that the person injured died in the state of Kentucky. Immediately following her death, the attending physician prepared and filed with the bureau of vital statistics of Kentucky a certificate stating the fact and cause of her death. This certificate was read in evidence by the plaintiffs as a part of their case in chief. At the close of the evidence, the defendant requested the court to instruct the jury to the effect "that the death certificate offered by the plaintiffs in this case is, in itself, prima facie evidence of the cause of her death." The court declined to give the instruction as requested, but gave in lieu thereof the following: "In the absence of other testimony, gentlemen, the certificate of the physician who signed the death certificate would be prima facie evidence of the cause of death; but, in passing upon the cause of death, you will take into consideration not only the death certificate, but all of the other evidence before you relating to the cause of death." It was held that the refusal of the court to charge as requested was not error, and that the instruction given by the court was as favorable to the defendant as the law of the case warranted.

However, in Rohloff v. Aid Asso. for Lutherans (1906) 130 Wis. 61, 109 N. W. 989, an action on a benefit certificate, the issue being as to whether the insured committed suicide, it was held that there was no error in excluding from the consideration of the jury a certified copy of the certificate of death of the insured, made by the physician and health officer, and filed in the register's office, as required by the statute. The court held that it was not the best evidence, and was not offered by way of impeachment, but as original testimony, and was clearly incompetent. So, in Lucas v. Current River Land & Cattle Co. (1905) 186 Mo. 448, 85 S. W. 359, the court stated the facts and its ruling as follows: "The burial certificate is not signed or attested by anyone. It appears by the certificate of the health commissioner to be a part of the records of his office. But the health

commissioner does not certify to the truth of the facts stated therein. Nor does any other person whosoever. The health commissioner's certificate is dated January 23, 1901, but the unsigned death certificate is not dated at all, nor is there anything to show who made it, or when it was made, or when it was made a part of the records of the health department of the city of St. Louis. The death of a person cannot be proved by a document which is not attested, or whose verity is not vouched for by anyone. The death certificate is of no legal force or effect, and was therefore properly excluded by the trial court."

And in Bishop v. Chicago City R. Co. (1917) 204 Ill. App. 286, in an action to recover for death caused by one of the defendant's street cars, a death certificate which had been issued by a physician in another state, who had attended the intestate at the time of her death, stating that death was due to the intestate's being run over by the defendant's street car three months prior to her death, was held to be inadmissible, as being merely hearsay.

It has been held that legislation requiring physicians to file death certificates in a public office makes such certificates public records, and that, their contents being thus published to the world, they are no longer to be treated as privileged. State v. Pabst (1909) 139 Wis. 561, 121 N. W. 357; McGinty v. Brotherhood of Railway Trainmen (1917) 166 Wis. 83, 164 N. W. 249. In the case last cited the court said: "The certificate of death of the father, Michael McGinty, made by Dr. O'Neill, stated that the cause of death was an injury to the head. Such certificate is presumptive evidence of the cause of death, under § 4160, Wis. Stat.; and the term 'presumptive,' as there used, has the same significance as what is designated as prima facie evidence under § 1022-12, Wis. Stat. Such certificate becomes a public record. Its contents are published to the world, and are no longer treated as privileged. . . . It being but prima facie evidence of the material facts stated therein, it was

subject to attack, and subject to proof as to what were the real facts concerning the death. The doctor, therefore, who had made such certificate, should have been permitted to testify, if such was the fact, that the injury to the head, referred to in the certificate as the cause of death, was a cancer." Compare, however, Cohodes v. Menominee & M. Light & Traction

Co. (1912) 149 Wis. 308, 135 N. W. 879, wherein the court said: "It is argued that legislation requiring physicians to file death certificates in a public office and to make report of certain accident cases to local registers of vital statistics is a legislative declaration that the secrecy as formally enjoined by the provisions of § 4075, Stat. (1898), has been relaxed, and that the privilege thereof, in cases like the present one, should be more restricted than formerly. We perceive no basis for this claim. There is no question before us of receiving evidence of facts embraced in any such certificate or report of Dr. Redelings."

b. View that record is not admissible.

There is authority, however, for the view that the public record or a certified copy of the original certificate of death is not admissible in evidence to show the cause of the death of the person named therein. The principle on which the view is based is that the records are required to be kept under police regulations for local and specific purposes only, and that a statute making a death certificate evidence is not to be construed, as making the certificate a public record in the sense that it is evidence in controversies between private parties.

