American Life Insurance & Trust Co. v. Rosenagle

1. The stringency of the rule requiring search for documents and pi’oof of their loss to admit evidence of their contents, is proportioned to their character and value. 2. Slight proof of such loss, &c., is sufficient where the documents from their nature would have only transitory interest and there was no rational motive for keeping them. 3. A deposition will not be rejected because the witness speaks of papers not produced, if it appear they were received a long time before the deposition was taken, and are such as would not probably be preserved for so long, or are not in the power of the witness or the party; especially if family letters, received by the witness in a foreign country. 4. The law of a foreign country on a given subject may be proved by any person, though not a lawyer, or not having filled a public office, who has been in a position to render it probable he would make himself acquainted with it. 5. A pastor of a church in a foreign country testified, that church records of marriages, births, &e., had been kept according to the laws of the country, and he was the proper custodian of them and received by him from his predecessor. Held, that extracts from the records giving the genealogy of a family, sworn by him to be correct, were evidence in a question of identity. 6. Where proof is by a copy, an examined copy duly made and sworn to by any competent witness, is always admissible. 7. Pedigree includes not only descent and relationship, but also the facts of birth, marriage and death, and the times these events happened. 8. Such facts may be established by general report in the family, proved by a surviving member of it, where they occur incidentally and in relation to pedigree. 9. Evidence in this case by foreign depositions and documents of pedigree, to prove identity.

Error to the Court of Common Pleas of Luzerne county: Of January Term 1874, No. 293. This'was an action of debt, brought July 26th 1867, by Valentine Rosenagle and Maria his wife, in her right, against the American Life Insurance and Trust Company. The action was on a policy of insurance, dated January 9th 1867, issued by the defendants to Maria Ann Rosenagle, on the life of Maria Catharine Kring, who died April 19th 1867. The case was tried April 10th 1873, before Dana, J. The plaintiff gave in evidence the policy, which was accompanied by interrogatories propounded by the company to the applicant, with their answers and the applicant’s declaration. The third interrogatory and its answer were: “ Place and date of birth of the life proposed for insurance.” Answer: “Born at Baden, Germany, on the 2d day of February 1807.” The answers were signed “ Maria Catharine Kring by Maria Ann Rosenagle.” The declaration was: ' “T do hereby declare that the age of Mary Catharine Kring does not exceed sixty years; that she is now in good health, and does ordinarily enjoy good health, and in the foregoing proposal I have not withheld any material circumstance or information touching the past or present state of the health or habits of her life with which the American Life Insurance and Trust Company ought to be made acquainted. “ And I do hereby agree that this declaration, and the foregoing proposal, shall be the basis and conditions of the contract between myself and the said company; and that if any fraudulent or untrue allegation be contained herein, or in-the proposal, all moneys which shall he paid on account of such insurance shall be forfeited to the said company, and the policy of insurance made on the faith of this declaration and proposal, shall become null, void, and of none effect. “ Dated at Scranton, Pa., this 9th day of January, A. D. 1867. Maria Katharina Kring, by Maria Anna Rosenagle.” “ £I, Mary Ann Rosenagle, do declare that I have an interest in the life of the aforesaid Mary Katharine Kring to the full amount of the sum to be insured.’ Maria Anna Rosenagle.” After giving evidence of the time and circumstances of Mrs. Kring’s death, the plaintiff rested. The defendant gave in evidence the deposition of Francis J. Dehold, taken on commission, at Raden, Germany. He stated that Mrs. Rosenagle was his cousin-German. To the sixth interrogatory he said: “ I wms acquainted with Maria Catharine Hermann. She was the sister of my mother. Firstly she was married to the master locksmith Kring, of Odenheim. From this marriage the daughter Mary Ann Rosenagle is descended. Mr. Kring, master locksmith, and his wife, were generally known at Odenheim as duly married, man and wife, and living in legal matrimony. I was acquainted personally with the daughter, Mary