109 S.W.2d 616 | Ky. Ct. App. | 1937
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *218 Reversing.
Ballard Pierce was insured by a group policy issued by the appellant to employees of the Louisville Nashville Railroad Company. He instituted this action to recover an aggregate of $2,000 because of total and permanent disability commencing September 26, 1930, at which time he pleaded he was under 60 years of age. The health insurance provisions of the policy did not cover employees 60 years of age and older. Pending the trial, the plaintiff died, and the suit was revived by his administratrix. The sole issue submitted to the jury was the age of the insured on September 26, 1930. The verdict and judgment were for the plaintiff, and the defendant appeals.
The widow, as administratrix claiming the proceeds of the insurance for Pierce's estate, testified. She was much younger than her husband and had married him in 1927 (the certificate of the marriage register introduced by the defendant, however, shows the marriage was on November 20, 1928). Her husband had a Bible about six inches long and four inches wide which laid around the house or was carried in his pocket. He left home after putting some things in a sack which he took with him.
Not long afterward he was sent to the asylum, where he died. She had not seen the Bible since her husband left home. Over objection, the widow testified that the date of his birth in the Bible was July 4, 1872.
Alva Ely, the 17 year old daughter of Mrs. Pierce, testified that she had lived with her mother after her marriage to Pierce. He had a Bible which was "real old and the writing in it was real old and it had his age." She had not seen the Bible or any of his things since he went away. Over objection, she testified the Bible showed the date of his birth to be July 4, 1872.
Irene Skinner, a stenographer in the office of the attorney for the plaintiff who filed the suit, and subsequently *219 died, testified that the defendant had taken Pierce's deposition as on cross-examination in his attorney's office before Jimmie Terry, another stenographer. She heard Pierce there state that he was born in July, 1872. The witness had refreshed her memory by reading Terry's shorthand notes. This evidence was also over the defendant's objection.
The plaintiff closing, the defendant moved for a peremptory instruction. The motion being overruled, it produced record and other evidence showing that the insured was born in 1864 or 1865, and consequently was well over 60 years of age on the day stated.
Mrs. Pierce was not competent to testify concerning any communication between her husband and herself. Section 606, Civil Code. "Communication," as there used, embraces all knowledge obtained by reason of the marriage relation and which would not have been known but for the confidences growing out of the relation. Willey v. Howell,
The evidence does not disclose that a reasonable search had been made for the Book. That is usually prerequisite to establishing the loss of a document, the contents of which it is proposed to prove by parol evidence. Elkhorn Land
Improvement Co. v. Wallace,
The general rule is that hearsay evidence of certain classes is always admissible to prove pedigree, which term embraces the date of birth of an individual. Benham v. Kentucky Central Life Accident Insurance Co.,
In Bryant v. McKinney, 96 S.W. 809, 29 Ky. Law Rep. 951, we recognized the competency of entries in a family Bible of the fact and date of birth, marriage, or death of a child or other relative. Admissibility was confined to original entries in a Bible which contained a history of the facts about which it purported to speak. It was held that the rule could not be carried so far as *221 to permit the admission. of isolated and incomplete entries. in irregular places, or of entries not appearing to be original, or bearing on their face, when considered in connection with other facts, intrinsic evidence of their improbability as a true record of family history. The entry involved was copied about 10 years after her birth, by the father of the person whose age was in issue, from an original entry made by him in another Bible. The court regarded as significant that the entry introduced in evidence was not in the place set apart in the Bible for such records and did not show the dates of the birth of other members of the family or any other facts in the family history except the date of the death of the father who had made the entry. It was held incompetent.
A stepfather introduced in evidence a New Testament in which, some 10 years before, he had entered the birth of his stepdaughter, whose age was involved, upon information obtained from her mother. This was incompetent because not a contemporaneous record, and not made by one who knew anything about the fact. Goff v. Murphy,
We may turn to our cases holding evidence of this character to have been properly admitted. In Woodard v. Spiller, 31 Ky. (1 Dana) 179, 25 Am. Dec. 139, it was held to be well settled, even at that early date in our jurisprudence, that a register of births made in the handwriting of a father, who had been dead 30 years, was competent evidence. Of like effect is Whalen v. Nisbet,
In Rankin v. Dunn,
Reverting to the facts of the case, or rather to the omissions of proof concerning the Bible and the purported entry of the insured person's birth. It was a small pocket size Book and there is no history of it. It is not shown that it was a family Bible, or, indeed, that it was owned by the deceased. For aught that appears, it contained only this one isolated entry somewhere between its lids. There is no evidence concerning who may have made the notation said to be the date of the insured's birth, nor when it was probably made. The person making it may have been living and available as a witness. There is nothing to connect the making of the entry with the insured or any of his family other than that he had the book in his possession. It does not possess the characteristics which warrant its acceptance as an authentic family record. As measured by the rule of admissibility declared by our foregoing opinions and other authorities, the evidence was not competent and the court erred in admitting it.
The testimony of Miss Skinner that she heard Pierce state under oath that he was under 60 years of age was not competent. While such statement was given in a deposition taken as on cross examination, such deposition was not filed in the record, as it might have been, and must therefore be regarded as extrajudicial. It was but repeating a self-serving declaration of a party.
It is not necessary to pass upon the claim of the appellant that with this evidence eliminated it was entitled to a peremptory instruction; or, whether it be *223 eliminated or not, that the verdict is flagrantly against the evidence. Those questions are reserved.
Judgment reversed.