District of Columbia.-See Levy v. Vaughan, 42 App. D. C. 146.

Indiana.-Pence v. Myers (1913) 180 Ind. 282, 101 N. E. 716; Brotherhood of Painters, D. P. H. v. Barton (1910) 46 Ind. App. 160, 92 N. E. 64; Brotherhood of Painters, D. P. v. Peters (1911) 46 Ind. App. 733, 92 N. E. 183.

Kentucky.-Louisville R. Co. v. Raymond (Louisville R. Co. v. Taylor)

(1909) 135 Ky. 738, 27 L.R.A. (N.S.) 176, 123 S. W. 281.

Nebraska.-Sovereign Camp, W. W. v. Grandon (1902) 64 Neb. 39, 89 N. W. 448.

New York.-Buffalo Loan, Trust & S. D. Co. v. Knights Templar & M. Mut. Aid Asso. (1891) 126 N. Y. 450, 22 Am. St. Rep. 839, 27 N. E. 942, affirming (1890) 56 Hun, 303, 9 N. Y. Supp. 346; Davis v. Supreme Lodge, K. H. (1900) 165 N. Y. 159, 58 N. E. 891, affirming (1898) 35 App. Div. 354, 54 N. Y. Supp. 1023; Beglin v. Metropolitan L. Ins. Co. (1903) 173 N. Y. 374, 66 N. E. 102, reversing (1901) 57 App. Div. 629, 68 N. Y. Supp. 1133, which affirmed (1900) 32 Misc. 254, 66 N. Y. Supp. 206; Robinson v. Supreme Commandery, U. O. G. C. (1902) 77 App. Div. 215, 79 N. Y. Supp. 13, affirming (1902) 38 Mise. 97, 77 N. Y. Supp. 111, motion to dismiss appeal denied in (1903) 175 N. Y. 466, 67 N. E. 1089, affirmed in (1904) 177 N. Y. 564, 69 N. E. 1130; McKinley v. Metropolitan L. Ins. Co. (1893) 6 Misc. 9, 26 N. Y. Supp. 63; Painton v. Cavanaugh (1912) 151 App. Div. 372, 135 N. Y. Supp. 418. Compare Re Francis (1911) 73 Misc. 148, 132 N. Y. Supp. 695; Re Hall (1915) 90 Misc. 216, 154 N. Y. Supp. 317; Keefe v. Supreme Council, C. M. B. A. (1899) 37 App. Div. 276, 55 N. Y. Supp. 827; Hoffman v. Metropolitan L. Ins. Co. (1909) 135 App. Div. 739, 119 N. Y. Supp. 978; Woolsey v. Ellenville (1895) 84 Hun, 236, 32 N. Y. Supp. 543; Markowitz v. Dry Dock, E. B. & B. R. Co. (1895) 12 Misc. 412, 33 N. Y. Supp. 702; Nestor v. Pabst Brewing Co. (1920) 191 App. Div. 312, 181 N. Y. Supp. 477. Vermont. McKinstry v. Collins (1904) 76 Vt. 221, 56 Atl. 985, overruling, because of change of statute, (1902) 74 Vt. 147, 52 Atl. 438.

Thus, in Beglin v. Metropolitan L. Ins. Co. (1903) 173 N. Y. 374, 66 N. E. 102, reversing (1901) 57 App. Div. 629, 68 N. Y. Supp. 1133, which affirmed (1900) 32 Misc. 254, 66 N. Y. Supp. 206, on the trial the defendant offered in evidence a certified copy of the records of the city board of health, and followed this with an offer of the

original record, to prove that the mother of the insured had died of consumption and that consequently her administrator could not recover on the policy. The receipt of these records was objected to on the ground that they were hearsay. The court said: "A question appears to have arisen in the court below as to whether the general statute relating to public health was in force in the city of Albany, or chapter 297 of the Laws of 1885, which was a local statute. We shall not stop to consider that question, but shall assume that the general statute was in force, and that it required a registration of births, marriages, and deaths, including the cause of death; and that this record was made prima facie evidence of the facts therein set forth. This statute was a police regulation, required for public purposes, and became prima facie evidence so far as concerns questions arising under its provisions which involve public rights. Bnt 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 be construed as applicable to such cases. This in effect was what we held in the case of Davis v. Supreme Lodge, K. H. (1900) 165 N. Y. 159, 58 N. E. 891; also in Buffalo Loan, Trust & S. D. Co. v. Knights Templar & M. Mut. Aid Asso. (1891) 126 N. Y. 450, 22 Am. St. Rep. 839, 27 N. E. 942. The question here presented was elaborately discussed in the Davis Case, and we regard it as controlling upon the question now presented. It follows that the record was improperly received for the purpose of showing the cause of death."

