Scallen v. Heustis

• Decision Date: 07 June 1965
• Docket Number: No. 53,53
• Citation: 376 Mich. 64,135 N.W.2d 426
• Parties: John Peter SCALLEN, Plaintiff and Appellee, v. Albert E. HEUSTIS, State Health Commissioner, Defendant and Appellant.
• Court: Michigan Supreme Court

Page 426

135 N.W.2d 426

376 Mich. 64

John Peter SCALLEN, Plaintiff and Appellee, v. Albert E. HEUSTIS, State Health Commissioner, Defendant and Appellant.

No. 53.

Supreme Court of Michigan.

June 7. 1965.

James E. Haggerty, Edward P. Echlin, Detroit, Edmund E. Shepherd, Lansing, of counsel, for appellee.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Donald T. Kane, Victor H. Meier, Asst. Attys. Gen., Lansing, for appellant.

Before the Entire Bench, except KELLY, SMITH and ADAMS, JJ.

SOURIS, Justice (for vacation of order).

This appeal is taken by leave granted from an order of the trial court directing the defendant State health commissioner to change the birth records of the health department to show February 13, 1890 as the date of birth of plaintiff, a judge of the recorder's court of the city of Detroit. A statutory hearing in circuit court was held upon a petition filed December 21, 1960, pursuant to C.L.S.1961, § 326.17 (Stat.Ann.1956 Rev. § 14.237), after the health commissioner had refused plaintiff's request to make such change in his record of birth.

Plaintiff claims that until 1956 he believed he had been born on February 13, 1889, and had so listed his date of birth whenever it was required as, for example, in executing his membership form for the judges' retirement system on January 26, 1952. In July of 1956 plaintiff was asked to furnish proof of his age to the retirement system and, in the course of trying to do so, he alleges he discovered discrepancies in public birth records relating to him. He now avers that he was born on February 13, 1890.

In plaintiff's attempt to establish February 13, 1890 as the date of his birth he alleges that the official State and county records of his birth are in error. There is no doubt that some of those records are wrong, since the date shown for his birth in the records of Wayne county varies from February 13, 1888 to February 18, 1889. ¹ One thing, however, is certain about the records: none of them provides even the slightest basis for assuming that plaintiff was born in 1890.

To establish his birth occurred on February 13, 1890, plaintiff relies solely upon two affidavits. One affidavit was given by Mary C. Cooney, sister of plaintiff, who was born November 24, 1885. She avers that as of the day of the burial of plaintiff's brother Cornelius, April 14, 1889, when she was three years four months and 21 days old, 'she is positive of her own knowledge' that plaintiff was not yet alive. She further avers that 'frequently during her lifetime her mother, in family discussions said, 'She was carrying John shortly after the burial of Cornelius." Upon this basis Mrs. Cooney 'believes [plaintiff] was born on February 13, 1890 * * *.'

A second affidavit was filed by Margaret S. Hoelscher, a cousin of plaintiff, who was born February 19, 1884. She, too, alleges as her recollection that at the time of Cornelius' death plaintiff was not alive, but, like Mrs. Cooney, she has no recollection of the actual date or year of plaintiff's birth. She makes reference to family tradition, but without identifying its source, from which, if true, it might be inferred that plaintiff was born in 1890.

Defendant objected to the admission into evidence of both of these affidavits on the ground that they contained hearsay evidence. The representations in the affidavits as to plaintiff's family history, based upon declarations made by others than the affiants and offered to prove the truth of the matters stated, were hearsay. There is, however, a well-established exception to the hearsay rule in the case of statements regarding family history. If the declarant who made the statement sought to be introduced as hearsay were related by blood to the person about whom the statement was made, or if the declarant were the spouse of someone so related, the statement may be admitted if the declarant be dead. Lamoreaux v. Attorney General (1891), 89 Mich. 146, 160, 50 N.W. 812.

