Brought on November 4, 1958, by The Prudential Insurance Company of America, the insurer, against Mary E. Marker, the beneficiary in each of the policies in suit, the suit was for a declaratory judgment determining the liability of appellee on two insurance contracts issued by it on the life of Andrew R. Marker, Jr., husband of appellant.

One of the policies, dated April 22, 1955, provided for a face amount of $5000, decreasing term benefits in the original amount of $9000, and $5000 accidental means benefits; and the other policy, dated December 12, 1957, provided for the face amount of $5000, decreasing term benefits in the amount of $25,000, and $5000 accidental death benefits. Each of these contracts contained provisions to the effect that, if death occurred by means of suicide within two years after issuance, no benefits would be paid but the premiums paid in would be refunded; and each policy also provided that no accidental death benefits would be paid in the event of death by suicide.

The appellant, after answering the complaint, filed a counter-claim against appellee, praying for payment of the face amounts, the decreasing term benefits, and the accidental death benefits in the insurance contracts, as well as twelve per cent statutory penalties and attorneys' fees.

Each party filed a motion to strike portions of the other party's pleading; each party made requests for admissions of fact upon the other party; each party filed objections and answers to the other party's request for admissions; and at least two lengthy pre-trial conferences were held by the trial judge, at which time attorneys for each party hereto presented briefs and other arguments and authorities in connection with both the motions to strike and the requests for admissions of fact.

In her pleadings, the appellant denied the authenticity of the first death certificate, pleaded by the company, and counter-claimed, pleading the amended death certificate as one of the facts entitling her to recover.

The trial court sustained the company's motion to strike that portion of defendant's pleading containing the amended death certificate and simultaneously overruled her motion to strike the provisions of the company's pleading setting out the original death certificate.

At the trial of the case, in pre-trial conferences and in several signed orders, the trial judge ruled that he would admit the original death certificate but would not admit the amended one, thereby, as defendant claimed below and claims here, effectively tying her hands by permitting the jury to see and examine the death certificate listing suicide as the cause of death, while at the same time refusing to permit appellant to show in any way that this certificate had been superseded, amended, altered, and corrected by the amended certificate which was furnished to the company's attorney on the 25th day of November, 1958.

After a trial on the facts, which, as material here, are summarized in the margin,1 the cause was submitted on special issues, and, the jury answering, 'Yes' to question No. 1, whether the death was suicide, there was a judgment for plaintiff, and defendant has appealed, presenting twenty-one numbered assignments of error which, argued in groups by appellant, are set out in the margin under six heads.2

While we are of the clear opinion that the claims of error, grouped under the first ground, when considered as a whole, are well taken and that the judgment must be reversed therefor, we are, for the reasons to be stated, of the equally clear opinion that none of the other grounds present reversible error.

Taking them up in inverse order, we dispose of Point 6, Assignment No. 21, that the evidence demanded a verdict for the defendant, by saying that no motion was made for a directed verdict and that, if one had been made, it must have been denied on the ground that the case on the evidence was not one for an instructed verdict but for determination by the jury.

As to Point 3, Assignment No. 19, in view of the fact that the court's definition of 'suicide', complained of in it, was taken directly from the policy, it is difficult to understand how it could be regarded as error to give it. Certainly the argument in appellant's brief, that this charge placed the burden upon her to prove that the deceased was sane, is not soundly based, since the court nowhere in the charge placed any such, indeed any, burden on defendant.

As to Point 4, Assignment No. 18, appellee points to nothing material to the case or in anywise prejudicial to appellant occurring in connection with this matter. Even if the action of the court, in deeming the answer submitted, was error, it was certainly harmless, for the appellee did not offer such requested fact as deemed admitted by the court in evidence. This being so, the complaint on this score presents nothing for our consideration.

Of point 3, Assignment No. 14, permitting Morales to testify over the objection that he was not qualified, it is too plain for argument that it was for the district judge to determine his qualification vel non, and there was no abuse of discretion in holding him qualified. Be sides the evidence was merely cumulative and corroborative of testimony previously given by two witnesses called by appellant, and if there was error, it was harmless error.

The rulings grouped under Point 2, complained of in Assignments Nos. 8 through 11, and related Assignments Nos. 15 and 17, present nothing in anywise resembling reversible error. The issue of waiver was not submitted to the jury. No charges on the issue were requested, and questions 4, 5 and 6 were not answered by the jury.

We come then to the vital assignments in the case, Nos. 1 through 7, and Nos. 12, 13 and 20, grouped under Point 1, to say in respect to them: that, while the law is, generally speaking, in grant confusion3 upon the primary questions dealt with in these assignments, the admissibility in evidence, and the effect in actions on insurance policies, of death certificates containing conclusions as to suicide and accident, it is certainly true that, if admissible, they are admissible as no more than prima facie evidence; that the action of the court in this case in admitting the original death certificate, while refusing to admit the amended certificate and the tendered testimony of Hausman4 with respect to the making of both of them, was serious and highly prejudicial; and that the case will have to be reversed because of the action of the court in giving the plaintiff the benefit of the admission into evidence of the original death certificate and at the same time denying the defendant the benefit of the amended certificate and of the relevant evidence of Hausman in explanation of the making of the original and the amended certificate.

While the conclusion set out just above, that the case was not fairly tried, is sufficient for the disposition of this appeal by reversal, since the case will be retried, it is necessary for us to decide and determine, if we can, (1) the admissibility of the certificate as originally prepared and as amended; (2) its scope and effect as evidence; and (3) the correctness of the court's rulings in respect to the other assignments grouped under this point.

