Perry v. Industrial Commission
Perry v. Industrial Commission
Opinion of the Court
The first of the defendant’s contentions is that the judgment should be reversed because the trial court erroneously excluded a certified
His claimed injury occurred while he was moving heavy boxes of paper from an elevator. “He lifted one of them. It just sort of got out of his control, and just off balance, and he twisted himself.” He was seen to hold his right upper abdomen at approximately the belt line. He complained and was restless and short of breath after he reached home that evening. However, he returned to his work the following day and continued his employment regularly there and elsewhere for two years except that in 1946 he spent one week in a hospital for surgery. Several days before his death his wife returned home from a visit and found him ill in bed. He was pale and vomiting. He was removed to a hospital where he died at the age of 64 years.
At the trial the defendant proffered the official death certificate signed by the decedent’s attending physician. It was excluded on the ground that, since it was signed by the attending physician, it was a privileged communication and, inadmissible under the provisions of Section 11494, General Code (Section 2317.02, Revised Code), which abrogates the common law and reads in part:
“The following persons shall not testify in certain respects:
“1. An attorney, concerning a communication made to him by his client in that relation, or his advice to his client; or a physician, concerning a communication made to him by his patient in that relation, or his advice to his patient.”
The defendant relies on the provisions of Section 1261-66, General Code (Section 3705.05, Revised Code), which in part read:
“The director of health, or person authorized by him, shall upon request and upon the payment of a fee of fifty cents supply to any applicant a certified copy
Included in the certificate is the information:
“Immediate cause of death coronary sclerosis. Duration ? Due to food poisoning. Duration 7 days. Cause undetermined.”
The plaintiff contends also that these statements are expressions of opinion and not of fact, as provided by the statute.
An examination of the certificate discloses that some of the statements are factual and others opinion. The record discloses, too, that the defendant was willing to exclude the opinion and introduce the factual part alone.
Was the factual part admissible under the statute relating to death certificates? Counsel agree that the precise question has not been decided by this court.
The state of Utah has a similar statute, and in the opinion in the case of Bozicevich v. Kenilworth Mercantile Co., 58 Utah, 458, 199 P., 406, 17 A. L. R., 346, the reasoning was as follows:
“* * * 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 Mm. 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 Ms cMld had not already been made a matter of
In view of the fact that of the two Ohio statutes the one relating to death certificates is the more recent and since the latter is specific while the older statute is merely general, the specific and more recent enactment must prevail.
The plaintiff relies on the decision in the case of Carson v. Metropolitan Life Ins. Co., 156 Ohio St., 104,
The defendant’s second contention is that the trial court was in error in excluding a duly authenticated hospital record containing the following information:
“Chief complaint: Date and mode of onset, probable cause, course: Some time over a week ago patient was treated for a severe cold. After this was cleared up the patient — who was getting his own food as his wife was away, ate a raw hamburg sandwich. A very short time after this he began to have severe abdominal pain with very severe vomiting. When Dr. Carson saw him his pulse was beginning to weaken and hospitalization advised immediately. ’ ’
The objection to the admission of this record was likewise based on the provisions of Section 11494, General Code, supra, relating to privileged communications. It is contended that the record was made from statements made by the decedent to Dr. Carson, the attending physician. However, one conclusive answer to this is that a search of the entire record discloses no evidence that the hospital record was so made. Hence, under the provisions of Section 12102-23, General Code (Section 2317.40, Revised Code), it was prejudicial error to exclude the factual statements contained therein.
The defendant complains of further errors, but the foregoing views render further comment unnecessary.
Judgment reversed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.