O'Malley v. Metropolitan Life Insurance , 47 Pa. Super. 533 ( 1911 )

Opinion by

Orlady, J.,

This is an action brought by the plaintiff on a policy of insurance issued by the defendant on the life of James O’Malley. In the application'the date of the birth of the assured was given as September 19, 1849, at Westport, Ireland. The defendant alleges that the assured misstated his age at the time this application was made, and in support of this contention offered in evidence what purported to be a certified copy of a public record from the public record office of Ireland, being the census return for June 6, 1841, signed by an assistant keeper, under the seal of office, and certified to be made in pursuance of public records act for Ireland, of 1867, 30 & 31 Victoria, and a similar certificate from the same bffice showing the return of census for March 30, 1851, for the family of the alleged father of the assured.

Attached to each was a certificate of the commissioner of the state of Pennsylvania, and the consul of the United States for the port of Belfast.

Counsel for the appellant very frankly states in his argument: We produced not only the certificate of the commissioner of deeds for the. state of Pennsylvania, stating what the law is, but also produced the statute or acts of parliament, bound and authenticated just as our acts of assembly, and read to the court from them, and therefore, the matter was properly before the court, and was in evidence although the stenographer may not have understood it as an offer, and did not take it down.” We can only consider the record as it is certified to us by the court below, and as presented it does not show that any offer was made to determine any authority in law under which these records were required to be originally made, how they were to be preserved, or how authenticated, and as appears by the record, no act of parliament was either read or offered in evidence.

While it is true that the statutes of another state or country may be proved by a properly authenticated copy, yet no offer was made, or proof adduced to ascertain the law of Ireland in force in 1841 and 1851. The unwritten law of another state or country may be shown by the decisions of the courts, or by the testimony of a witness who is familiar with it. But such evidence is to the court, and for its information. The law of another state upon a subject coming under notice in the trial of a cause will be presumed to be the same as the law of this state upon this same subject. But it is always incumbent upon him who alleges that it is different to show just what it is to the court, who will judge of the sufficiency of the evidence, and its effect: Bollinger v. Gallagher, 170 Pa. 84; Linton v. Moorhead, 209 Pa. 646; Yung’s Estate, 199 Pa. 35; American Life Insurance & Trust Co. v. Rosenagle, 77 Pa. 507.

The evidence as offered was excluded for the reason that there was too much uncertainty in the papers themselves to permit them to be offered for the purpose mentioned,. and from what did appear, on their face it was apparent that the law regulating the taking of the census, preserving of the records and the effect to be given to such record, is materially different from that in force with us.

The court properly excluded the evidence referred to in the second and third assignments of error; and without such proof the defendant could not proceed with its case, so that the direction to find a verdict for the plaintiff was proper, under the circumstances.

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

Porter J. concurs in the judgment.