61 Mo. App. 97 | Mo. Ct. App. | 1895
Susan E. Neudeek, the wife of the other plaintiff and daughter of Frederick Buddy, now deceased, brought this action on a benefit certificate issued by the defendant, an incorporated benevolent society in this state, to her father, the said Frederick Buddy, in his lifetime, to recover the sum of $2,000, which amount defendant, by the terms of said benefit certificate, agreed to pay plaintiff on the death of said Buddy, which plaintiffs allege in their petition was caused by apoplexy.
The answer of the defendant admitted the issue ■and delivery to the said Buddy of the said beneficiary certificate, and the death of the latter. It interposed several special defenses to plaintiff’s action, to the effect that the application on which the beneficiary certificate
In the medical examiner’s report are the following questions and answers: “Q. Have you ever been addicted to the excessive or intemperate use of malt, alcoholic or narcotic stimulants? A. No. Q. Do you use intoxicating drinks daily or habitually as a beverage? A. No.” It was further alleged that said answers were false and that said Buddy intentionally concealed and failed to disclose the fact that he was then, and for a longtime prior thereto had been, addicted to the habitual use of malt and alcoholic stimulants, or that he then used intoxicating drinks daily or habitually as a beverage. The answer further alleged that Buddy had, for a long time prior to his death, became and was an habitual drunkard, and that his death was caused directly by the excessive use of intoxicating liquors.
There was a trial by jury which resulted in judgment for the plaintiff, to reverse which this appeal is prosecuted.
I. The first error assigned by the appealing defendant is that the trial court' erred in refusing to allow it to introduce in evidence the official notification by the subordinate lodge of the death of Buddy. The constitution of the order provides that, upon the death of a member, it shall be the duty of the subordinate lodge
It appears from the certificate of Dr. Moad, which is part of the official notification offered in evidence, that he did not see Buddy until after he was dead, but that he judged that he (Buddy) died from apoplexy and, from the history of the case, he judged]it was from the excessive use of alcohol. There was nothing in the contractual relations between Buddy and defendant requiring that the notification of the death should state its cause, or, if so, that such notification should constitute evidence of it on a trial of an action at law, when that question is material. The cause of the death was left to be proved by common law evidence. It would be strange, indeed, if the learned physician who only looked upon the inanimate body of Buddy could be permitted, under his certificate, to testify his opinion, not only as to the disease of which he he died, but the cause of the disease, the latter from hearsay — and thus establish defendant’s defense. The plaintiff did not know that the physician had, by his certificate, stated a fact which, if true, would bar her right to recover the sum provided in the
II. Whether a certified copy of the proceedings of the coroner’s inquest was admitted or excluded does not appear from the record. If it was excluded, on the objection of plaintiff, as the defendant contends, then it does not appear that to the ruling of the court in excluding it, defendant saved an exception.
III. The defendant offered in evidence a portion of the record of the proceedings of the lodge to which Buddy belonged, showing that a member of the grievance committee reported that Buddy had been violating the laws of the order, “by becoming intoxicated,” and that thereupon the grievance committee was instructed to “confer with Buddy in order to try to reform him.” This offer was by the court rejected. It appears from the parol evidence, previously adduced by defendant that the steps recited in the record offered had been taken in the lodge and that the grievance committee, or individual members of it, had interviewed Buddy for the purpose - of ascertaining whether the accusation made against him in the lodge was true or not, and if true, to prevail upon him to reform. These witnesses testified to the conversations between Buddy and themselves and the results. The committee made no report to the lodge of their action. Every step taken was fully testified to by them, so that no harm resulted to the defendant from the action of the court
IY. The defendant objects that the court erred in refusing to permit it to ask a witness whether he knew the reputation of Buddy in the community in 'which he lived, for drinking. The issue was whether Buddy was addicted to the habitual use of malt and alcoholic liquors as a beverage. Was the evidence which defendant sought to elicit by the question propounded admissible, and if so, did it tend to establish the affirmative of this issue? It has been ruled that •on an indictment' for being a common gambler, it is not competent to show that the accused is by reputation a common gambler. His acts, and not his character, must be shown. Commonwealth v. Hopkins, 2 Dana, 418. It has been held by us that, on an indictment for setting up and keeping a common gaming house, evidence of the general reputation of the •defendant as a gambler is admissible for the purpose of establishing the character of the house. State v. Mosby, 53 Mo. App. 571. It is considered that evidence of general reputation, reputed ownership, public ■rumor, general notoriety and the like, though composed ■of speech of third persons not under oath, is original ■evidence, and not hearsay; the subject of inquiry being the concurrence of many voices to the same fact. 1 Greenleaf on Evidence, sec. 101; Abbot’s Trial Evidence, 179.