In Buffalo Loan, Trust & S. D. Co. v. Knights Templar & M. Mut. Aid Asso. (1891) 126 N. Y. 450, 27 N. E. 942, 22 Am. St. Rep. 839, affirming (1890) 56 Hun, 303, 9 N. Y. Supp. 346, the court said: The court also properly excluded the records of the board of health of the city of Buffalo and the certificate of the attending physician, filed with the board, stating the cause of death of the insured. The

statute (Laws 1870, chap. 519, title 12, § 10, subd. 5) makes it the duty of the board of health of Buffalo to supervise the registration of deaths and causes of death in the city, and prescribes that no burial of a deceased person shall take place until a certificate shall have been made and presented of the death and its cause, if known, and that a refusal on the part of any person whose duty it is to make out and file for registration any such record shall be a misdemeanor. The ordinances of Buffalo also make it the duty of the attending physician to furnish a certificate setting forth the cause, date, and place of death of any person in the city, and file the same in the office of the board of health. The statute and ordinance were police regulations, and the records were required for local and specific purposes, and are not public records in such sense as makes them evidence between private parties of the facts recorded. We have found no case which would justify their admission in a controversy between private parties as evidence of the cause of death recently happening, where that became a material inquiry."

In Pence v. Myers (1913) 180 Ind. 282, 101 N. E. 716, it was held that since, under the Indiana statute (Burns's Anno. Stat. (1908) § 520, subd. 4), it is well established that a physician attendant on a testator at the time of his death should not be permitted to testify in a will contest as to the condition of the testator's mind, or as to the disease from which he suffered, the cause or duration of illness, and the cause of his death, the admission in evidence of the death certificate of such a physician, or a record kept by the county health officer and prepared from the physician's certificate, showing those facts or any of them, is error.

In Sovereign Camp, Camp, W. W. V. Grandon (1902) 64 Neb. 39, 89 N. W. 448, the court said: An ordinance of the city of Omaha makes it the duty of every undertaker or other person, before removing any corpse for burial, to obtain from the secretary of the

board of health a permit to do so, and, before obtaining such permit, he shall deposit with said secretary a certificate setting forth, among other matters, the cause and date of death, and duration of last illness of deceased, which certificate shall be signed by the physician or surgeon in attendance at the time of death. In case no physician or surgeon attended the deceased, then the certificate must be made by some relative or attendant. It will be observed that it is only by implication that the ordinance above referred to requires the physician to make and sign the certificate contemplated by the ordinance. The certificate, when made, is not required to be under oath, and its purpose is evidently to assist the health department in the performance of the duties devolving upon that office. It is a mere police regulation, and is not intended for the purpose of supplying the public at large with information upon which reliance may be placed in the business affairs of the community. We do not think the record is of such character as to entitle it to be received in evidence, as affecting the interest of a party to a litigation. There is another reason, which, in our opinion, makes it incompetent. If signed by a physician, it contains matter relating to his patient which the physician is not allowed to disclose as a witness upon the trial against the objection of his patient or those representing him. That a record of this character, reciting privileged communications, may be used in evidence against a party where the testimony of the physician making it could not be received, is a proposition so inconsistent with reason and natural rules of justice that we cannot give our consent thereto. The court properly refused to allow the certificate in evidence."

In Louisville R. Co. v. Raymond (Louisville R. Co. v. Taylor) (1909) 135 Ky. 738, 27 L.R.A. (N.S.) 176, 123 S. W. 281, an action for damages for personal injuries resulting in death, the defendant offered in evidence a copy of the death certificate made by the attending physician, showing the

cause of the death. It stated that he died of tuberculosis. The court held that the certificate was properly rejected as evidence, it not appearing that the physician was dead. The court said that while the statute required the physician to give the death certificate, there was nothing in the statute making the certificate evidence in judicial proceedings, and it stood in an entirely different place from the return of an officer, made pursuant to law, under his official oath, and that the best evidence was the testimony of the physician if he were living. But the court stated that if it had appeared that the physician was dead, a different question would have been presented.

