Collins v. The German-American Mutual Life Association of Burlington, Iowa

• Decision Date: 18 April 1905
• Citation: 86 S.W. 891,112 Mo.App. 209
• Parties: COLLINS, Appellant, v. THE GERMAN-AMERICAN MUTUAL LIFE ASSOCIATION OF BURLINGTON, IOWA, Respondent
• Court: Missouri Court of Appeals

86 S.W. 891

112 Mo.App. 209

COLLINS, Appellant, v. THE GERMAN-AMERICAN MUTUAL LIFE ASSOCIATION OF BURLINGTON, IOWA, Respondent

Court of Appeals of Missouri, St. Louis

April 18, 1905

Appeal from St. Louis City Circuit Court.--Hon. Wm. Zachritz, Judge.

AFFIRMED.

Judgment affirmed.

O. J Mudd for appellant.

The depositions from Ireland are private records. Defendant does not show that they were kept in compliance with any public law of Great Britain or Ireland. It is not shown that there was at the time the records were made any rule or custom of the Catholic Church requiring them to be kept. Under these conditions they lack the essential requisites of legal evidence. Haile v. Palmer, 5 Mo. 403; Childers v. Cutter, 16 Mo. 24; Morrissey v. Ferry Co., 47 Mo. 524; Moore v. Mfg. Co., 113 Mo. 109, 20 S.W 975; 1 Greenleaf on Ev. (15th Ed.), sec. 493, p. 641, secs 483-4, page 631; 2 Burr W. Jones on Ev. (Pony), sec. 522, p. 1163.

W. C. & J. C. Jones for respondent.

OPINION

BLAND, P. J.

The suit is on a policy of insurance. The petition is in the usual form and alleges such facts as, if true, would entitle plaintiff to recover. The answer admitted all the allegations of the petition, except it set forth, as an affirmative defense, a breach of warranty by the insured, in that, in her application for the policy, she misrepresented and falsely warranted her age; that she warranted herself not to be older than fifty-nine years at the date of the making of the contract of insurance, when in fact she was seventy-two years of age. And it is further alleged in answer that defendant is an insurance company doing business only on the assessment plan. On the trial this latter allegation of the answer was admitted, also that the defendant was restricted and limited by its charter to conducting insurance business on the assessment plan. On the pleadings the trial was restricted to one issue, to-wit: whether or not the insured warranted her age and whether there was a breach of warranty in respect to her age. The court properly ruled that the burden of proof was on defendant, and the defendant assumed the burden.

To establish its defense defendant read the following from the application for insurance:

"Q. Applicant's age at nearest birthday? A. Fifty-nine years."

Also the following clause in said application:

"I hereby agree that the foregoing statements and answers are by me warranted to be complete and true, and are offered to said association as a consideration of the contract; and I further agree that failure to comply with any of the terms of this agreement, or with any of the conditions and agreements contained in the certificate of membership (should one be issued) then this agreement shall become null and void, and all moneys which have been paid shall be forfeited to the association, for its sole use and benefit."

Defendant also read from the proofs furnished it by plaintiff the following extract from plaintiff's affidavit:

"My name is Maggie Collins; I reside at Colorado Springs, Colorado. Anna Collins had one brother named Michael Hackett, who died in Ireland, and one sister named Mary Whalen. She left surviving her two children, Martin Collins, who was born in Ireland, and Maggie Collins, who was also born in Ireland. I (Maggie Collins) was born in Clonmel, Tipperary County Ireland. My father's name was Richard Collins, who was born at the same place. My mother's name was Anna Stacia Collins; she was born in Clonmel, Tipperary, Ireland, and was married at the same place."

Defendant then offered in evidence the affidavit of Franciska Bierman, in which he stated that he had known deceased for ten years and that she was seventy-five years old at her death.

Defendant then offered depositions taken in Ireland, to which plaintiff objected on the ground that the subject-matter of the same is "irrelevant, incompetent and immaterial, because certified copies of church records attached as exhibits are but private writings, and as such, incompetent, irrelevant and immaterial as evidence to prove any issue in this cause. That no public law of the kingdom of Great Britain or Ireland, is shown to require such records to be kept and as such reports were not required to be kept by public law at the time and place where they were made, they are but private writings, and hence incompetent. And further, it does not appear that there was at the time such records were made, any public law requiring them to be made and kept. Nor was there any custom or rule of the Catholic Church at such time and place to make and keep such records."

The objections were overruled by the court and the plaintiff excepted to the ruling of the court, and saved her exceptions.

The depositions consist of the following exhibits:

Exhibit A, headed, "Baptismal Certificate St. Mary's Parish, Clonmel." Said certificate, (exhibit A.) states and expresses upon its face:

"Name of infant, Bridget Collins; baptized twenty-eighth May, 1846; parents, Richard Collins, Annastasia Hackett. Clergyman, Rev. P. Meany. Sponsors, Michael Fahey and Margaret Houlahan."

