97 So. 770 | Ala. Ct. App. | 1923
It appears from the record that on December 7, 1920, there was judgment rendered on certain demurrers filed to the complaint, and the cause proceeded to final judgment on December 8, 1920. From this judgment an appeal was taken to this court, and under the law providing for the equalizing of the work of the appellate courts was transferred to the Supreme Court, where the judgment of the circuit court rendered December 8, 1920, was reversed, and the cause was remanded. Bro. of P. D. P. of America v. Trimm,
The appeal in this case, as shown by the supersedeas bond, is from the judgment rendered on October 12, 1922, which does not include the rulings of the court on demurrers filed to the complaint. No demurrers to the complaint having been filed or the rulings of the court invoked thereon on this trial, there is nothing here to review. To hold otherwise would be to permit by indirection a second appeal from the judgment *431 of December 8th, heretofore passed upon by the Supreme Court.
As to the alignments of error based upon the rulings of the court on demurrers to defendant's plea, it is sufficient to say that, after the demurrers were sustained, defendant pleaded "in short by consent, with leave to give in evidence any matter of defense as if the same had been specially pleaded." This cured any possible error that might have been in the court's rulings on demurrer to pleas. The foregoing applies to assignments of error 8 to 22, inclusive.
Assignments of error 1, 2, 3, 4, 5, 6, 7 are not properly insisted upon in brief. The brief on these assignments amounts to nothing more than a copy of the assignments of error. As was said in W. U. Tel. Co. v. Benson,
The twenty-third, twenty-fourth, and twenty-fifth assignments of error are referred to in appellant's brief in much the same way as are assignments 1 to 7, inclusive, with no argument or citation of authority, and under the authorities is waived. Stover v. Hill,
The answers to questions by the witness Trimm, made the basis of assignments 26 to 30, inclusive, could not have injuriously affected defendant's substantial rights. That the witness had on a former trial testified to the same facts did not add any facts to the testimony in this case or add any probative force to the testimony of the witness. That leading questions should not be allowed is a well-established rule of evidence, but in this regard much must be left to the sound discretion of the trial judge, who has the advantage of being present and is charged with the duty of seeing that all cases are fairly presented to the jury. Many witnesses, though not unwilling, may, by reason of timidity, or a lack of experience, need to be led, to the end that the court may get the whole truth as to what they know concerning the issue involved. The twentieth headnote in Montgomery v. State,
"There was no error in the court's sustaining the solicitor's objection to having the witness * * * prompted and suggested to on direct examination by reading to him at length the extended statement of his testimony on the former trial."
If in the case at bar such had been the ruling of he court, it would not have been error to a reversal. But it does not necessarily follow that in permitting it the court exceeded its discretionary powers over the examination of witnesses.
That portion of the answer to interrogatories propounded to defendant by plaintiff as follows:
"The due book, ledger card of C.A. Trimm, and the ledger of Local Union 57 of the said Brotherhood show that at the close of August, 1918, the deceased member owed dues for the months of June, July, and August, and therefore stood suspended. This indebtedness was paid September 3, 1918. The member was therefore more than three months but less than two years in continuous good standing at the time of his death on January 9, 1919. There is no record of payments of dues made from March, 1900, to December, 1908, inclusive, consequently no evidence has been presented to show that the suspension of the member at the close of August, 1918, was his first and only suspension, and in the absence of such proof it would not be reasonable or just to assume that no such suspension had occurred."
was suppressed, on motion of plaintiff, and the remainder of the answers were allowed to be read in evidence. We are familiar with the rule laid down in Saltmarsh v. Bower,
Let us now analyze the answer suppressed:
"The due book, ledger cards of C.A. Trimm, and the ledger of Local Union 57 of the said Brotherhood show that at the close of 1918, the deceased member owed dues for the months of June, July, and August, and therefore stood suspended."
This was a deduction drawn by the witness from evidence already given, and was his argument and conclusion drawn from these facts. The books were in evidence, and the conclusion of the witness as to what they showed was not pertinent and was illegal. Moreover, the letter from defendant to the beneficiary, dated August 1, 1919, and in evidence, states almost in exact words the matter above referred to. That "the indebtedness was paid September 3, 1918," was also shown by the books and cards in evidence, *432 and was nothing more than a deduction from the testimony. Moreover, this identical statement appears in a letter from Semp, defendant's officer, answering the interrogatories to beneficiary, and is in evidence. The next statement excluded, in addition to having already appeared in the answers, was an argument pure and simple, and therefore was not pertinent.
While we have held hereinabove that the brief of appellant was and is a waiver of assignments of error 4, 5, 6, and 7, relative to the court's refusal to give certain written charges, we are constrained to say, as to 5, 6, and 7, these charges call for affirmative instruction from the court. The record of the bill of exceptions is incomplete, showing on its face that much of the evidence introduced on the trial is not included therein and is not before this court. True there are certain pamphlets and scraps of accounts pasted to pages in the transcript. This does not comply with the rule for the preparation of transcripts, and cannot be considered on appeal. The record is incomplete and on motion would have been stricken, but, no such motion appearing, we have not seen fit to act ex mero motu.
As to the charge made the basis of assignment 4, the defendant is an insurance society, undertaking to assert a forfeiture on the part of deceased by reason of a nonpayment of dues. The general rule is that forfeiture for breach of a condition subsequent is an affirmative defense, as to which the burden is on the insurer. Volume 3 Cooley's Brief, 2252 (b); 19 R. C. L. p. 1272.
There is no reversible error in the record. Let the judgment be affirmed.
Affirmed.