In Levy v. Vaughan (1914) 42 App. D. C. 146, an action against a surgeon for malpractice in the administration of ether, resulting in the patient's death, the trial court refused to permit the plaintiff to read in evidence the death certificate made by the coroner. The particular item in question was "cause of death," which was stated "ether narcosis." The certificate was on an official blank of the health department, containing questions as to the date of death, name, sex, color, occupation, etc., as well as cause and place of death, which were required to be answered and certified to by the physician who attended the deceased professionally during his last illness. The coroner was not in attendance on the patient, nor did he make the autopsy, and his information regarding the death was hearsay. Moreover, the certificate was not an official certificate as coroner, but a formal requirement of the health department, of attending physicians, where there had been no occasion for an inquest, and its apparent purpose was to furnish statistical information. It was signed formally by the coroner as attending physician. It was held that there was no error in excluding the certificate.

However, it was held in Keefe v. Supreme Council, C. M. B. A. (1899) 37 App. Div. 276, 55 N. Y. Supp. 827, an action on an insurance policy, that the records of vital statistics, which

were kept pursuant to chapter 661 of the Laws of 1893, were properly admitted in evidence to show the cause of the death of a sister of the insured, under § 22 of a statute making a certified copy of the records of the death and the cause thereof presumptive evidence of the cause of death.

So, in Woolsey v. Ellenville (1895) 84 Hun, 236, 32 N. Y. Supp. 543, it was held that a certified copy of a certificate of death, which certificate was required by statute to be filed in the office of the town clerk; although not admissible under the common law, would be admissible in evidence by virtue of chapter 270 of the Laws of 1885, to show the cause of death of some of the plaintiff's ancestors.

And in Nestor v. Pabst Brewing Co. (1920) 191 App. Div. 312, 181 N. Y. Supp. 477, an action to recover for death by wrongful act it was held that a death certificate was only presumptive evidence as to the facts stated therein, and the presumption was removed on the introduction of substantial evidence to the contrary.

In McKinstry v. Collins (1902) 74 Vt. 147, 52 Atl. 438, an action for damages for an alleged assault on the plaintiff's wife, which it was claimed caused her death, as tending to prove that the plaintiff's wife died of pneumonia, the defendants were permitted to introduce in evidence a certified copy of the record in the town clerk's office of the certificate of death, made by one of the attending physicians during her last illness. In holding the certificate to be admissible in evidence, the court said: "The certificate seems to have been made in conformity to § 7 of No. 56 of the Acts of 1896, which provides, in part, that any physician who has attended a deceased person during his or her last illness shall at once fill out and forward to the health officer a certificate giving the date of death, the name, age, sex, and, if a male over fifteen years of age, the occupation of the deceased person, the cause of death, place of birth, place of death, and the names of the parents of the deceased, so far as these facts are as

certainable. It is evident from the source from which the certified copy came, that the certificate was returned by the health officer to the town clerk, as provided by § 8 of the act, and by the clerk recorded, pursuant to the requirements of § 3 of the act, which provides that town and city clerks shall receive, number, and record, in the order in which they are received, all certificates of births, marriages, and deaths in their respective towns and cities, in the books furnished to them by the secretary of the state board of health, and that each record shall show when it was made. It is clear that the record of a certificate made and recorded in conformity to these provisions of law is a public record, and that a certified copy of such a record is admissible in evidence, and is presumptive evidence of such facts stated therein as the attending physician is, by law, required to certify to, and are presumably within his personal knowledge.

. . While the cause of death is more or less uncertain, it would seem, in the absence of a post mortem examination, that an attending physician would be more likely to have personal knowledge of the cause of death than any other person, and that his certificate of the cause of death should be regarded as a statement of a fact within his personal knowledge, and therefore within the rule above stated." However, on a subsequent appeal [(1904) 76 Vt. 221, 56 Atl. 985], the court held that the certificate was inadmissible to show the cause of the death of the plaintiff's wife, when offered for that purpose, for the reason that the legislature had changed the law since the rendition of the previous decision, by the enactment of a statute providing that no public record of births, marriages, or deaths, required by law to be kept, or any certified copy thereof, should be competent evidence in the trial of any suit then or thereafter pending to prove any fact stated therein, except the fact of birth, marriage, or death. Act No. 44 of Acts of 1902, p. 49.