Opinion by
Pеter Kaub held five life insurance policies issued by the defendant, aggregating $1077, all payable to his executors or administrators. Each of the policies сontained a clause agreeing that upon proof being furnished the company that the insured had “sustained bodily injury, solely through external, violent and accidеntal means......resulting in the death of the insured within ninety days from the date of such bodily injury......the company will pay in addition to any other sums due under the policy......an accidеntal death benefit equal to the face amount of insurance stated in the policy......except......no accidental death benefit will be paid if the death of the insured resulted from suicide.”
The insured was drowned in the Lackawanna River near Duryea, Pa., on April 9, 1937. The plaintiff contended that the death was acсidental and claimed the accidental death benefit in addition to the face of the policies. The company paid the face amount of the insurance but refused to pay the accidental death benefits, contending that the insured’s death was not *71 accidental but “resulted from suicide.” This action followed.
On the trial, “for the purpose of proving the death of Peter Kaub by accidental drowning ” the plaintiff offered in evidence a certified copy of the certificate of death of the insured certified under the signature of the Director of the Bureau of Vital Statistics, Pennsylvania Department of Health, with the оfficial seal of the department attached, wherein, as part of the ‘Medical Certificate of Death’, signed by the deputy coroner, Joseph G. Dills, M. D., the following appeared — the words italicised being inserted in the printed form:
“21. Date of Death (month, day and year) April 9,1937
“22. I Hereby Certify, That I attended deceased from April 9,1937 to April 9,1937.
“I last saw him dead on April 9,1937, death is said to have occurred on the date stated above, at 11 A. M.
“The principal cause of death and related causes of importance were as follows:
Drowning
Accidental
No boat Involved
“23. If death was due to external causes (violence) fill in also the following:
Accident, suicide or homicide? Accident”
This was objected to by the defendant’s counsel on the grounds (1) that it was hearsay; (2) that it called for a conclusion on the part оf a witness, not present for cross-examination as to his qualifications; (3) that it was not the best evidence; and (4) that section 21 of the Act of June 7, 1915, P. L. 900, as amended by Acts of May 24, 1933, P. L. 976, and April 22, 1937, P. L. 399, 35 PS sec. 471, providing for the registration of deaths, etc., was unconstitutional in so far as it makes the certificate prima facie evidence of the cause of death. The objec *72 tion was overruled and the certificate was received in evidence. The jury returned a verdict for tbe plaintiff.
Following a motion by defendant for judgmеnt in its favor non obstante veredicto and argument on tbe rule granted, the court came to tbe conclusion that it bad erred in admitting in evidence tbe certifiеd copy of tbe death certificate for tbe purpose of proving tbe death of tbe insured by accidental drowning, and, with that eliminated, that tbe plaintiff bad failed to prove by sufficient competent evidence tbe accidental character of insured’s death, and entered judgment for tbe defendant non obstante verеdicto. Tbe plaintiff appealed.
The court’s action in entering judgment for tbe defendant notwithstanding tbe verdict was clearly wrong under tbe decisions. With tbe certificate of death in evidence as proof of tbe accidental character of tbe insured’s death, there was evidence in tbe case to support a verdict for tbe plaintiff. If error was made in receiving tbe certificate in evidence for tbe purpose for which it was offered, tbe remedy was to grant a new trial, not to enter judgment for tbe defendant on tbe record with this evidence excluded. This is definitely established by many decisions, among which are the following recent cases:
Osanich v. Metropolitan Life Ins. Co.,
Tbe learned court below, in its opinion, referred to this principle but nevertheless disregarded it by enter *73 ing judgment for the defendant instead of granting a new trial. This would require a reversal of the judgment.
Had the certificate been excluded, the plaintiff would have produced evidence of circumstances tending to prove the accidental character. of the drowning and disprove suicide (see
Wainstein v. Equitable L. Assurance Society,
As, in our opinion, the certificate should not have been received in evidence for the purpose for which it was offered we cannot enter judgment for the plaintiff on the verdiсt.
We are not required in this case to decide whether the provision in section 21 of the Act of June 7, 1915, P. L. 900, that “any such copy of the record of a...... 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”
is unconstitutional as respects the statements in the
medical certificate
relative to the
cause or causes
of death, as distinguished from the fact of death, by reason of the faсt that the title of the act gives no notice of any intention to change the rules of evidence and admit evidence that would otherwise be inadmissible as hearsay, (see
Borgon v. John Hancock Mutual Life Ins. Co.,
Section 8 of the Act provides what shall be done respecting the certificate of death, necessary for a burial permit, in case of a death occurring without medical attendance, and all that is required in such circumstances is a statement of the nature of the disease or the manner of death; and where death results from external causes or violence, the attending physician or the coroner is instructed to state only whether the death was probably accidental, suicidal or homicidal, which is not the statement of a fact but merely the expression of an opinion as to probabilitiеs, not receivable in evidence as a fact.
A careful reading of the entire act discloses to us no intention on the part of the legislature to make unsworn statements in a death certificate as respects the cause or causes of death, competent evidence on a trial in cоurt, where the person making them, by reason of want of personal knowledge, would have been incompetent to testify at the trial if called as a witness.
Dr. Dills had no personal knowledge whatever of the circumstances attending Peter Kaub’s death. His knowledge was confined to the fact that Kaub had died by drowning, which was not disputed. On the question whether his death was accidental or suicidal Dr. Dills was not competent to give evidence either as a witness in court or by signing a deаth certificate. See
Lederer
*75
v. Metropolitan Life Ins. Co.,
The difficulty was, no doubt, due to the error of the Department of Health in preparing the form of certificate. Had the form prеscribed by the Act been followed, and the inquiry been worded, “23. If death was due to external causes or violence was it probably accidental, suicidal or homicidal?”, no reasonable person would have considered the answer to be the statement of a fact; admissible in evidence as such in court.
The second assignment of error is sustained. The judgment is reversed and a new trial awarded.