ISSUANCE OF DEATH CERTIFICATE -- WITNESSES TO A DROWNING -- BODY NOT RECOVERED

ISSUANCE OF DEATH CERTIFICATE -- WITNESSES TO A DROWNING -- BODY NOT RECOVERED

Where a prosecuting attorney has affidavits of four witnesses to a drowning, and the body has not been recovered, he is the proper official to issue a death certificate if there is no coroner in the county.

                                                                    - - - - - - - - - - - - -

                                                                November 9, 1949

Honorable Joe L. Johnson
Prosecuting Attorney
Cowlitz County
Kelso, Washington                                                                                                              Cite as:  AGO 49-51 No. 156

Dear Sir:

            We have your letter of October 25, 1949 in which you ask the following question:

            Where a man, fishing from a small boat in the Columbia River, was seen by four witnesses to sink in the water after his boat was struck by a steamer, and the said witnesses did not observe the body to reappear and the body has not been recovered, and the witnesses have executed affidavits concerning their observations, (1) is there any authority for the issuance of a death certificate, and if so, (2) who should issue it.

            The conclusions reached may be summarized as follows:

            (1) A death certificate should be issued if the information contained in the affidavits reasonably construed rebuts the presumption of life and gives rise to a presumption of death.

            (2) The certificate should be issued by the coroner or by the prosecuting attorney if there be no coroner in the county.

                                                                     ANALYSIS

            The law presumes that a person shown to be alive at a given time remains alive until the contrary is shown by some sufficient proof or in the absence of such proof, until a different presumption arises.  Howard v. Equitable Life Assurance Society, 197 Wash. 230, 85 P. (2d) 253.

             [[Orig. Op. Page 2]]

            A finding of death in less than seven years may be warranted upon evidence tending to show that an absentee was exposed to some specific peril, in connection with the particular circumstances.  See Notes, 34 A.L.R. 1389 (1394) and 61 A.L.R. 1327 (1330).

            If the information contained in the affidavits is sufficient to rebut the presumption of life, and to substitute therefor the presumption of death, a death certificate should be filed.

            The question as to which public officer is charged with the responsibility of executing the death certificate is resolved by the language of § 3, chapter 159, Laws of 1945 [6024-3, Rem. Supp. 1945], providing as follows:

            "If the death occurred without medical attendance, the funeral director or person in charge of interment shall notify the Coroner, or Prosecuting Attorney if there be no Coroner in the county.  If the circumstances suggest that the death or stillbirth was caused by unlawful or unnatural causes or if there be no local health officer with jurisdiction, then the Coroner or Prosecuting Attorney shall complete and sign the certification, noting upon the certificate that no physician was in attendance at the time of death.  * * *"

            We construe the aforementioned statute to mean that in the event of a death due to unnatural causes and without medical attendance, the coroner shall complete and sign the certificate, and if there be no coroner, then the burden of so doing falls upon the prosecuting attorney.

            On August 13, 1946, we rendered an opinion to the Director of Department of Health concerning the procedure for placing on file certificates of death for two passengers presumed to have drowned when a school bus plunged into Lake Chelan, neither of the bodies having been recovered from the lake after the accident, wherein we said:

            "We refer you to chapter 159, Laws of 1945 [6024-1 to 6024-6 Rem. Supp. 1945] which makes provision in §§ 2 and 3 thereof for the health officer, coroner, or prosecuting attorney having jurisdiction to  [[Orig. Op. Page 3]] certify as to the cause of death whenever the deceased dies without medical attendance.  By said certificate the official accepts responsibility as to the facts of death and accordingly you could file the certificate upon the bases of such a certificate.

            "We believe that in all these cases there should be inscribed on the certificate the phrase 'body not recovered' and facts to show why the same was not recovered and why the person is presumed dead.  While you could file the standard death certificate with the above modifications, you may deem it advisable to change your present standard certificate to conform to 'presumption of death' cases.  * * *  By the listing of sufficient facts in the certificate and by having it signed by one of the officials enumerated in said law after he has thoroughly investigated the matter, the possibility of disappearance rather than death would be eliminated.  This would be much less expensive and more expedient and desirable than having to resort to a determination of the court in these cases.  * * *"

            With regard to the language above quoted relating to the adoption by the department of a special form of certificate to be used in presumptive death cases, we are advised that no such form has been adopted and that as a matter of administrative procedure the department recommends, in addition to matters discussed in our former opinion, that such certificates be clearly marked "PRESUMPTIVE DEATH".  If and when the body be recovered, a regular death certificate should be filed with the department.

Very truly yours,

SMITH TROY
Attorney General

T. H. LITTLE
Assistant Attorney General