STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

September 9, 1971

Robert H. Hayes, M.D.
State Health Officer
State Department of Health

Pierre, South Dakota 57501

OFFICIAL OPINION NO. 71-35

Procedures for issuing presumptive death records

Dear Dr. Hayes:

We have received a request for an opinion regarding the following factual situation:

At the present time, the department is aware of seven persons who disappeared within the last year, who were last seen in the Missouri River. It is presumed each of these persons has drowned, but no death records have been filed.

Regulation 3.17 of the State Department of Health states, "Whenever a human body is missing and is presumed dead through disaster or accidental death and recovery of the body is uncertain, a death record shall be prepared by the coroner listing the presumed cause of death. Such record shall be filed in the office of the local registrar. When the body is recovered, the record of presumptive death shall be amended to include added information found upon inquest or autopsy.

This regulation places the full responsibility for the filing of these records on the coroner, but because of the nature of our coroner laws, in most instances he is not even called, and even if called, the completion of a record is the last thing to be considered. Accordingly, if records are to be filed there must be a motivating force from another agency. SDCL 34-25-1 states in part, "The Public Health Advisory Committee shall have charge of the

registration of births, deaths, burials, marriages and divorces and shall prepare the necessary instructions for obtaining such records, and shall supervise the registration of the same in each registration district and in the central bureau of vital statistics."

Accordingly, it appears that the State Health Department has the responsibility to see that all vital records, including presumptive death records are filed.

The questions you have asked are:

1. After what period of time can we require a presumptive death record be filed?

2. What liability is involved if a presumptive death record is completed by a coroner, and filed, if the person presumed dead is not, in fact, dead?

3. Under what circumstances can a person be presumed dead?

Before answering your specific questions, it would be well to review the present procedure being used. By "presumptive death certificate," you are referring to a regular death certificate which states the cause of death as "presumed drowned."

At the present time, there is no law dealing with the issuance of death certificates where a body has not been found. The nearest thing to it is SDCL 34-25-21 which provides that where a death occurred without the attendance of a licensed physician, it is the duty of the funeral director, or other persons in charge of the body, to notify the county coroner. In such case, the county coroner shall make the medical certificate and return from the statements of relatives or other persons having knowledge of the facts of the case. My predecessor ruled in 1947-48 AGR 254 that a death certificate could be issued where a person was drowned and the body was not found, by notification of the proper authority who would make the medical statement and return as provided by law. I agree with the conclusions of my predecessor.

With this as a background, it is apparent that the statutes place the duty of determining whether there was, in fact, a death, upon the coroner, not upon the public health advisory committee. If the coroner is not satisfied that there was a death, the public health advisory committee cannot require him to file a death certificate. A public official cannot be forced to perform an act which requires sound discretion on his part. Heintz v. Moulton, 72 SD 272, 64 NW 135.

The answer to your first question, therefore, is that the committee has no authority to require a coroner to file a presumptive death certificate.

The answer to your second question is that, ordinarily a public officer is not liable in a private action for acts performed in good faith within the scope of his authority. He may, however, be held liable for injuries resulting from his torts. 67 CJS, Officers, § 125. In other words, so long as a coroner, or other office holder in the absence of a coroner, fills out a death certificate in good faith" using his sound discretion, there is no liability on his part. He would be liable, however, if he intentionally filed a false death certificate.

In answer to your third question, under common law, a person is presumed dead when he is absent without explanation from his last and usual place of residence without having been heard from for seven years. 25A CJS, Death § 6a. It is not always necessary to wait seven years before attempting to prove that a person is dead. Death may be proved by showing facts which would lead a reasonable man to infer that conclusion. 25A CJS, Death, § 9. In the cases you have cited, the fact that persons were last seen boating or swimming in the river, and the fact that subsequently the boats turned up, would certainly be relevant evidence to take into consideration by the coroner when determining whether a death by drowning has occurred. Infallability of judgment is not required; what is requisite is that the inference drawn by the coroner be a reasonable one. O'Leary v. Dielschneider, 205 Fed. 2d 810, 812.

If there were an action in one of our courts that involved the issue of the death of the person in question, I would suggest that the evidence presented be brought to the attention of the coroner to aid him in his decision.

Respectfully submitted,

Gordon Mydland
Attorney General