American Life Ins. & Trust Co. v. Rosenagle

• Citation: 77 Pa. 507
• Parties: American Life Insurance and Trust Company <I>versus</I> Rosenagle and Wife.
• Decision Date: 10 May 1875
• Court: United States State Supreme Court of Pennsylvania

Page 507

77 Pa. 507

American Life Insurance and Trust Company versus Rosenagle and Wife.

Supreme Court of Pennsylvania.

March 9, 1875.

May 10, 1875.

March 9th 1875.

Before AGNEW, C. J., SHARSWOOD, WILLIAMS, MERCUR, GORDON, PAXSON and WOODWARD, JJ.

Error to the Court of Common Pleas of Luzerne county: Of January Term 1874, No. 293.

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H. M. Hoyt and Hazlehurst (with whom was E. N. Willard). —The identity of the person is inferred from the identity of name: 1 Greenl. Ev., sect. 278 d. The testimony of Debold as to the pedigree of his relations, was admissible: 1 Greenl. Ev., sects. 103, 104, 134. Exhibit No. 2, as an extract from a church register, was admissible: Kingston v. Lesley, 10 S. & R. 383; Douglass v. Sanderson, 2 Dall. 117; Dussert v. Roe, 1 Wallace Jr. 39; Stoever v. Whitman, 6 Binn. 416; 1 Greenl. Ev., sects. 91, 128, 483, 484; 1 Stark. Ev. 195; Noyes v. White, 19 Conn. 250. The original, being a document of a public nature, a sworn copy is admissible: 1 Greenl. Ev., sects. 91, 483, 484; 1 Stark. Ev. 181; People v. Denison, 17 Wendell 312.

H. W. Palmer and _____ Abbott (with whom was J. Handley), for defendants in error.—Hearsay testimony of pedigree is restricted to deceased persons, related to the person whose pedigree is in question: 1 Greenl. Ev., sect. 103, 486; McCausland v. Fleming, 13 P. F. Smith 36. Foreign laws must be proved either by authenticated copies, or testimony of competent witnesses: 1 Greenl. Ev., sect. 486. A church register is not proof of identity: 1 Stark. Ev. 299. The written evidence establishes no more than that which took place between persons bearing the same name, &c.: Brown v. Petre, 2 Swanst. 235; Draycott v. Talbot, 3 Brown P. C. 564; 1 Phillips Ev. 233; 2 Id. 111; Birt v. Barlow, 1 Doug. 162. There was not sufficient evidence of loss of the letters spoken of by Debold: Simpson v. Dall, 3 Wallace 474. The admissibility of evidence of entries in a register, depends on the public duty of the person keeping it to make the entries: France v. Andrews, 65 Eng. C. L. Rep. 759; Ennis v. Smith, 14 Howard 427; Wilcocks v. Phillips, 1 Wallace Jr. 47.

Mr. Justice WOODWARD delivered the opinion of the court, May 10th 1875.

The first error assigned in this record is based on the rejection of that part of the deposition of Francis Joseph Debold in which he said: "By the letters which Rosenagle and his wife addressed to me from Scranton, I came to know that she (Mrs. Maria Katharine Kring) died in the said town. Rosenagle and his wife did write to me many times, but I have not more their letters." The decision of the court below was apparently controlled by the rule stated in 1 Greenl. Ev., sect. 88, that "if a witness, being examined in a foreign country upon interrogatories sent out with a commission for that purpose, in one of his answers states the contents of a letter not produced, that part of the deposition will be suppressed, notwithstanding, he being out of the jurisdiction, there may be no means of compelling him to produce the letter." The authority for the text in Greenleaf was the case of Steinkeller v. Newton, 9 C. & P. 313. In rejecting the statement of the witness, Tindal, C. J., said: "I think it would be a most inconvenient and a most dangerous rule to hold, that it should rest in the option of the party examined, whether he will produce the document or not. We have no power to compel the witness to give any evidence at all, but if he does give an answer, that answer must be taken in relation to the rules of our law on the subject of evidence." It is to be observed that in that case, no explanation whatever was given of the absence of the paper. Here, the witness said he had not preserved the letters of which he spoke — in his own words, he had "not more their letters." The defendants below were resisting a recovery on a policy of insurance on the life of Maria Katharine Kring, which, it was alleged, had been obtained by false and fraudulent representations by the plaintiffs. The immediate question related to the identity of Mrs. Kring, who had been represented in the application as having been born in 1807, and who was alleged by the defendants to have been born in 1798. The actual date of her birth was offered to be shown by other proof, and the establishment of the identity of the Maria Katharine Hermann who was born in the parish of Odenheim on the 17th of October 1798, with the Maria Katharine Kring who died in Scranton on the 19th of April 1867, was of vital importance to the defence. The fact stated was one which the witness had learned through a correspondence with his cousin Mary Ann Rosenagle and her husband, who were the plaintiffs. No question was made as to the authenticity of the letters. The witness had personally known both Mrs. Rosenagle and Mrs. Kring. The stringency of the rule requiring search for documents and proof of their loss, in order to make parol evidence of their contents admissible, is proportioned always to the character and value of the documents themselves. These letters were between relatives, and do not appear to have had any such obvious importance as to require care for their preservation. Slight proof of loss, therefore, was sufficient. This principle has uniformly been applied where documents, which from their very nature would have only transitory interest, have been in question. In the United States v. Doebler, 1 Bald. 519, on the trial of an indictment for forging and delivering bank-notes, after proof of the fact of forging a large quantity and the delivery of one note, it was held that parol evidence of the contents of a letter from the defendant to an accomplice on the subject of counterfeit notes, for which the accomplice could not account and had not searched, but believed to be lost, was admitted. The principle extends to documents of more grave significance, if it appears, when the witness is examined, that no rational motive for keeping them existed. A deposition will not be rejected because the witness speaks of papers not produced, if it appear that the papers are such as would not probably be preserved for so great a length of time as had elapsed when the testimony was taken, or are not in the possession or power of the witness or the party offering the deposition: Tilghman v. Fisher, 9 Watts 441. The principle is especially applicable to the contents of family letters received by a witness in a foreign country. The evidence should have been admitted.

The court rejected that part of the deposition of Alexander Bauer, in which he said the church records at Odenheim, as well as in the whole of the Grand Duchy of Baden, "are now kept by authority of the Badish common law, established since the year 1810, and enacted by the grand duke then being, and of the edict of the 29th of May 1811. ...