Cupryk v. Ruthenian National Union , 66 Pa. Super. 595 ( 1917 )

Opinion by

Kephart, J.,

The appellee was a member of the appellant beneficial association and sues to recover under the provisions of a by-law, which gives to a member, on the death of his wife, a benefit of from two to four hundred dollars, according to the amount of insurance carried. The defense is made that the wife, at the time the appellee was admitted to membership, was over forty years of age. The by-laws provide: “......that the age of the wife or husband was not over forty years at the time of his admission into' membership.” The appellee testified from information received from his wife that when he made application for membership his wife was between thirty-eight and thirty-nine years of age. To contradict this testimony the appellant offered in evidence the husband’s application for membership, wherein he stated at the time he signed the application that his wife was forty-three years of age. The court refused to admit this evidence. We do not understand on what theory the court declined to' admit it. It was this application that led to the issuance of the plaintiff’s certificate on which this action is based. The objection to the offer was that it was vague and indefinite. For the purpose of contradiction and as affecting the credibility of the witness, the evidence was competent. An offer was made to show appellee’s oral admission at the time he signed the application that his wife was over forty. The court refused to admit this offer. This was error. The defendant further offered to prove that in the application of the wife, made cotemporaneously with her husband’s application, and upon which he has received the benefit, she made the statement that she was forty-three years of age. We think the offer was clearly competent for the purpose of proving the fact of age. It is not necessary to discuss whether the testimony of those who heard the wife’s declaration as to age is competent when it is used in the interest of her beneficiary to establish age. Generally the proof of pedigree, which includes descent, relationship, birth, marriage and death, and the times when these events happen (Insurance Co. v. Rosenlage, 77 Pa. 507,) may be established by general repute in the family emanating from persons connected with such family by blood or marriage,, and the husband or wife enjoy such relationship. And while it may be necessary, if the wife’s declaration is offered as a self-serving statement, to show that she obtained the knowledge through family relationship, when offered as a declaration against interest, the presumption would-be that she made the statement from such knowledge. It is therefore competent not only to contradict the appellee’s statement, but as proof of the substantive fact of age.

That portion of the charge embraced in the thirteenth assignment of error is incorrect. The plaintiff did not produce positive testimony showing the wife’s age. It is not necessary to offer birth records, or the evidence of persons who could testify from actual knowledge from childhood to death to prove age. If this evidence can be secured, it should be produced, but evidence of general repute in the family by those competent will be sufficient if family records are not obtainable. The value of the defendant’s evidence, as affecting appellee’s credibility, was greatly lessened by the court’s charge. The case did not warrant such instruction.

Assignments one to fourteen, inclusive, and the sixteenth assignment, are sustained. The fifteenth assignment, being the motion for a new trial, is not considered. The judgment is reversed and a venire facias de novo is awarded.