Appellee justifies the admission into evidence of the original death certificate, which had been furnished by appellant as part of her proofs of loss, as an admission of the beneficiary against interest. Thornell v. Missouri State Life Ins. Co., Tex.Com.App., 249 S.W. 203. Cf. New York Life Ins. Co. v. Taylor, 79 U.S.App.D.C. 66, 147 F.2d 297. It justifies the exclusion of the amended certificate and the tendered evidence of Dr. Hausman by invoking the principle authoritatively laid down by the Supreme Court of Texas in Boehme v. Sovereign Camp Woodmen of the World, 98 Tex. 376, 84 S.W. 422, decided before the enactment of the present Texas Sanitary Code, dealing with death certificates and citing in support Service Mutual Ins. Co. v. Banke, Tex.Civ.App., 155 S.W.2d 668; Folse v. Monroe, Tex.Civ.App., 190 S.W.2d 604; Tichenor v. Little, Tex.Civ.App., 279 S.W.2d 379; Kentucky Home Mutual Life Ins. Co. v. Watts, 298 Ky. 471, 183 S.W.2d 499; and Standard Oil Co. v. Moore, 9 Cir., 251 F.2d 188.

On her part, appellant, earnestly arguing that the certificate, as it was originally prepared and as it was amended, and the testimony of Hausman, which the court refused to permit her to elicit, were admissible, invokes 28 U.S.C.A. 1732, 'Record made in regular course of business', and the Texas statutes following: Art. 989a, Vernon's Ann.C.C.P.;5 Vernon's Annotated Texas Statutes, Art. 4477, Rule 41a;6 Vernon's Annotated Texas Statutes, Article 4477, Rule 51a;7 and Vernon's Annotated Texas Statutes, Article 4477, Rule 54a.8

Recognizing that it has been held by the Supreme Court in the Boehme case, that the purpose of an inquest in merely to detect crime and to take preliminary steps to secure a trial of probable criminal offenders, and that (98 Tex. 376, 84 S.W. 423) 'it was not a purpose of our lawmakers to make the inquest a means of perpetuating testimony to be used in a civil suit, or by the finding of the justice to manufacture evidence for use in a case between other parties', appellant, pointing out that that case was tried before the present Sanitary Code was in effect, cites later Texas cases holding that, under the present statutes, death certificates are admissible to prove the cause of death, particularly Continental Casualty Co. v. Fountain, Tex.Civ.App., 257 S.W.2d 338; Universal Life & Accident Company v. Barron, Tex.Civ.App., 269 S.W.2d 467; American National Ins. Co. v. Valencia, Tex.Civ.App., 91 S.W.2d 832; Southland Life Ins. Co. v. Brown, Tex.Civ.App., 121 S.W.2d 653; Texas Department of Public Safety v. Jackson, Tex.Civ.App., 272 S.W.2d 577, 578; to which may be added Travis Life Insurance Co. v. Rodriguez, Tex.Civ.App., 326 S.W.2d 256.

In addition, she cites, as supporting her claim that the evidence was admissible under 28 U.S.C.A. 1732, and the controlling state statutes, cases from other states and jurisdictions, cited in the margin.9

We recognize fully the difficulties and complexities in the way of an assured and positive determination of the question posed here, whether, giving full consideration to appellee's arguments that in the light of the many contrary Texas cases it cites, and of the cases from Texas, such as Service Mutual Ins. Co. of Texas v. Banke, Tex.Civ.App., 155 S.W.2d 668, and from other states,10 holding that the finding of suicide or accident is not a finding of a fact but is merely an opinion or conclusion, the Texas cases appellant cites support her view, that the original and the amended certificates were admissible as such, subject to explanation and contradiction.

Nevertheless, we are of the firm opinion: that the Texas statutes appellant invokes are in substantial effect the same as the Alabama statute, which requires the doctor's certificate to state the cause of death and 'whether (probably) accidental, suicidal or homicidal', Sorrow v. Industrial Life & Health Ins. Co., 259 Ala. 544, 68 So. 2d 43, 45, and that the findings in the original and the amended certificate of suicide and accident were findings of fact, admissible as prima facie evidence only, and subject, under the controlling rules of evidence, to full explanation and contradiction.

The judgment is, therefore, reversed and the cause is remanded for further and not inconsistent proceedings.

TUTTLE, Circuit Judge (specially concurring).

I agree with the holding of this Court that the judgment must be reversed and the case remanded for a new trial, but with the greatest deference I cannot concur in that part of the opinion which holds that the part of the death certificate which expresses the opinion of the medical examiner that death was caused by suicide is admissible under the Texas law.

My concurrence in the rusult arises from my agreement with the majority that when the insurance company introduced the original death certificate1 showing that in the opinion of the medical examiner death resulted from suicide, it was permissible for the appellant to attack that opinion by the subsequent testimony of the medical examiner. I do not think that the amended certificate in which he changed his opinion as to the cause of death was itself admissible in evidence.

I think the policy considerations given by the Supreme Court of Texas for not permitting the medical examiner to prejudge this question of such vital importance, as stated in Boehme v. Sovereign Camp Woodmen of the World, 98 Tex. 376, 84 S.W. 422, quoted in the majority opinion, apply equally under the present Texas statute.

I would, therefore, reverse on the facts of this case not to permit the amendment to the death certificate to be tendered in evidence, but to permit appellant to present the medical witness himself to impeach his own initial opinion that death was caused by suicide.