In 1 Bishop on Marriage, Divorce and Separation, 'section 936, it is said that “the reputation that the parties are married is a fact naturally, and, of course, following cohabitation in appearance matrimonial. It is its ■•shadow. Therefore, when connected with such cohabitation, as it commonly is, it is admissible and to be looked for -in the evidence, though its omission would not necessarily be fatal. Alone, and as a mere
While the reputation of Buddy was not the ultimate fact to be proved, yet we are inclined to think that, since there is proof of acts which tend to show that he was addicted to the intemperate use of malt and alcoholic liquors, in connection with such proof it was permissible for defendant to prove his (Buddy’s) reputation in the community where he lived for drinking. In that connection it would possess some slight probative force, while alone it would, we think, be inádmissible.
V. The defendant further objects that the court erred in refusing to permit it to propound to the expert' witness this question: “From the evidence that you have listened to on this trial, what is your opinion as to the cause of Buddy’s death?” We are not of the opinion that this question was proper. It is not the province of a witness, testifying as an expert, to draw inferences from the evidence of other witnesses, unless the facts testified to are clear and uncontroverted, or to take into consideration such facts as he can recollect that have been testified to, and'thus form an opinion; he should have full information of the ascertained or supposed state of facts upon which his opinion is based. Where the facts are controverted, or are not entirely clear, a hypothetical question may be put, based upon the facts claimed to have been proved. Guiterman v. Steamboat Co., 83 N. Y. 358; Reynolds v. Robinson, 64 N. Y. 589; Higbee v. Ins. Co., 53 N. Y. 603; Insurance
The jury were not informed, in the question propounded, of the basis upon which the expert was asked to express his opinion. The expert was left to draw his own conclusions from the evidence of the witnesses whom he had heard testify. The evidence, in some material particulars, was more or less conflicting. One of the experts testified that his opinion was formed from what he could hear, knew personally, and from existing circumstances.
There was no autopsy to ascertain the cause, seat, or nature of the disease. In the absence of this, or of any state of undisputed facts, it seems to us that the opinion of an expert would rest upon a very slight and narrow foundation, and would be of very doubtful value. Such an opinion would be but little, if anything, more than bare conjecture. It is manifestly improperfor an expert to express an opinion, warranted only by assuming the truthfulness and accuracy of what witnesses have testified. Such evidence is competent only when founded on facts within the personal knowledge and observation of the expert, or upon the hypothesis of the finding of the jury. State v. Bowman,
YI. The defendant objects that the plaintiff’s instructions, which declare that, unless the death of Buddy was caused directly by the excessive use of intoxicating liquors, to find for the plaintiff, were erroneous. If his death was caused by the use of intoxicating liquors, plaintiff ought not to recover. Whether the italicized adjective was properly employed in the instruction or not, it is not necessary for us to decide, since the defendant has used it in a like connection in its instruction number 2. If it is error, it is common to both parties, and of which neither can complain.
The defendant’s refused instructions 10 and 11 were properly refused. The theory of these is not within the limits of the issues made by the pleadings. The other two of defendant’s refused instructions were improper expressions of the law, in view of the others 'given by the court. The criticism of the instructions of plaintiff are exceedingly hypercritical. We can discover no solid ground of objection to any of them.
But for the error already pointed out, in respect to the rejection of the defendant’s offers of proof of
