69 Neb. 631 | Neb. | 1903
Lead Opinion
This action is brought to recover upon a benefit certificate issued by the plaintiff in error to Joseph Bartes, the husband of the defendant in error, and in which she is named as the beneficiary. The only defense urged, and the only question tried, was the age of the decedent at the time of making application for admission to the order; section 3 of article 2 of its constitution and by-laws providing that “no person shall be admitted to membership in the order except that he be a white male of the full age of twenty-one years and under forty-five years at the time of receiving the-workman degree.”
Joseph Bartes’ application for beneficiary certificate bears date June 29, 1894, in which he states that he was born on the 25th day of December, 1.849, at Moravia, Europe. He died as the result of an accident on February 25, 1898. In the investigation following his death the plaintiff in error obtained from Mrs. Bartes what is termed a “birth certificate” of her husband, in which it is recited that he was born on the 23d of December, 1846. On the trial, no witness made any direct statement as to the age of Joseph Bartes, but his mother testified that she was married to his father on February 3, and on Christmas of the same year of the marriage her son Jospeh was born; that his father died in January, 1900, and that she had lived with him fifty years, lacking about three weeks; that they were preparing to celebrate their golden wedding at the time of his death. Accepting this as a correct statement of the facts, it would establish that Joseph Bartes, the deceased, would have been fifty years of age on the 25th of P member, 1900, and that he was born in 1850. On her direct examination the plaintiff in error testified as follows :
Q. Mrs. Bartes, do you know how old Mr. Bartes was when you married him?
A. Yes, sir.
Q. You may state how old he was when you married him. .....
*633 A. He was twenty-seven years old.
Q. How long were you married to him before he died?
A. It would be twenty-five years if he was living now.
Q. Would it be twenty-five years this year?
A. Yes, sir, this fall at All Saints day.
She could not give the year of the marriage but, as her husband had been dead two years, her testimony corroborates that of her mother-in-law, and fixes the age of Joseph Bartes at the time of his death between forty-seven and forty-eight years. On crossrexamination Mrs. Bartes testified as follows:
Q. How long had you known Mr. Bartes before your marriage?
A. I only knew him when I was married.
Q. Did you know Mr. Bartes a year before you married him?
A. No, sir.
Q. How do you know that your husband, Joseph Bartes, was twenty-seven years of age, twenty-five years ago, when you married him ?
A. From the publication of the banns. * * *
Q. Is the only way that you know the age of your husband, Joseph Bartes, at the time of your marriage, what the priest announced at the banns?
A. No other way.
Q. In speaking about the banns being announced, do you mean, that the preacher or priest announced it from the pulpit to the congregation that you and Mr. Bartes were engaged?
A. Yes, sir.
Q. Announced it orally?
A. Yes, sir.
Q. Now, from the time that you heard the announcement made by the priest of the banns of marriage, have you ever had occasion to think of or consider your husband’s age until this case was begun?
A. I never did.
Q. You never talked with your husband about his age?
*634 A. No, sir.
Q. And any information about your husband’s age was gained from the announcement made by the priest at the time the banns of marriage were announced?
A. Yes, sir, that is it.
At this point the defendant moved the court to strike out all the evidence of Mrs. Bartes as to the age of her husband, for the reason that there was no foundation laid for such evidence and the witness had not shown herself competent to testify as to his age, and that the only statement as to his age is the statement made by the priest who announced the banns, the same being hearsay and an improper method of proving age. This motion was overruled and defendant excepted.
The date of a person’s birth may be testified to by himself or by the members of his family, although he must, and they may, know the fact only by hearsay based on family tradition. No rule is better established than this one; and when it is shown that the witness is a member of the family of the person whose age is the subject of inquiry, the presumption obtains that the witness is competent without laying any foundation therefor; but on cross-examination it may be shown that, although a member of the family and prima facie qualified to testify as to age or pedigree, the witness is not qualified, either because he has no knowledge in fact on the question involved, from not having heard it discussed, or that his opportunities for obtaining knowledge on the question have been insufficient to make him a competent witness. Harland v. Eastman, 107 Ill. 535.
