Prudential Ins. Co. of America v. Pierce's Adm'x

• Decision Date: 19 October 1937
• Citation: 109 S.W.2d 616,270 Ky. 216
• Parties: PRUDENTIAL INS. CO. OF AMERICA v. PIERCE'S ADM'X.
• Court: Kentucky Court of Appeals

109 S.W.2d 616

270 Ky. 216

PRUDENTIAL INS. CO. OF AMERICA v. PIERCE'S ADM'X.

Court of Appeals of Kentucky

October 19, 1937

Appeal from Circuit Court, Whitley County.

Action by Ballard Pierce, revived on his death by his administratrix, against the Prudential Insurance Company of America. From a judgment on a verdict for plaintiff defendant appeals.

Reversed.

Tye Siler, Gillis & Siler, of Williams-burg, for appellant.

Hiram H. Owens, of Barbourville, for appellee.

STANLEY Commissioner.

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 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, 168 Ky. 466, 182 S.W. 619; Allcock v. Allcock, 174 Ky. 665, 192 S.W. 853. All the knowledge she had of this matter had come by her husband having the Bible in their home. Her incompetency is also declared by subsection 2 of section 606, Civil Code of Practice, providing that no person shall testify for himself concerning any transaction with or act done or omitted to be done by one who is dead. The widow had a beneficial interest in the proceeds of the policy. Ætna Life Insurance Company v. Prater's Adm'x, 259 Ky. 665, 83 S.W.2d 17. But there was no objection to her testimony describing the Bible and its disappearance. From that, in connection with the competent testimony of her daughter, we have only the description of an old Bible, of pocket size, containing old writing, and a date in it purporting to be the age of the one who had it in possession.

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, 232 Ky. 741, 24 S.W.2d 560. We may, however, deem the circumstances of its disappearance as a sufficient predicate and the testimony in that respect to have been competent. Chilton's Adm'r v. Shelley, 243 Ky. 576, 49 S.W.2d 305. The question is whether the meager quality and quantity of proof concerning the Bible and the entry about which the oral evidence related was a sufficient authentication to bring it within the exception to the hearsay rule which permits the establishment of age by such records.

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., 240 Ky. 169, 38 S.W.2d 954. Any entry made by a deceased parent or other relative is regarded as the declaration of such parent or relative. The rule of admissibility of entries in a family Bible is even more relaxed. Upon proper authentication of the book as being a family Bible, with circumstances showing the entry of births, deaths, and marriages to have been approximately contemporaneous with the occurrence, the record is acceptable as evidence without proof that the entry was made by any particular person. "The fundamental idea of authentication is to connect the writing with the person alleged to be its author." Section 1496, Wigmore on Evidence. The acceptance of the record is that of it being the family history or reputation. It is upon the ground that the entries are presumed to be known by the members of the family and to have been adopted as correct. Sections 1148, 1149, Jones' Commentaries on Evidence; sections 1480, 1496, Wigmore. The probability of its accuracy is a "substantial guarantee for trustworthiness." Section 1482, Wigmore. Its...