Ann Rosenagle, before she was married. She came into my house with Valentine Rosenagle, her bridegroom, then being. About the age of Maria Catharine Hermann, I cannot give any nearer information, nor about the time of her marrying.” To the first cross-interrogatory he said: ££ As I said already, I was personally acquainted with Maria Catharine Hermann. I saw her for the last time at Odenheim, but cannot now say when it was.” To the second cross-interrogatory he said: ££ I repeat that I was personally acquainted with Maria Catharine Hermann, [and by the letters which Rosenagle and his wife addressed to me from Scranton, I came to know that she died in the said town. Rosenagle and his wife did write to me many times, but have not more their letters.”] The plaintiff objected to the part of the answer in brackets; it was rejected by the court and a bill of exceptions sealed. They gave in evidence the deposition of Alexander Bauer, also taken at Baden on commission. He said he was Catholic dean and parson at Odenheim ; he did not know either of the parties to the present suit. The second interrogatory was: “Are there any church or parish records kept, showing the births, baptisms, marriages and deaths in Odenheim, and by authority of what law are they kept? State particularly what law, when the law was enacted, and by what authority.” He answered : “ There are kept at Odenheim, as well as in the whole Grand Duchy, church records, showing the births, baptismals, marriages and deaths. “ [They are now kept by authority of the Badish common law, established since the year 1810, and enacted by the Grand Duke then being, and of the edict of the 29th May 1811. Before this time they were kept according to the laws of the country then established.”] The plaintiff objected to the part of the answer in brackets; it was rejected by the court and a bill of exceptions sealed. He proceeded: “ These records have already existed many centuries, and each parson receives the church books from his predecessor, which all together form one continued series. I am the proper keeper and custodian of said records. There are among these records indeed, records of the birth, baptism and marriage of Maria Catharine Hermann. The papers here produced contain a duly legalized extract thereof (No. 1 Exhibit). “ The record contains also the birth of the children of Joseph Hermann and his wife Elizabeth, born Riedel. I here produce an extract of the same (Exhibit No. 2).” He said, also, that he did not know Maria Catharine Hermann, and did not know that she was the identical woman who died in Scranton, and whose life was insured by defendants. Exhibit No. 1 was : [Seal.] [Stamp.] “ Extract. Page 254, § 48, Anno 1798. “ 1. In the year of our Lord 1798, on the 17th day of the month October, I the undersigned, Joannes Bapt. Brennig, pastor, baptized an infant, born on the same day, about the fifth morning hour, of Joseph Hermann, citizen, and Elizabeth, born Riedel, lawful consorts of this parish, to which was given the name Maria Cathrina. * * * Therefore the undersigned, in their own hand, attest with me. Joseph: Hermann, Karl Romele, School Teacher, and I, Joannes Bapt: Brenniu, Pastor to St. Michael, the Archangel, of the place Odenheim.” The defendants then offered in evidence Exhibit No. 2, viz.: The'consorts Joseph Hermann and Elizabeth, born Riedel, begot during their marriage the following children : Maria Franziska, born 21st April 1788; Eranz Peter, born 20th October 1790; Eranz Joseph, born 26th April 1793; Theresia, born 27th December 1795; Maria Kathrina, born 17th October 1798; Karl, born 12th June 1800; Johan Baptist, born 30th October 1805. Transcribed from the book of births of the parish of Odenheim. 'Odenheim, the 17th September 1868. Bauer, Pastor. Eor the correctness of this transcript and the signature of the official pastor Bauer. Bruchsal, the 17th September 1868. [Seal] The Grand District Court. Fischer, vide Schneider. This exhibit was at first admitted, and afterwards stricken out on demurrer by the plaintiff and a bill of exceptions sealed. The defendant then gave in evidence a second deposition of Francis J. Debold. To the third interrogatory, of which he said : , [“ My mother, who is dead, was born Frances Hermann, of Odenheim and had the following brothers and sisters : Francis Peter Hermann, born 20th October 1790; Francis Joseph Hermann, born 26th April 1793; Charles Hermann, born 12th June 1800; Frances Hermann, born 21st April 1788; Theresa Hermann, born 27th December 1795.”] The plaintiffs objected to the part in brackets ; it was rejected by the court and a bill of exceptions