Grand Lodge, Ancient Order of United Workmen v. Bartes

Duffie, C.

This action is brought to recover upon a benefit certificate issued by the plaintiff in error to Joseph Bartes, the husband of the defendant in error, and in which she is named as the beneficiary. The only defense urged, and the only question tried, was the age of the decedent at the time of making application for admission to the order; section 3 of article 2 of its constitution and by-laws providing that “no person shall be admitted to membership in the order except that he be a white male of the full age of twenty-one years and under forty-five years at the time of receiving the-workman degree.”

Joseph Bartes’ application for beneficiary certificate bears date June 29, 1894, in which he states that he was born on the 25th day of December, 1.849, at Moravia, Europe. He died as the result of an accident on February 25, 1898. In the investigation following his death the plaintiff in error obtained from Mrs. Bartes what is termed a “birth certificate” of her husband, in which it is recited that he was born on the 23d of December, 1846. On the trial, no witness made any direct statement as to the age of Joseph Bartes, but his mother testified that she was married to his father on February 3, and on Christmas of the same year of the marriage her son Jospeh was born; that his father died in January, 1900, and that she had lived with him fifty years, lacking about three weeks; that they were preparing to celebrate their golden wedding at the time of his death. Accepting this as a correct statement of the facts, it would establish that Joseph Bartes, the deceased, would have been fifty years of age on the 25th of P member, 1900, and that he was born in 1850. On her direct examination the plaintiff in error testified as follows :

Q. Mrs. Bartes, do you know how old Mr. Bartes was when you married him?

A. Yes, sir.

Q. You may state how old he was when you married him. .....

A. He was twenty-seven years old.

Q. How long were you married to him before he died?

A. It would be twenty-five years if he was living now.

Q. Would it be twenty-five years this year?

A. Yes, sir, this fall at All Saints day.

She could not give the year of the marriage but, as her husband had been dead two years, her testimony corroborates that of her mother-in-law, and fixes the age of Joseph Bartes at the time of his death between forty-seven and forty-eight years. On crossrexamination Mrs. Bartes testified as follows:

Q. How long had you known Mr. Bartes before your marriage?

A. I only knew him when I was married.

Q. Did you know Mr. Bartes a year before you married him?

A. No, sir.

Q. How do you know that your husband, Joseph Bartes, was twenty-seven years of age, twenty-five years ago, when you married him ?

A. From the publication of the banns. * * *

Q. Is the only way that you know the age of your husband, Joseph Bartes, at the time of your marriage, what the priest announced at the banns?

A. No other way.

Q. In speaking about the banns being announced, do you mean, that the preacher or priest announced it from the pulpit to the congregation that you and Mr. Bartes were engaged?

A. Yes, sir.

Q. Announced it orally?

A. Yes, sir.

Q. Now, from the time that you heard the announcement made by the priest of the banns of marriage, have you ever had occasion to think of or consider your husband’s age until this case was begun?

A. I never did.

Q. You never talked with your husband about his age?

A. No, sir.

Q. And any information about your husband’s age was gained from the announcement made by the priest at the time the banns of marriage were announced?

A. Yes, sir, that is it.

At this point the defendant moved the court to strike out all the evidence of Mrs. Bartes as to the age of her husband, for the reason that there was no foundation laid for such evidence and the witness had not shown herself competent to testify as to his age, and that the only statement as to his age is the statement made by the priest who announced the banns, the same being hearsay and an improper method of proving age. This motion was overruled and defendant excepted.

The date of a person’s birth may be testified to by himself or by the members of his family, although he must, and they may, know the fact only by hearsay based on family tradition. No rule is better established than this one; and when it is shown that the witness is a member of the family of the person whose age is the subject of inquiry, the presumption obtains that the witness is competent without laying any foundation therefor; but on cross-examination it may be shown that, although a member of the family and prima facie qualified to testify as to age or pedigree, the witness is not qualified, either because he has no knowledge in fact on the question involved, from not having heard it discussed, or that his opportunities for obtaining knowledge on the question have been insufficient to make him a competent witness. Harland v. Eastman, 107 Ill. 535.

In the case cited, it is said:

“Such conversations may have been such in extent and variety, and may have been held under such circumstances, as to enable a witness to say that such was the reputation in the family, but such conversations may not have been such. The witness surely could not be permitted to swear to any specific thing which his wife, or either of her uncles, had said in his hearing, because they are all living, and their sworn testimony is better than their unsworn statements. It follows, the witness cannot properly be allowed to state his conclusion from such unsworn statements, unless all of them taken together, with their surroundings, enable him to say such was the accepted state of the case in the family, or snch was the uncontradi'cted repute in the family.”

Mrs. Bartes, on her cross-examination, gave the source of her information as to the age of her husband at the date of her marriage. This information came from the priest and not from any member of the family; and she further testified that it was the only information relating to his age, at that time, of which she was possessed. In this state of the case we have no hesitation in saying that she showed herself incompetent to testify, and that it was error not to exclude her testimony upon the motion made therefor. It is true that she was afterward recalled and the following question asked her:

Q. Mrs. Bartes, was it not talked of between you and your husband; that is, I mean, when you were together did you not sometimes talk over the fact of hoAV old you Avere or how old he was?

A. We never talked about our age; once in a while he spoke of his birthday, once in a Avhile Ave talked of our birthdays. She further testified that both her father-inlaAV and mother-in-laAV lived with them in their family; and was then asked this question:

Q. NOAAr, Mrs. Bartes, in your talks — that is in your family talks between your husband and yourself and his father and mother — was it ever talked of Iioav long you had been married to your husband and hoAV long you lived together; that is, before his death?

A. Yes, sir, it Avas talked. ¡

Q. Now, Mrs. Bartes, from your living together with 'the father and mother of Joseph Bartes, your husband, and they with you, do you know what day their wedding anniversary came in the year?

A. Yes, sir, it came on the 2d of February.

1. Competency of Wife to Testify to Age of Husband. The plaintiff, ■wife of tbe deceased with, whom she had lived for twenty years before his death, and to whom she had talked regarding his birthday at different times, and who had a general acquaintance with the family history and tradition, held to be a competent witness to testifiy as to the age of her deceased husband. 2.-: Presumption. A wife who has lived for twenty years with her husband will be presumed to know his age and to be qualified to testify thereto, unless the contrary clearly appears from the record. S. Dato of Birth: Evidence. The date of a person’s birth may be testified to by members of his family, although they may know of the fact only by hearsay founded on family tradition. 4. Qualification of Witness. Because the first knowledge obtained by a wife as to her husband’s age' is derived from an incompetent source, this will not disqualify her from testifying as to his age, where, hy reason of her membership in the family, knowledge of ■ such fact is obtained from other sources to which no valid objection applies.

It is insisted that, because of these people all living together, she was qualified to speak of the age of her husband at the time of their marriage. Presumptively this is true, but, as before stated, she by her own declarations has shown her disqualification, her only knowledge upon that subject having come from the declaration of a priest whom it is not claimed would be qualified as a witness upon that question. What weight the jury may have attached to this testimony we can not of course say, but it was submitted to them with other competent testimony as to the age of Joseph Bartes and it may, or may not, have controlled their verdict. For the error in submitting this evidence to the jury, we recommend a reversal of the judgment and that the cause be remanded for another trial.

Pound and Kirkpatrick, CC., concur.

By the Court:

For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause remanded for another trial.

Reversed.