39 Mo. App. 495 | Mo. Ct. App. | 1890
Lead Opinion
Plaintiffs, liverymen at Mexico, Missouri, in April, 1887, hired a team of horses to defendant, a traveling salesman, who drove to the neighboring ing towns and villages, ánd returned to Mexico the night of the succeeding day. One of the horses died the next morning and the other, it was claimed, was badly injured. Plaintiffs sued defendant, alleging the death of one of their animals and the injury to the
I. The first matter complained of by the defendant is, that the circuit court refused a continuance of the cause, on his application, upon the admission by the •plaintiffs that if the absent witnesses were present they would swear to the facts set out in defendant’s affidavit for a continuance. There is no merit in this complaint. In its rulings and remarks made at the trial, the court followed the law as provided by statute, Revised Statutes, 1879, section 3596. The defendant’s counsel suggested at the trial that he would “now read the depositions” of the witnesses named in his affidavit for a continuance. The remarks of the opposing counsel and the judge presiding were to the effect that they were not “depositions,” but that it was admitted if the absent witnesses were present “they would testify as follows” etc., or that “they would swear to the facts” as set out in the affidavit for continuance. These remarks -were wholly unobjectionable and- entirely within the statute — spirit and word. Elsner v. Supreme Lodge, 98 Mo. 640.
Neither is there any question as to the constitutionality of the section above referred to. Eisner v. Supreme Lodge, supra.
II. Further objection is made to the action of the trial court in rejecting certain statements made in the affidavit for a continuance, for the reason assigned by the court that such statements of the absent witnesses were not competent evidence, etc.
It seems to be the contention of defendant’s counsel that the court should have admitted as evidence every portion of the affidavit regardless of its relevancy or competency. This position is entirely untenable.
III. It was not error to permit witnesses Wool-wine and Galloway to give their opinion as to what' was the matter with the horses. Both these witnesses were shown to have large experience with horses and fully equipped to express an opinion. Johnson v. Moffatt, 19 Mo. App. 161; Straus v. Railroad, 86 Mo. 422.
The cause seems to have been fairly tried and submitted to the jury by reasonably fair instructions, and we see no reason for reversal. Judgment affirmed.
Concurrence Opinion
(concurring). — It seems to me, that the facts stated in an affidavit made for a continuance, under the provisions of section 3595, Revised Statutes, are authorized by the provisions of section 3596, to be read as the evidence of such witness, without explanation, as to the mode or manner by which such evidence of the absent witness was procured. This is a matter for the court and with which the jury has no concern. I am of the opinion that it was improper for the trial court, as was the fact in this case, to direct the jury that the witnesses, whose evidence the defendant read, would testify or swear to the facts stated in the affidavit, if they were present. For the purposes of the trial, the evidence of the absent witnesses was adduced, and it was as much before the jury as if it had been read in the form of deposition. If it was not, what would be their evidence if they were present to testify; these
Therefore for the court to direct the jury that, that which already had in legal contemplation an actual, potential existence might or could exist, under certain conditions, I should regard a departure, at least, from the spirit of the statute. I cannot think, however, that the remarks of the judge, who presided at the trial of this case, in respect to the said affidavit, though erroneous, furnish grounds for the reversal of the judgment.
I cannot discover that any harm resulted to the defendant, by reason of such remarks. I think the instructions were most favorable to the defendant, and that the case was, in the main, fairly tried and that there is no substantial grounds for complaint of the judgment.
Dissenting Opinion
(dissenting). — I do not concur in that part of the foregoing opinion which approves of the remark of the trial judge as to the character of the paper counsel proposed to read as the deposition of the absent witness. In the meaning of the statute, section 3596, the matters set forth in an application for a continuance as being the facts which could be proved by the absent witness are the deposition of such witness, and are, as directed by the statute, to be “read as the evidence of such witness,” and may be met by contradictory evidence from the opposite party. The law declares the effect of the agreement of the party objecting to the continuance and he must abide by it. The fact that opposing counsel want the jury to understand or be informed that the affidavit is not really the testimony of the witness, shows that it is expected such knowledge will destroy or
The case cited in.the opinion, I think, does not sustain the position, but rather leans against it. The remark, therefore, cf the court in the presence of the jury that the paper was not the deposition of the witness, and that it was only admitted to be what he would testify to at the trial if he were present, or that such witness would swear to the matter set out in the affidavit for a continuance if present, was improper, and for which the judgment should be reversed.
