be paid for such services cannot be recovered. In a suit to cancel a bond and mortgage given by the plaintiff to the defendant, where no criminal proceedings were seriously contemplated by the defendant nor feared by the plaintiff, where the consideration for the bond and mortgage included promises on the part of the defendant that no criminal proceedings should be commenced against the plaintiff, and that the pending criminal proceedings against a third party should be conducted in such a way that either the plaintiff's name should not be mentioned, or that, if it were mentioned, the plaintiff should be exonerated from all blame in connection with the transactions, it was held that the consideration for the bond and mortgage. was partly illegal and therefore wholly bad, and therefore the instruments were obtained without good and sufficient consideration, but that they were not obtained by duress. Lound V. Grimwade (1888) L. R. 39 Ch. Div. (Eng.) 605, 57 L. J. Ch. N. S. 725, 59 L. T. N. S. 168, where the report does not state what judgment was entered. In Piper v. Harris Mfg. Co. (1888) 15 Ont. App. Rep. 642, the plaintiff, as agent for the defendants, sold a mower, but instead of selling for cash, as he was instructed, he took in exchange a horse, and this contract the defendants ratified by taking a chattel mortgage on the horse for the amount of their claim. Later, becoming dissatisfied with their security, they arranged with the purchaser to return the mower and take back the horse; on applying to the plaintiff, he objected, but, on being threatened with what he understood to mean criminal proceedings, he permitted the defendants to take the horse, which they turned over to the purchaser of the mower, taking the mower back. The plaintiff recovered in trover for the value of the horse, but, on appeal, his action was dismissed altogether. The court held that there was no duress, and said: "If the defendants had merely obtained the horse for their own use, and kept it, the question might have arisen whether the transaction could be set aside, not on the ground of duress, but as having been brought about by undue pressure, or as being based wholly or in part upon an illegal consideration; viz., the compromise or abandonment of criminal proceedings. Here there was no evidence of duress, and the defendants merely disposed of the horse without gaining any advantage for themselves, in the way the plaintiff authorized them to do it." B. B. B. 1. The death certificate issued at the time of death of one alleged to have been killed by another's negligence is admissible in evidence in an action to recover damages for the death. [See note on this question beginning on page 359.] withdrawal of privilege in regard to physician's testimony. 2. The privilege of excluding testimony of an attending physician as to an illness, being purely statutory, the legislature may lawfully change the extent of privilege at any time, and therefore may make the certificate of death issued by the physician admissible generally in civil actions. (- Utah, - death certificate as prima facie evidence. 3. Although one suing for damages for an alleged wrongful death is not bound by a certificate of the cause of death, which is made a matter of public record, the certificate may be made prima facie evidence which he has the burden of overcoming. -statement of contributory causes. 4. A death certificate may state what caused the poisoning which caused the death, so as to make such statement prima facie evidence of the facts under a statute providing that the certificate shall state the cause of death so as to show the course of disease, giving the primary and im- Appeal - refused instruction - error. On Petition for Rehearing. Record - death certificate legislalative discretion. 6. It is properly a matter for the legislature to determine what matters shall be stated in death certificates which are to become public records. (Gideon and Weber, JJ., dissent.) APPEAL by plaintiff from a judgment of the District Court for Salt Lake County (Bramel, J.) in favor of defendant in an action brought to recover damages for the death of plaintiff's minor child, alleged to have been caused from eating poisonous and unwholesome ice cream sold and delivered by defendant to plaintiff. Affirmed. The facts are stated in the opinion of the court. Mr. Joseph W. Rozzelle for appellant. Messrs. George F. Wasson and Mahlon E. Wilson, for respondent: By the introduction in evidence of the death certificate, the provisions of the Privileged Communications Statute are not violated; and, if it should be held that its introduction in evidence conflicts with such statute, it is expressly permitted by the laws of the state, as set forth in § 5058, Compiled Laws of 1917. State v. Pabst, 139 Wis. 561, 121 N. W. 352; National Council, K. L. S. v. O'Brien, 112 Ill. App. 40; Hennessy v. Metropolitan L. Ins. Co. 74 Conn. 699, 52 Atl. 490; McKinstry v. Collins, 74 Vt. 147, 52 Atl. 438; Ohmeyer v. Supreme Forest, W. C. 91 Mo. App. 189; State v. McDonald, 55 Or. 419, 103 Pac. 512, 104 Pac. 967, 106 Pac. 444; Krapp v. Metropolitan L. Ins. Co. 143 Mich. 369, 114 Am. St. Rep. 651, 106 N. W. 1107; 2 Jones, Ev. 2d ed. § 508. Frick, J., delivered the opinion of the court: This action was originally commenced by the plaintiff, hereinafter called appellant, against the Independent Coal & Coke Company, the Crescent Ice Cream Company, and the Kenilworth Mercantile Com pany, 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. From 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 doctor 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. Ap pellant'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. Utah Comp. Laws 1917, § 5838, adopts the common law of England, "so far as it is not repugnant to the Constitu tion 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 evi death certificate. dence for certain Evidence- in that regard is well stated in 3 Jones, Ev. § 508. The author quotes the following from Stephen on Evidence: "An entry in any record, official book, 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 official duty. So long as the one making them was in discharge of a public and official duty in so keeping the book of entry, it is sufficient. Such (— Utah, -, 199 Pac. 406.) 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, Ev. §§ 508, 509, 511. Mr. Wigmore, in his unexcelled work on Evidence (vol. 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 record ing 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. Utah Comp. Laws 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, § 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 5058. Every precaution is taken to obtain a correct statement of the 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, 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 form 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 constitutes prima facie evidence. The question, however, still remains whether the admission of the facts stated in such a certificate as prima facie evidence contravenes Utah Comp. Laws 1917, § 7124, subd. 4, which provides: "A physician or surgeon cannot, without the consent of his patient, be examined in a civil action, as to any information acquired in attending the pa tient which was necessary to enable him to prescribe or act for the patient." privilege in regard to physician's testimony. 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 the priv-withdrawal of ilege, 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 Utah Laws 1884, p. 359. It was in force in a modified form prior to that time. See Utah Comp. Laws 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, Utah Laws 1905. If, therefore, there is an irreconcilable repugnance or conflict between the act creating the privilege and the provision of the act making a certified copy of the physician's certificate prima facie 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 |