is properly certified, there is no room for judicial construction or interpretation respecting its meaning nor to what extent it consitutes prima facie evidence.

The question, however, still remains Avhether the admission of the facts stated in such a certificate as prima facie evidence contravenes Comp. Laws Utah 1917, § 7123, subd. 4, which provides:

“A physician or surgeon cannot, without the consent of his patient, he examined in a civil action, as to any information acquired in attending the patient which was necessary to enable him to prescribe or act for the patient.”

Under the common law, the physician was required to testify respecting his knowledge of all facts relevant and material to any controversy if he was called as a witness, whether for or against the patient. Under the foregoing statute, however, which abrogated the common law, a physician may not testify to the things prohibited by the statute without the consent of his patient. The privilege, however, belongs to the patient, and to him alone. In view that the privilege is merely statutory, however, the Legislature may at any time modify the privilege, or, if in its wisdom it would be for the best interests of the public, it can withhold the privilege altogether. The right is therefore merely statutory, and is subject to change at any time at the will of the Legislature. The privilege in its present form has been in force in this state at least since 1884. See Laws Utah 1884, p. 359. It was in force in a modified form prior to that time. See Comp. Laws Utah 1876, p. 506. Upon the other hand, the act requiring physicians to make certificates of births and deaths in their present form, and requiring the registration of such certificates, and the making of the contents of certified copies thereof prima facie evidence, has been in force only since 1905. See chapter 120, Laws Utah 1905. If, therefore, there is an irreconcilable repugnance or conflict between the act creating the privilege and the provisions of the act making a certified copy of the physician’s certificate prima facie 2 evidence of the facts therein stated, the latter act, under elementary rules of construction, must prevail. As we view the matter, however, there is no irreconcilable conflict, and both provisions may stand and be enforced.

Be that as it may, however, there can be no doubt that the patient may still insist upon his privilege; and the physician may not, without the patient’s consent, testify to information that may mave been imparted to him by the patient or such information as tbe physician may have received in attending the patient, if snch information was necessary to enable the physician to prescribe or act for the patient. When death has overtaken the patient, however, and it becomes necessary for the public good that the cause of his death be made known, and that a public record may be made thereof, then the privilege, to that extent, if it ever existed as against such a certificate, must yield to the public good. In the case at bar the Legislature has therefore not encroached upon any vested right of the plaintiff, and has in no way taken anything from him. Moreover, in this case the very purpose of plaintiff’s complaint is to make known what caused the death of his child. The only difficulty seems to be that the plaintiff desires to establish a particular cause of death. If, however, the cause of the death of his child had not already been made a matter of record, the plaintiff, in bringing this action, is making it as public as it can be made in an ordinary lawsuit. True, he is not satisfied with the cause of death as stated in the physician’s certificate, and, as a matter of law, he is not bound to be. In view, however, that in the public interest the cause of his child’s death has been made a matter of public record and such record has been declared to be prima facie evidence respecting the cause of death, the plaintiff is as much bound by the record and by the statements contained .therein as any other member of the public who may be interested, either directly or indirectly, in the cause of his child’s death. In view of the common-law rule before referred to, and in view of the statute, which is merely a matter of police regulation the wisdom of which is not a judicial question, we can see no escape from the conclusion that the death certificate produced by the defendant in this case was admissible as prima facie evidence of the facts therein stated. When it is kept in mind that no one longer questions the right of the Legislature to declare the facts recited in tax deeds, in tax records, in the state engineer’s certificates respecting water locations, and in records respecting the defective condition of mines, when made a matter of public record, as prima facie evidence of the facts therein recited, it seems almost like an attempt to overthrow long and well-established rules to now hold that under a statute like ours certified copies of death certificates may not be considered as prima facie evidence of the facts therein stated. To that effect is also the great weight of authority. See National Council, etc., v. O’Brien, 112 Ill. App. 40; State v. Pabst, 139 Wis. 561, 121 N. W. 351; McKinstry v. Collins, 74 Vt. 147, 52 Atl. 438; Hennessy v. Metropolitan Life Ins. Co., 74 Conn. 699-706, 52 Atl. 490; Krapp v. Metropolitan Life Ins. Co., 143 Mich. 369, 106 N. W. 1107, 114 Am. St. Rep. 651; Ohmeyer v. Supreme Forest, Woodmen Circle, 91 Mo. App. 189; Andricus’ Adm’r v. Pineville Coal Co., 121 Ky. 724, 90 S. W. 233; Keefe v. Supreme Council, etc., 37 App. Div. 276, 55 N. Y. Supp. 827, and Woolsey v. Trustees, etc., 84 Hun, 236, 32 N. Y. Supp. 543. In many of the foregoing cases certified copies stating the cause of death were admitted upon the sole ground that the original constituted public records and were admissible as such, while in others the decisions are based upon the statute making such records prima facie evidence. The questions involved are well considered in many of the eases cited. The question is also considered in those, cases where, under a statute like ours which prohibits the physician from testifying without his patient’s consent, whether such a statute excludes death certificates and prevents them from being admitted as prima facie evidence. In all of the foregoing cases where the question was passed on it was held that such a statute does not affect the right to consider such certificates as prima facie evidence of the facts therein stated.