In the case cited, it is said:
“Such conversations may have been such in extent and variety, and may have been held under such circumstances, as to enable a witness to say that such was the reputation in the family, but such conversations may not have been such. The witness surely could not be permitted to swear to any specific thing which his wife, or either of her uncles, had said in his hearing, because they are all living, and*635 their sworn testimony is better than their unsworn statements. It follows, the witness cannot properly be allowed to state his conclusion from such unsworn statements, unless all of them taken together, with their surroundings, enable him to say such was the accepted state of the case in the family, or snch was the uncontradi'cted repute in the family.”
Mrs. Bartes, on her cross-examination, gave the source of her information as to the age of her husband at the date of her marriage. This information came from the priest and not from any member of the family; and she further testified that it was the only information relating to his age, at that time, of which she was possessed. In this state of the case we have no hesitation in saying that she showed herself incompetent to testify, and that it was error not to exclude her testimony upon the motion made therefor. It is true that she was afterward recalled and the following question asked her:
Q. Mrs. Bartes, was it not talked of between you and your husband; that is, I mean, when you were together did you not sometimes talk over the fact of hoAV old you Avere or how old he was?
A. We never talked about our age; once in a while he spoke of his birthday, once in a Avhile Ave talked of our birthdays. She further testified that both her father-inlaAV and mother-in-laAV lived with them in their family; and was then asked this question:
Q. NOAAr, Mrs. Bartes, in your talks — that is in your family talks between your husband and yourself and his father and mother — was it ever talked of Iioav long you had been married to your husband and hoAV long you lived together; that is, before his death?
A. Yes, sir, it Avas talked. ¡
Q. Now, Mrs. Bartes, from your living together with 'the father and mother of Joseph Bartes, your husband, and they with you, do you know what day their wedding anniversary came in the year?
A. Yes, sir, it came on the 2d of February.
For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause remanded for another trial.
Reversed.
Rehearing
The following opinion on rehearing was filed February 17, 1901. Former judgment of this court vacated. Judgment of district court affirmed:
This cause is submitted on rehearing. The consideration given the case and the recommendations contained in the former opinion (ante, p. 631) resulted in a reversal of the judgment of the trial court on the ground of error in not withdrawing from the jury certain evidence given by the wife of the deceased with reference to his age at the time of the execution of the contract on which is based plaintiff’s right of action. The plaintiff instituted an action to recover on a policy of insurance or benefit certificate issued by the plaintiff" in error, a fraternal beneficiary association, to her deceased husband, who, during his lifetime, had become a member of one of its local lodges.. As a defense the association pleaded that the deceased, at the time of the issuance of the beneficiary certificate and in jnaking application therefor, had misrepresented his age, and that he was, at the time of his admission as a member of the local lodge and the issuance of the certificate, be
The plaintiff Avas of Bohemian nationality and required the assistance of an interpreter in giving her testimony. On cross-examination it Avas developed, as is set forth in detail in the former opinion {ante, p. 631) that her first knowledge as to the age of her husband was gained by the public announcement of the parish priest in her native country of the marriage banns, a short time prior to its celebration, which Avas according to a custom there obtaining. After drawing from the witness the information that this was the first and only means by Avhiqh she knew her husband’s age, at the time of their marriage, the witness Avas further asked on cross-examination if she had ever talked with her husband about his age, and answered in the negative. She Avas then asked: “And any information about your husband’s age Avas gained by the announcement made by the priest at the time the banns of marriage were announced?” She ansAvered: “Yes, sir, that is it.” Because of the source of the witness’ knoAAdedge of her husband’s age as thus elicited on cross-examination, a motion Avas made to strike >out all her direct testimony relating to his age; and the refusal of the court to strike o\it such testimony, it was thought and so held in the former opinion, constituted prejudicial error for Avhieh the judgment of the trial court should be reversed.
