Elsner v. Supreme Lodge Knights & Ladies of Honor

• Decision Date: 24 June 1889
• Citation: 11 S.W. 991,98 Mo. 640
• Parties: ELSNER v. SUPREME LODGE KNIGHTS & LADIES OF HONOR.
• Court: Missouri Supreme Court

11 S.W. 991

98 Mo. 640

ELSNER v. SUPREME LODGE KNIGHTS & LADIES OF HONOR.

Supreme Court of Missouri.

June 24, 1889.

CONTINUANCE — ADMISSION — OPINION EVIDENCE — APPEAL.

1. On an admission by plaintiff under Rev. St. Mo. 1879, § 3596, to avoid a continuance on the ground of absent witnesses, that defendant's absent witnesses would, if present, swear to the facts set out in the affidavit, whereupon defendant was authorized to "read as the evidence of such witnesses the facts so stated in such affidavit," it is error to charge "that plaintiff does not admit the statements made in defendant's application for a continuance * * * to be facts established by evidence, but only admits that defendant could produce evidence as in said affidavit stated, tending to prove such facts."

2. A recital in the record that a party "objected" to an instruction by the court sufficiently shows an exception for the purpose of review.

3. Where it is in issue as to whether deceased was 47 or 56 years of age when he applied for a life insurance policy, witnesses may give their opinions as to his age at that time.

Appeal from St. Louis circuit court; GEORGE W. LUBKE, Judge.

This action is upon two benefit certificates for $3,000, issued by the Supreme Lodge Knights & Ladies of Honor upon the life of Jacob Elsner, payable to his widow, the plaintiff, upon his death. The defense is that he misrepresented his age in the application upon which the certificates were based. The answer charges that he was born December 3, 1828, instead of December 28, 1837, as he had stated in his application. Issue was taken on this defense. When the case was called for trial, defendant moved for a continuance upon affidavits. These recited several reasons appealing to the discretion of the trial court, and also stated, among other things, that affiant believed that, if a continuance were granted, depositions of witnesses could be obtained for defendant from Germany, in time for the setting of the cause at the next term, to establish the alleged fact regarding the true age of Elsner, namely, that he was upwards of 56 years of age when he made his application for insurance, instead of 47 years, as he had then represented. Upon that application plaintiff's counsel (in the language of the bill of exceptions) "stated that they would admit the facts set forth in the affidavits, in accordance with the provisions of the statute, (section 3596,) whereupon the court overruled said motion for continuance." The cause was tried with the aid of a jury. The evidence was conflicting. On the part of plaintiff, several witnesses were permitted, in rebuttal, to state their opinions of the age of deceased from his appearance at the time of his application. The court gave several instructions, one of which will be noted particularly in the opinion. A verdict was returned in favor of plaintiff. After the usual motions, defendant appealed.

V. Reyburn, for appellant. Jay L. Torrey for respondent.

BARCLAY, J., (after stating the facts as above.)

1. The admission which plaintiff's counsel made under section 3596, (Rev. St. 1879,) to avoid the continuance asked by defendant, was that the defendant's absent witnesses, if present, would swear to the facts set out in the affidavit. That admission permitted defendant to "read as the evidence of such witness the facts so stated in such affidavit." At best, this device furnishes a poor substitute for the testimony of a witness, but the legislature has sanctioned it as a necessary measure to diminish somewhat the evils of delays in the administration of justice. But it is a law which, obviously, should be so construed as to give those who fall within its terms the full benefit of such advantages as it affords. In the case before us defendant's affidavits for a continuance went to the jury during the trial, but at its close the court gave an instruction, at plaintiff's request, to this effect: "No. 2. The jury are instructed that plaintiff does not admit the statements made in defendant's application for a continuance, and read in evidence, to be facts established by evidence, but only admits that defendant could produce evidence as in said affidavit stated, tending to prove such facts." This instruction fell far short of telling the jury that the facts recited in the affidavits for continuance, as those the absent witnesses would prove, were to be received with like effect as their testimony. If the court instructed at all upon that point, it should have carefully given as much effect to those affidavits as the statute requires. Rev. St. 1879, § 3596. The extent of the admission made to prevent a continuance is, in strictness, a matter with which the court alone should deal. The admission is made to the court. It is, at least, unnecessary (we will not say always erroneous)...