In National Council, etc., v. O’Brien, supra, the decision is correctly reflected in the third headnote, where it is said:

“A death, certificate which purports to show of what disease a particular person died is competent as tending to prove the death of such person from such cause, where it is produced from among public records Kept pursuant to statute.”

Our statute seems to have been copied largely from the Illinois statute, and'the provision respecting the probative effect of death certificates is precisely like the Illinois statute. The Illinois case was decided before our statute was adopted. The Illinois statute has been.in force ever since July, 1877.

In Krapp v. Metropolitan Life Ins. Co., supra, the Supreme Court of Michigan reviews tbe New York ease of Davis v. Supreme Lodge Knights of Honor, 165 N. Y. 159, 58 N. E. 891, hereinafter referred to, and holds that that case is not controlling upon the question here involved.

In the case of McKinstry v. Collins, supra, the law is stated thus:

“The record of a certificate of death made pursuant to the requirements of the statutes is a public record, and a certified copy thereof is admissible as presumptive evidence of such facts therein as the attending physician is required by law to certify to, and as are presumably within his personal knowledge including the cause of death.”

There are some cases, however, which hold a contrary doctrine. See Beglin v. Metropolitan Life Ins. Co., 173 N. Y. 374, 66 N. E. 102; Davis v. Supreme Lodge, Knights of Honor, 165 N. Y. 159, 58 N. E. 891; Brotherhood, etc., v. Barton, 46 Ind. App. 160, 92 N. E. 64; and Sovereign Camp, W. O. W., v. Grandon, 64 Neb. 39, 89 N. W. 448.

In Beglin v. Metropolitan Life Ins. Co., supra, the court, after stating various grounds upon which certified copies of birth and death records may be admitted as prima facie evidence, says:

“We think it was not the intention of the Legislature to change the common-law rule of evidence in controversies of private parties growing out of contract, and that the provisions of the statute should not he construed as applicable to such cases." (Italics ours.)

We confess our inability to grasp just what the writer of the opinion had in mind. The fact is that no reason whatever is stated why the Legislature did not mean what it said in plain and unambiguous language, namely that certified copies of death certificates should be “prima facie evidence in all courts and places.” Merely to say “we think” that the Legislature did not intend a certain thing is not at all convincing to our minds, and especially not when considered in the light of all that is said in the statute and when its very purpose is kept in mind. But we are equally in the dark with regard to what the court means by controversies “growing out of contract.” True it is that, when the court’s language is considered in the light of what is said in the earlier New York case, namely, Davis v. Supreme Lodge, etc., supra, and upon which the decision in the Beglin Case seems to be based, we assume that the court had in mind some limitation, since in the Davis Case, in holding such a certificate not admissible as prima facie evidence of the cause of the death, it is said:

“Legislation which effects unreasonable changes in the rules of evidence for the enforcement of subsisting contracts, impairs their obligation, and is therefore void.” (Italics ours.)

If, therefore the court means to be understood as holding that provisions affecting contracts that were entered into before the statute authorizing the admission of certified copies of death certificates was enacted are excepted, we can understand the ground upon which the court rests its decision. In view of all that is said in the opinion, however, we are forced to say that we are not clear upon what ground the decision is based.

There are a few cases emanating from the Supreme Court of New York to the same effect, but, as that court has frequently held both ways upon the question, we need not refer to the New York cases further.

It is true that in the case just cited, and in perhaps one or two others cited on behalf of appellant, the court takes the position that the registration act was not intended to “interfere with private rights.” It is hard for us to understand how the admission of a public record as prima facie evidence interferes with any private rights. No one has a vested right in the rules of evidence. It might, with as much force, be urged that the grant of the privilege to the patient as against his physician and his adversary interferes with the private rights of such adversary in a lawsuit. The fact, however, is that the Legislature may, and in many instances has, declared when and under what circumstances public records may become prima facie evidence between litigants. “We are utterly unable to conceive why that may not be done in a case of this kind. That it may be done seems to be conceded by all courts except the New York Court of Appeals, which seems to hold that it may not be done as against existing contracts.