It is not altogether clear that the witness is disqualified from testifying relative to the age of her deceased husband, conceding the correctness of the premises of counsel for defendant, as to the announcement of the parish priest of
The announcement was in its nature a public or quasi public proclamation. It was made as a part of a customary proceeding leading up to the performance of the marriage rite. It may be presumed to have been made upon the authority, in the presence, and with the consent of the deceased, the prospective bridegroom. It may possibly be said to be equivalent to a public declaration by him of his age, and, under a well recognized rule governing hearsay evidence of this character, since his decease, may be testified to as a declaration made by one competent to testify to pedigree, had he been living. We do not, however, care to be understood as resting our decision on this proposition, and do not do so.
An examination of the entire record satisfies us that the witness was competent for other reasons to testify regarding the age of her husband. While the cross-examination standing alone would seem to limit her knowledge to that gained from the publication of the marriage banns, taking all of her evidence, as disclosed by the record, it is manifest that such is not the case. Admitting her first information to be from an incompetent source, it is apparent that she was qualified to speak regarding the matter testified about from her relationship to her husband, as a member of the family, and because of knowledge gained thereby in relation to the general repute and tradition in the family concerning the birth, age and pedigree of her deceased husband. She had lived with him over twenty years. She says that they at times spoke about their birthdays. It is hardly conceivable that, where the family relations had been sustained for this length of time, a member of such family during the whole of such period was not qualified to speak of matters pertaining to the pedigree of other members of the family of like standing. A birthday may not be an epoch in the life of a person, but it is at least an event, an incident of which note is usually taken by the several members constituting the
Treating, for present purposes, the knoAvledge of the wife gained from the publication of the marriage banns as coming from an incompetent source,. Ave can not regard this as sufficient grounds for excluding her evidencie in chief touching the age of her deceased husband, or for holding her incompetent to testify on the subject. Her competency does not rest on her right to testify to declarations made by those Avho Avere qualified to speak Avlien the declaration Avas made but AArhose testimony by reason of death or other causes can not be obtained. Her qualification to speak of the family tradition regarding age, pedigree, etc., is bottomed on her membership of long standing-in the family, and the knoAvledge of matters pertaining to the pedigree of other members acquired thereby. That she did have such general knowledge which renders her competent to testify is, Ave think, disclosed by the record. The incompetent source of her knowledge first obtained could, at most, be considered only for the purpose of affecting her credibility or the Aveight to be attached to her evidence. Her competency to testify as a Avitness has its origin in knowledge and information coming from
Other errors are argued by counsel for plaintiff in error in their brief filed in the case, none of Avliich appeal to us as of such a substantial character as to call for a reversal of the judgment entered in the court below. The whole of the controversy centered on the point relating to .the age of the deceased. The testimony was directed almost exclusively to this one issue. The court, by its sixth .instruction, told the jury that if the age of the deceased, at the time he applied for membership, was found to be above that allowed by the laws of the association, the*, plaintiff could not recover. This issue of fact was by the jury found against the defendant. While it is urged that the evidence is insufficient to support the verdict, we are satisfied from examination of the record that such is not the case. The wife and the mother of the deceased both testified regarding his age, and from the evidence of both, or either, the inference is fairly justifiable that his age was not misrepresented in his application for the benefit certificate of insurance. While there is some parol and documentary evidence apparently supporting the contention of the defendant, this evidence, as found by the jury, must give way to the positive and direct testimony of the living witnesses qualified to speak on the subject.
The giving and refusing to give certain instructions are also excepted to, but, in view of the clear cut instruction of the court, to which we have referred, submitting the issue of fact in as favorable light as the defendant could rightfully ask, no prejudicial error was committed in the ruling of the court on the instructions given and, refused, of which complaint is made.
Errof is also sought to be predicated on the ruling of
Affirmed.