Masonic Mutual Benefit Socirty v. Lackland

• Decision Date: 04 March 1889
• Parties: Masonic Mutual Benefit Society v. Lackland et al., Executors, et al., Appellants
• Court: Missouri Supreme Court

10 S.W. 895

97 Mo. 137

Masonic Mutual Benefit Society v. Lackland et al., Executors, et al., Appellants

Supreme Court of Missouri

March 4, 1889

Appeal from St. Louis City Circuit Court. -- Hon. W. H. Horner Judge.

Affirmed.

Krum & Jonas for appellants.

An expert cannot be called upon for an opinion, where its expression operates merely to substitute the expert for the jury. The opinions of witnesses should not be received as evidence, where all the facts upon which such opinions are founded can be ascertained and made intelligible to the court or jury. City v. McGiven, 78 Ill. 347. So questions to witnesses, called as experts, are improper which, failing to embody facts hypothetically, directly called upon the witness to put himself in place of the jury, and pass upon the whole issue. Railroad v. Moffit, 75 Ill. 524.

A. C Stewart, Boyle, Adams & McKeighan and S. B. Jones for respondent.

"All rules of evidence are adopted for practical purposes in the administration of justice and must be so applied as to promote the ends for which they were designed. Thus the rule under consideration (requiring the best evidence) is subject to exceptions where the general convenience requires it." 1 Greenl. Ev. sec. 83. "A further relaxation," says the same author (sec. 93), "has been admitted where the evidence is the result of voluminous facts, or of the inspection of many books and papers, the examination of which could not conveniently take place in court. * * * So also a witness who has inspected the accounts of the parties, though he may not give evidence of their particular contents, may be allowed to speak to the general balance without producing the accounts."

OPINION

Sherwood, J.

Action on the bond of Luke, who was secretary of the association, Gerard B. Allen and Edwin Harrison being his sureties. By way of avoidance of the bond, the defendant sureties pleaded that prior to its execution Luke had been a defaulter to the association, that this fact was well known to the executive committee and the officers of plaintiff; but that such knowledge was not communicated to said defendants, and they were allowed to become bondsmen in ignorance of such material and damaging facts. Issue was joined on this plea, and the cause was referred to Alexander Martin to try all of the issues. After hearing the testimony he made his report and finding in favor of the plaintiff. This report was confirmed by the circuit court, resulting in a judgment in plaintiff's favor, and the defendants have appealed to this court.

About the fact of the defalcation upon which defendants were sought to be held liable, there was no real contest. The evidence seems to fully sustain the finding of the referee, that prior to the giving of the bond in suit there was no misconduct on the part of the principal in the bond, or at least knowledge of it on the part of the association or its officers.

Objection was made to the accountant Spinney testifying as to his examination of the books and papers in the office of plaintiff. The books, packages of vouchers, etc.,...