sealed. “Mary Catharine Herman, born 17th October 1798. Here it is to be remarked that Frances Hermann is my mother. Of all these none is yet living except Theresa Hermann.” * * * To the fourth interrogatory he said: “ I was acquainted with Mary Ann Rosenagle in her infancy, and, indeed, when she was at the age of three or four years. Then she lived with her parents at Odenheim, or properly, only with her mother, who was the above-named Mary Catharine Hermann. The latter was said, at the time when I became acquainted with the female plaintiff, to have been a widow already, and to have been married formerly to the master locksmith, Kring, of Odenheim. When the female plaintiff was at the age of four years, her mother removed with her to Schriesheim, and there she remarried, but I do not know to whom. From Schriesheim they emigrated then to America. In the time when I was acquainted with the female plaintiff, she had no brothers or sisters. The female plaintiff was born, I think, about the year 1830. I do not know it exactly; I can but remember that I am a few years older than she.” The defendant offered “authenticated copies of the laws of Baden and of the edict of 29th of May 1811,” to which certificates were attached as follows: “ No. 3251. “It is hereby certified that the sections of the Common Law of the Grand Duchy of Baden and of the Statute of the Grand Duke passed on the 29th day of May, eighteen hundred and eleven, contained in the above extracts, agree verbally with the copies of these laws as they are recognised by the courts, and that these laws are now in full force and power for the whole Grand Duchy, and that Mr. Wolf, counsellor-at-law, who has signed the extracts and the translation thereof, has been sworn as interpreter of the English language. Carlsruhe, the eighth day of October 1868. The Circuit and Supreme Court of the Grand Duchy: section of the Common Pleas. [Court Seal.] Berger.” “No. 584. “ I certify the above document. Carlsruhe, October 31st 1868. Ministerium of the Exterior, Grand Duchy of Baden. (Signed) Borkh. Yost.” {Seal of the Secretary of Foreign Affairs, Grand Duchy of Baden. Attached was the consulate seal of the United States, as follows: “ No. 357. Consulate of the United States of America for the Grand Duchy of Baden: “ I, G. F. Kettell, consul of the United States of America, do hereby certify that Mr. Leopold Yost, whose name is subscribed to the paper hereunto annexed, was at the time of subscribing the same, Chief Clerk of the Department of Foreign Affairs for the Grand Duchy of Baden, duly commissioned to execute such acts, and that his signature thereto is genuine. In testimony whereof, I have hereunto subscribed my name and affixed the seal of the consulate aforenamed, in the city of Carlsruhe, the 31st day of October, a. d. 1868, and of the Independence of the United States of America the 93d. Seal of the Consulate of the U. S. at Badén. J Geo. F. Kettell, Consul of the United States.”, Then followed the sections of the law offered in evidence; they did not appear in the paper book. This was objected to by the plaintiff, rejected by the court, and a bill of exceptions sealed. Herman Eromberger was called by the plaintiff in rebuttal; he testified that he had an interview with Mrs. Kring in 1856. On cross-exapiination, he said that she told him where she was born. On re-examination, plaintiff proposed to ask witness what she said as to the time when she was born, and to give the whole conversation of which, on cross-examination, he has given a part. The defendants objected to the offer on the ground that Mrs. Kring’s declarations were not originally evidence, and have not been made evidence by the course of the cross-examination. It was admitted, and a bill of exceptions sealed. Witness said that she said, she was born 2d of February 1807, in Germany, in Manheim; her father’s second name was Hermann. There was other evidence, by plaintiff, tending to show that Mrs. Kring was not the person referred to in the depositions, and generally to answer defendants’ case. The verdict was for the plaintiff for $5167.49. The defendants took a writ of error, and assigned for error: 1. Eejecting the portion of the testimony of Debold as to the letters addressed to him by plaintiff. 2. Eejecting the portion of the testimony of Bauer as to the keeping of the church record of Odenheim. 3. Eejecting “ Exhibit No. 2,” attached to Bauer’s deposition. 4. Eejecting the portion of Debold’s second deposition included in brackets. 5. Eejecting the copies of the laws of Baden, &c. 6. Admitting the testimony of Fromberger as to Mrs. Kring’s statement of her age.