Testing the affidavits by this standard the hearsay contained in Mrs. Cooney's affidavit was admissible. It consisted of statements alleged to have been made by plaintiff's mother, who is now deceased, prior to the dispute they were introduced to resolve and without any apparent motive to deceive. Such cannot, however, be said of the affidavit of Mrs. Hoelscher. She gives no source for her hearsay evidence relative to plaintiff's birth date. For all that appears in her affidavit the unidentified declarant might still be alive. When hearsay evidence as to family history is admitted, the declarant must be identified in order that the trier of fact have some basis for determining the credence to be given such evidence. Since Mrs. Hoelscher's affidavit did not specify the declarant, its hearsay was inadmissible. See Rule 63(24) of the Uniform Rules of Evidence. ²

All of the official State and county records, the veracity of which plaintiff disputes, agree in at least this respect: that plaintiff was not born in 1890, but, rather, was born sometime before. In addition, the record of the United States census department, a copy of which plaintiff himself submitted to the State health department, shows that in the federal census of 1900 plaintiff's birth date was recorded as February, 1889.

For over 65 years plaintiff believed he was born in February, 1889, and it does not appear in the record that any of his numerous family ever tried to disabuse him of this belief. Moreover, plaintiff testified that in his efforts to document his birth date he checked the records of the high school and college he attended and that 'they had a record of an age, but not of a date of birth.' These early records, which at least gave plaintiff's age, were not introduced into evidence by him. It could be inferred from this omission on his part that the age as shown in the school records would not have supported his contention that he was born in 1890. See cases collected and cited at pp. 285-286 of Prudential Insurance Company of America v. Cusick (1963), 369 Mich. 269, 120 N.W.2d 1. Plaintiff also testified that he had consulted the national archives for a record of his birth, but was unsuccessful since 'prior to 1890 all records had been destroyed by fire.' Had plaintiff been born in 1890 as he claims, such fires would not have destroyed records of his birth.

This appeal from the above cited special statutory proceeding, not in the course of the common law, must be viewed as an appeal in the nature of certiorari. See Jackson v. The People (1860), 9 Mich. 111, 117-118. Certiorari is one of the writs superseded by orders of superintending control, GCR 1963, 711.3, but the scope of our review by order of superintending control in circumstances such that certiorari previously would have issued is identical with the scope of our review by that common law writ. Thus, our review in this case is confined to questions of law.

'The office of a certiorari is not however to review questions of fact, but questions of law. And in examining into the evidence the appellate court does so not to determine whether the probabilities preponderate one way or the other but simply to determine whether the evidence is such that it will justify the finding as a legitimate inference from the facts proved, whether that inference would or would not have been drawn by the appellate tribunal. * * *' Jackson v. The People, supra, p. 120.

If the trial court's finding that plaintiff was born on February 13, 1890 is to be affirmed, evidentiary support therefor must be found in the admissible portions of the two affidavits, for all of the other pertinent admissible evidence disputes that finding tending, instead, to support a finding that plaintiff was born prior to 1890. Had either affidavit contained a positive assertion of affiant's own knowledge that plaintiff was born on February 13, 1890 or on personal knowledge, notwithstanding affiants' tender years at the time of occurrence of the event, that plaintiff was not born prior thereto, our appellate task would be ended because such evidence clearly would have supported the trial court's finding.

However, nowhere in Mrs. Hoelscher's affidavit is there any admissible evidence bearing on the issue except that plaintiff was not alive at the time of his brother's burial and nowhere in Mrs. Cooney's affidavit, relating to events 68 years earlier, does she, 72 years old when sworn, claim of her own knowledge that plaintiff was born in 1890. Indeed, although Mrs. Cooney asserts a distinct recollection of the death of Cornelius when she was three years four months and 21 days old, she makes no claim of personal memory of plaintiff's birth which she alleges, but only on information and belief, occurred on February 13, 1890 when she would have been four years, two months and 20 days old. She does assert of her own knowledge that plaintiff was not born at the time of Cornelius' burial, as does Mrs. Hoelscher, and that her mother frequently stated in family discussions during her lifetime that she was carrying plaintiff after the burial of Cornelius. We are not advised whether plaintiff's mother was carrying him before and at the time of burial. Nor are we advised why, if it was common currency in family exchanges that plaintiff's mother was carrying him after Cornelius' death, the plaintiff nonetheless persisted in his belief without question, even upon the most solemn occasions, for example, his marriage in 1915, that he had been born on February 13, 1889, before his brother's burial.

While Mrs. Cooney's affidavit, directly and by permissible inference, would have supported a finding that plaintiff was not born on February 13, 1889, as would, also, Mrs. Hoelscher's affidavit, there is no direct or inferential showing therein or otherwise that he was born, instead, on February 13, 1890. In order to conclude, as did not trial judge, that plaintiff was born on February 13, 1890, one must make the...