Knox v. Catholic Women's Benevolent Legion, 69 Pa. Super. 426

Knox v. Catholic Women's Benevolent Legion

69 Pa. Super. 426 | Pa. Super. Ct. | 1918

Opinion by

Trexler, J.,

The defendant society issued a certificate of membership to Bridget Knox, which provided for the payment, at her death, of $1,000 to her two daughters. After her death suit was brought and defendant contested the claim on the ground that the insured was over the age of fifty years at the date of the contract. Under the con-' stitution and by-laws of the society, membership was *428limited to persons between tbe ages of seventeen and fifty years. In her application ber age is given as between forty-nine and fifty, and that sbe was born at Carbon-dale, Lackawanna County, baptized at tbe cburcb of St. Rose, same place, on tbe-day of July, 1858; ber father’s name was William Banks, and ber mother’s name was Bridget McLaughlin. Tbe records of tbe cburcb above referred to being produced at tbe trial, it was found that a Bridget Banks, designated as tbe daughter of William Banks and Bridget McLaughlin, was baptized on October 8,1853. If tbe above entry correctly stated tbe date of tbe baptism and bad reference to tbe insured, sbe was over fifty when sbe applied for membership, and there could be no recovery on tbe policy. Tbe learned trial judge left tbe question of identity to tbe jury. We think this was right. Tbe record of tbe cburcb was properly admitted as furnishing competent proof of tbe date of baptism and necessarily that tbe date of birth preceded it, and of the identity of tbe parties named, but it was not conclusive, and tbe trial judge could not give binding instructions for defendant. Although tbe whole baptismal record was given, reference was only made to tbe above date, and it does not follow that that was tbe only record of baptism of Bridget Banks. We do not know whether at tbe time stated in tbe application, to wit: July, 1858, any record to that effect appears, or that tbe record discloses its absence. This was referred to by tbe judge in bis charge, but as far as appears Tby tbe record before us, tbe attention of neither court nor jury was called to tbe fact that no other record of tbe baptism of any one bearing tbe maiden name of tbe insured did not appear in tbe book which was produced. Tbe judge instructed tbe jury that they might infer from this record that Bridget Knox, whose maiden name was Banks, was tbe same person as was baptized on October 8,1853, but that “it is also possible that five years later there could have been another Bridget christened in that family; that is altogether *429possible; in five years time one child could have died and another one born, so you see that in the absence of other evidence it affords a mere presumption of identity of person. That happened perhaps more than once that one year a child is born, named and christened and its life may be short and it dies and later on some other child come and for reasons that are perfectly natural the second child is given the same name.” We see no error in this. Such cases have come within the observation of the writer of this opinion. The probabilities are that the Bridget whose name appears on the church record was the same as the insured, but it was for the jury to find whether defendant company had proved that fact. It was not for the court to do so. The contract of the parties was based upon the assumption that the insured was a “practical Catholic woman” and was between the ages of seventeen and fifty years. If the defendant alleged anything to the contrary, the burden was upon it to prove it. See Console v. Prudential Ins. Co., 67 Pa. Superior Ct. 52. The exact question we are discussing does not appear in that case, but the reasoning there employed we think applies.

All the assignments of error are overruled and the judgment is affirmed.