The certificate is subscribed and attested as follows:

"I have extracted the above from the Parochial Register of Baptisms of St. Mary's and certify that the same is a true copy of the original entry. Given at St. Mary's Presbytery this fourteenth day of April, 1898.

"W. W. MEAGHER, C. C., Parish Priest.

"St. Mary's Clonmel."

Said exhibit has written on the face with pen and ink the following names:

"John C. Ryan, LL. B., Solicitor; John F. O'Brien, Town Clerk of the Borough of Clonmel; Cornelius J. Flavin; Richard J. Crean; John F. O'Brien, Town Clerk of Clonmel Borough."

Exhibit B, headed, "Baptismal Certificate, St. Mary's Parish, Clonmel." This certificate upon its face expresses the following:

"Name of infant, Annastasia Hackett, baptized twenty-ninth February, 1818; parents, Martha Hackett and Bridget Tobin. Clergyman, Rev. J. Baldwin. Sponsors, Simon Delaney and Margaret Maher."

The certificate is attested and signed as follows:

"I have extracted the above from the Parochial Register of Baptisms of St. Mary's and certify that the same is a true copy of the original entry. Given at St. Mary's Presbytery, this ninth day of March, 1898.

"C. J. FLAVIN, Parish Priest.

"St. Mary's, Clonmel."

This certificate has written on its face in ink the following names:

"John C. Ryan, LL. B., Solicitor; John F. O'Brien, Town Clerk of Clonmel Borough; Cornelius J. Flavin; Richard J. Crean. Solicitor; John F. O'Brien, Town Clerk of Clonmel Borough."

Exhibit C. This certificate is headed, "Baptismal Certificate, St. Mary's Parish, Clonmel," and expresses and purports upon its face in printing and ink as follows:

"Name of infant, Lucy Collins; baptized tenth April, 1849. Parents, Richard Collins and Amnastasia Hackett. Clergyman, Rev. D. Crotty. Sponsors, John Flynn and Margaret Crane."

And has in printing and writing at the bottom the following:

"I have extracted the above from the Parochial Register of Baptisms of St. Mary's and certify that the same is a true copy of the original entry. Given at St. Mary's Presbytery this fourteenth day of April, 1898.

"W. MEAGHER, C. C., Parish Priest.

"St Mary's Clonmel."

And has written in ink on the face of it the following names:

"John C. Ryan, LL. B., Solicitor; John F. O'Brien, Town Clerk of Clonmel Borough; Cornelius J. Flavin; Richard J. Crean, Solicitor; John F. O'Brien, Town Clerk of Clonmel Borough."

Exhibit D, headed, "Baptismal Certificate, St. Mary's Parish, Clonmel," and expressed upon its face the following:

"Name of infant, Mary Annie Collins; baptized fourth May, 1848. Parents, Richard Collins and Annastasia Collins or Hackett. Clergyman, Rev. P. Meany. Sponsors, Jeremiah Keily and Ellen Ryan."

Certified and signed as follows:

"I have extracted the above from the Parochial Register of Baptism of St. Mary's and certify that the same is a true copy of the original entry. Given at St. Mary's Presbytery this fourteenth day of April, 1898.

"Wm. MEAGHER, Parish Priest.

"St. Mary's Clonmel."

This certificate has written upon its face the following names:

"John C. Ryan, LL. B., Solicitor; John F. O'Brien, Town Clerk of Clonmel Borough; Cornelius J. Flavin; Richard J. Crean, Solicitor; John F. O'Brien, Town Clerk of Clonmel Borough."

Exhibit E, is headed, "Baptismal Certificate Extracted from the Baptismal Register of S. S. Peter and Paul's, Clonmel," and expressed the following:

"Name of infant, Margaret Collins, Parents, Richard Collins, Annastasia Hackett. Baptized twenty-fifth September, 1853. Clergyman, Rev. Robert Henebry. Sponsors, Maurice Cummins, Ellen Hearn."

And has the following certificate:

"Certify the above to be correct. Clonmel, May fifth, 1898. Thomas McDONNELL, P. P. V. G., Dean of the Diocese of Waterford and Lismore."

This certificate has written on it with pen and ink the following:

"John C. Ryan, LL. B., Solicitor; John F. O'Brien, Town Clerk of Clonmel Borough; Richard J. Crean. Solicitor; John F. O'Brien, Town Clerk of Clonmel Borough. Wm. M. Casey, Clerk of Petty Sessions, Comr. of Affidavits, etc., John F. O'Brien, Town Clerk of Clonmel Borough."

Exhibit G, headed, "Marriage Certificate, Roman Catholic Parish of SS. Peter and Paul, Clonmel," and expresses upon its face the following:

"Name of parties married, Richard Collins, Annastasia Hackett, date of marriage, July 7, 1844. Names of witnesses, John Grady, Ellen Doheny. Name of Clergyman who officiated, Rev. Robt. Henebry" and is certified as follows:

"Clonmel, Feb. 21, 1899.

"I certify the above to be correct.

"THOMAS McDONNELL, P. P. (Dean) V. G.

"Diocese of Waterford and Lismore."

The...