Cupryk v. Ruthenian National Union
Cupryk v. Ruthenian National Union
Opinion of the Court
Opinion by
The appellee was a member of the appellant beneficial association and sues to recover under the provisions of a by-law, which gives to a member, on the death of his wife, a benefit of from two to four hundred dollars, according to the amount of insurance carried. The defense is made that the wife, at the time the appellee was admitted to membership, was over forty years of age. The by-laws provide: “......that the age of the wife or husband was not over forty years at the time of his admission into' membership.” The appellee testified from information received from his wife that when he made application for membership his wife was between thirty-eight and thirty-nine years of age. To contradict this testimony the appellant offered in evidence the husband’s application for membership, wherein he stated at the time he signed the application that his wife was forty-three years of age. The court refused to admit this evidence. We do not understand on what theory the court declined to' admit it. It was this application that led to the issuance of the plaintiff’s certificate on which this action is based. The objection to the offer was that it was vague and indefinite. For the purpose of contradiction and as affecting the credibility of the witness, the evidence was competent. An offer was made to show appellee’s oral admission at the time he signed the application that his wife was over forty. The court refused to admit this offer. This was error. The defendant further offered to prove that in the application of the wife, made cotemporaneously with her husband’s application, and upon which he has received the benefit, she made the statement that she was forty-three years of age. We think the offer was clearly competent for the purpose of proving the fact of age. It is not necessary to discuss whether the testimony of those who heard the wife’s declaration as to age is competent when it is used in the interest of her beneficiary to establish age. Generally the proof of pedigree, which includes descent, re
That portion of the charge embraced in the thirteenth assignment of error is incorrect. The plaintiff did not produce positive testimony showing the wife’s age. It is not necessary to offer birth records, or the evidence of persons who could testify from actual knowledge from childhood to death to prove age. If this evidence can be secured, it should be produced, but evidence of general repute in the family by those competent will be sufficient if family records are not obtainable. The value of the defendant’s evidence, as affecting appellee’s credibility, was greatly lessened by the court’s charge. The case did not warrant such instruction.
Assignments one to fourteen, inclusive, and the sixteenth assignment, are sustained. The fifteenth assignment, being the motion for a new trial, is not considered. The judgment is reversed and a venire facias de novo is awarded.
Reference
- Full Case Name
- Cupryk v. Ruthenian National Union of America
- Cited By
- 1 case
- Status
- Published
- Syllabus
- Beneficial associations — Benefits on death of wife — Age of wife— Application — Evidence. Where the by-laws of a beneficial association provide that a member shall receive an amount stated upon the death of his wife, provided the wife was under forty years of age when the member joined the association, and a member in a suit for such benefits testifies that his wife was under forty years of age when he joined the association, it is reversible error to refuse to admit in evidence his application for membership wherein he stated that his wife at the time was forty-three years of age; and it is also reversible error to refuse to admit evidence as to an oral admission made by the member at the time he signed the application that his wife was over forty. . • ' In such a case it is reversible error to exclude an application made by the wife for her own membership in the association made contemporaneously with her husband’s application in which she jstated that she was forty-three years of age. Such evidence is competent not only to contradict the husband’s testimony, but also as proof of the substantive fact of the age. It is not necessary to offer birth .records, or the evidence of persons who .could testify from actual knowledge from childhood to death to prove age. If this evidence can be secured, it should be produced, but evidence of general repute in the family by those competent will be sufficient if family records are not obtainable.