Action on life insurance policy, judgment for plaintiff for $740.54, including interest and attorneys fees for vexatious refusal to pay. ■ The St. Louis Court of Appeals reversed and remanded. [Randolph v. Supreme Liberty Life Ins. Co.,
This question arises on a policy for which no examination was required but which provided that it should not take effect “unless upon its date the assured shall be alive and in good health.” The application contained statements that applicant was in sound health and had not consulted a physician within three years. The death certificate was offered to show that the applicant was not in sound health at that time. Other facts may be found in the opinions in the Court of Appeals.
Section 1895 provides that a physician or surgeon shall be incompetent to testify “concerning any information which he may have acquired from any patient while attending him in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician, dr do any-act for him as a surgeon.” This statute goes back to 1835. (Laws 1835, p. 623, §17.) It is a privilege1 of the patient and may be waived by him. [Carrington v. City of St. Louis,
Sections 9766 and 9781 are a part of the Vital Statistics Act of 1909. [Laws 1909, p. 538; now §§9760-9783.] This Act established a state system of registration of births and deaths to be permanently preserved by a State Registrar. (§9778) It provided (§24) “that all laws and parts of laws inconsistent with the provisions of this Act are hereby repealed.” Section 9764 requires a death certificate before burial of the body of any person. Section 9766 states what the death certificate shall contain and includes: “(16) Statement of medical attendant of decedent, fact and time of death, including the time last seen alive. (17) Cause of death, including the primary and contributory causes or complications, if any, and duration of each.” This section further requires the physician, last in attendance on the deceased, to “state the cause of death, so as to show the course of disease or sequence of causes resulting in the death, giving the primary cause, and also contributory causes, if any, and the duration of each.” Section 9781 requires the State Registrar, upon request,’to “furnish any applicant a certified copy of the record of any birth or death” upon payment of a fee of fifty cents;.and further provides that ‘ ‘ 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. ’ ’
We think it is clear that this Act made death certificates public records by requiring them to be permanently kept by a public officer and making them available to anyone who desired to have the information contained in them. How can there -be any privilege in facts that are thus made public? We do not think it is reasonable to say that these facts, which are thus made public and open to the world on application for any other purpose, may not be had for use in court when our statute specifically provides that they shall be evidence in all courts. We think the Supreme Court of Iowa correctly answered this question, in State v. Flory,
. There is some conflict of authority on this question as may be seen from annotations in 17 A. L. R. 359, 42 A. L. R. 1454 and 96 A. L. R. 324; 46 C. J. S. 484, § 1337 e (2); 32 C. J. S. 497; §638 b;
Since the certificate was admissible, the testimony of Dr. Sidney E. Smith was also admissible to explain the medical terms used and to explain the nature of the diseases mentioned in it.
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Defendant also assigned as error the refusal of its following instruction: “The Court instructs the jury that the question of waiving the proof of death of the insured is an affirmative fact which the plaintiff in this case was bound to establish by the preponderance, that is, the greater weight, of the credible evidence in this case; and, unless said fact has been so established by the plaintiff to the satisfaction of the jury, your verdict should be for the defendant and against the plaintiff.” We hold that this was not error. In the first place the instruction contained the often criticised clause requiring proof “to the satisfaction of the jury.” This was reason enough for refusing it. [See Seago v. New York Central R. Co.,
The defendant would be entitled to have an instruction informing the jury that plaintiff had the burden of proof of the facts hypothesized in instruction No. 2 and telling them that unless said facts had been established by the preponderance of the evidence then their verdict should be for the defendant. As stated- in the concurring opinion of Judge Hughes herein, an instruction may properly direct •the attention of the jury to a single issue of the evidence where this relates to a distinct issue which is an essential element of the plaintiff’s case. A defendant has the right to have a separate instruction, on each essential element of plaintiff’s case, telling the jury that plaintiff’s failure to prove the facts necessary to establish such element requires a verdict for defendant; or to hypothesize defendant’s theory of facts, contrary to plaintiff’s theory, which if found would require a verdict for defendant. [Roth v. Roth, (Mo. App.)
The judgment is reversed and cause remanded.