Gehr v. Fisher

Opinion, Mr. Chief Justice Paxson: All the controlling questions in this case were ruled in Sitler v. Gehr, 105 Pa. 577. This was not denied by the appellants, but we were urged to re-examine and re-consider those rulings with a view to a different judgment. In view of the importance of the interests, as well as the legal principles involved, I have examined that case with more than usual care, with a disposition to modify our rulings if found erroneous. Notwithstanding the zeal and ability with which the matter has again been called to our attention, I have been unable to find anything to shake our former views of the law of that ease. We do not deem it necessary now to re-enter upon its discussion. It would be in a great measure a repetition of what was there said. The only new question is raised by the sixth assignment, in which it is alleged the learned court below erred in refusing to admit in evidence the inscription on the tombstone of Margaret Croll, the wife of Michael Croll and sister of Philip Gehr, in the churchyard near Hamburg, Berks county, under the following offer, viz : “ It having been testified by Joseph Kutz that the sister of his grandfather, Margaret Croll, lived in Greenwich township, and was buried, as much as he knows, at the Smoke Church, near Hamburg, and it having been further testified by Jonas Kohler that Margaret, wife of Michael Croll, was buried in. 1832, at the church of Lebanon with the nickname of Smoke Church, now St. Paul’s, the defendants propose to prove that the said Margaret Croll was buried in 1832, at a church within two miles, or two miles and a half of Hamburg, and propose to give in evidence the record on the tombstone; this for the purpose of showing that she was Mrs. Margaret Croll, wife of [322] Michael Croll, the date of her death .and age, and that there is no tombstone showing such burial at the S.moke Church.” While the fact here offered to be proved was not offered in Sitler v. Gehr, the principle by which it must be decided was ruled in that case. I do not understand the offer to be more .than an attempt to show, that in a churchyard within two miles of Hamburg there is a tombstone, on which is inscribed th.e name of Margaret Croll, wife of Michael Croll, with a record of her age and death. Who this Margaret Croll was, the inscription does not inform us; but we are asked to infer from the similarity of name, and that alone, that she was a sister of Philip Gehr. I do not find any evidence in the case that Philip Gehr had a sister Margaret. Be that as it may, it appears by the testimony of Joseph Kutz that Joseph had two sisters, and that one of them married a man named Michael Croll, and the other married a Bast. But the same witness distinctly said that he did not know the first name of either sister. Jonas Kohler had testified that a Mrs. Croll, named Margaret, who was the wife of a Michael Croll, was buried in the Smoke Church in 1832. This offer was to prove the inscription on a tombstone of a Margaret Croll, who was not buried at the Smoke Church, but who was buried at St. John’s Church, two and a half miles from the Smoke Church. I do not see that this evidence would have damaged the plaintiffs’ case, had it been admitted. It might possibly have confused the jury, and we think was properly rejected. It involved at most a mere identity of name; and, as was said in Sitler,v. Gehr, “it would work great injustice if rights of property, after a great length of time, were allowed to depend upon mere identity of name. A prima-facie case thus submitted to a jury might be extremely difficult, if not impossible to disprove. I know of no case in which mere identity of name has been held sufficient, after the great lapse of time which exists here.” This principle was sufficiently discussed in Sitler v. Gehr, and I do not propose to add to it beyond the citation of the following additional authorities as bearing upon it: 1 Whart. on Ev., § 656; 1 Greenl. Ev., § 493; Wedgwood’s Case, 8 Greenl. 75; Berkeley Peerage Case, 4 Camp. 401; Mooers v. Bunker, 9 Fost. 431; Jackson v. Christman, 4 Wend. 283; American Life Ins. & Trust Co. v. Rosenagle, 77 Pa. 507. [323] The seventh and eighth assignments are but a re-arrangement of the offers of evidence in regard to the Lancaster county records, as we had them in Sitler v. Gehr, and as now presented do not disclose any substantial difference. Judgment affirmed.