Of wbat nse tbe statute would be if limited as indicated by tbe Indiana Court of Appeals is also a mystery to us. Clearly, as against tbe physician or tbe registrar, if either fails to comply with tbe provisions of tbe statute, tbe record, independently of the statute, would be evidence against them. If tbe physician bad failed to file a complete certificate, then tbe one be did file would always be admissible against him as bis own declaration or statement of wbat be bad done or bad failed to do in that regard. If, upon tbe other band, tbe registrar bad failed to correctly record tbe physician’s certificate, then again wbat be did in that regard would be established by tbe record be made; and, if no record at all was made, then tbe section which makes tbe record prima facie evidence would have no application. That tbe statute would be practically impotent if it were limited as indicated by tbe Indiana Court of Appeals is, prima facie at least, established by tbe fact that in all tbe years that such statutes have been in force not a single case, so far as we are advised, has ever come into tbe courts in which only tbe public was concerned. Moreover, tbe statute makes tbe record available to “any applicant,” and on bis behalf, therefore, is “prima facie evidence in all courts and all places.” That is wbat tbe Legislature has said, and we cannot understand upon wbat ground the courts can rightfully interfere with tbe legislative will.

Tbe Indiana decision is, however, much weakened as an authority by reason of tbe very strong and logical dissenting opinion in which tbe law in effect is stated to be as we have attempted to outline it in this opinion. Then again tbe Indiana case cites and relies upon an earlier Wisconsin case which has been overruled.

Tbe Nebraska case of Sovereign Camp, etc., v. Grandon, supra, is not an authority either way. In that case it was merely held that a record created by a city ordinance is not a public record, and hence is not admissible in evidence as such.

It is, however, insisted that tbe physician’s statement respecting wbat produced tbe ptomaine poisoning is not a statement of fact, but a mere conclusion. As we have pointed out, it is one of the very tilings that the statute requires to be stated by the physician who certifies to the death, and which, by the same statute, is declared to be admissible as prima facie evidence of the facts stated by the physician. The statement, however, respecting the cause of the ptomaine poisoning is necessarily a statement of an ultimate or operative fact. In one sense every fact which an expert may state as a result of special learning, skill, and experience is a conclusion, precisely as every ultimate fact in one sense is a conclusion from other facts. An expert, when called to testify as such, of necessity testifies to ultimate facts which he has deduced from other facts by reason of his expert knowledge and experience. Moreover, in the case at bar what caused the ptomaine poisoning was the very fact the plaintiff sought to establish. That fact, in the very nature of things was the subject of expert knowledge, and hence of expert testimony. How could a mere layman, without special knowledge and experience, be heard to say in a court of justice what caused a particular person’s death? Legally, 3 he would not be qualified to speak, and hence could not testify. An expert, by reason of his knowledge and experience, wonld, however, be qualified to testify upon the subject, and hence would be permitted to state what caused the ptomaine poisoning. It is said, however, that while a physician may state the disease which caused the death, he may not state what caused the disease. If that be so, our statute does not mean what it says.

Again, in case a person’s death is caused by any deadly poison, how can a physician state the disease that caused the death? Suppose a person purchased mushrooms from a dealer which turned out to be noxious and the purchaser partook of them and died. What disease would then be the cause of death? Clearly, none. In case of death caused by poison, therefore, it matters not from what source the poison entered the system, if it produced death, the physician can only state what in his judgment caused death, and in doing so must do precisely what was done in this case, namely, state that a par-tienlar poison caused, the death. Under the’ statute the physician is required to state the particulars, all of which are treated as statements of fact.

If the death and birth certificates required by our statute can be introduced in evidence only for the purpose of showing that A. or B. died, or that 0. or D. gave birth to a child, then the very purposes for which the. certificates were designed is frustrated. Moreover, if it be held by the courts that such certificates may not be used as evidence for the purposes indicated, then it necessarily follows that it is the courts, and not the Legislature, that are, administering the police power of the state as that power applies to birth and death certificates. In our opinion, the action of the Legislature, in providing for such certificates and in making them prima facie 'evidence of the facts stated therein, when the facts stated conform to the statute, is a wise and proper exercise of the policé power of the state and should not only not be interfered with by the courts, but should be enforced by them.

It is, however, insisted also that the court erred in charging the jury. There is no merit to that contention. The court followed the law as laid down by this court in the case of Walters v. United Grocery Co., 51 Utah, 565, 172 Pac. 473, L. R. A. 1918E, 519.

Nor did the court err, as contended, in refusing appellant’s requests to charge. The matters contained in the requests were fully covered in the court’s general charge, and hence nothing could have been gained by charging as requested.

The assignments that the court erred in the admission 4 of certain evidence is wholly without merit, and hence need no special consideration.

On behalf of the respondent it is urged that the appellant waived his right to object to the court’s ruling m admitting the death certificate in evidence for the reason that the appellant had made the attending physician his own witness, etc. In view of the conclusion reached by the majority of the court, it is unnecessary to consider that question and we express no opinion upon it.

From what has been said it follows that the judgment should be, and accordingly is, affirmed, with costs to respondent.

CORFMAN, C. J., and TPIURMAN, J., concur.