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G. C. Fulton, for appellants. E. B. Wat provides, in effect, that, when the appeal is son, for respondent.
from a decree, the clerk shall attach together
the testimony, depositions, and other papers KING, O. (after stating the facts). The on file in his office containing the evidence årst point demanding attention is the suffi- offered at the trial, and deliver the same to ciency of the undertaking on appeal, to the appellant, taking his receipt therefor in which it is urged by plaintiff that the lia- | duplicate, which depositions, exhibits, and bility thereon is limited to $500. If limited, other papers, under rule 1 of this court, may It is settled that the undertaking is insuffi be certified to by the clerk. It follows that cient. State v. McKinmore, 8 Or. 207. But the certificate of the trial judge or reporter an examination of the undertaking before is not required to be affixed to the exhibits us fails to disclose any language therein filed with the transcript, unless the cause is limiting the liability of either defendants or tried before a referee in the absence of the their sureties. Its provisions follow the court, in which event the identification by wording of the statute, to the effect that ap the trial judge is necessary (Tallmadge v. pellants and their sureties will pay all dam Hooper, supra), while, if tried before the ages, costs, and disbursements that may be court, the stenographer's certificate is re awarded against them on appeal. True, the quired to the transcript of his notes, and the sureties only qualify in the sum of $500, but exhibits must be identified by the clerk, as this can in no way be construed as limiting | indicated. their liability. Wolfer v. Hurst (decided It is also urged that the testimony and August 6, 1907), 91 Pac. 366. The grounds exhibits should be striken from the files bestated in the motion to dismiss are therefore cause not attached together in one volume. untenable.
A strict construction of the language of the It is next urged that the exhibits and tran statute would indicate that this should be script of the official reporter's notes should done. However, the manner of fastening be stricken from the files, on account of the them together is not stated. In the case beirregularities suggested in the motion. The fore us the testimony is bound in book form certificate of the official reporter states that and in a separate volume, the exhibits in anthe transcript is a true and correct copy of other volume, the transcript of pleadings and his shorthand notes taken at the trial, and other papers in another, and the three volof the whole thereof. It will be presumed umes held together by being inclosed in large that where the court appoints an official re rubber bands. In fact, this is the most conporter, and he enters upon the duties of his venient and practical manner in which it office, he reports the entire proceedings; and could have been done. That the law in this we think it clear from the language used in respect is directory, and not mandatory, is the certificate to the transcript of his notes evident. It is well known that in many equithat he intended thereby to state that it in ty suits boxes, and even trunks, have been cludes the entire proceedings had at the trial. found necessary to bring here the voluminous, Each exhibit is referred to in the evidence re and almost endless number of exhibits, conported, designated by a letter as introduced, taining. in many instances, portions of maand the exhibits accompanying the tran chinery, firearms, etc., which would make script of the pleadings and evidence are the attaching of all together, in the manner marked in the order indicated in the testi indicated by a technical construction of the mony, with the reporter's name subscribed statute, an impossibility. The law does not thereto, together with the certificate of the intend either the impossible or impracticable, clerk attached, properly identifying each ex and, where the language of the statute would bibit. Section 827, B. & C. Comp., provides so indicate, it should be held directory, and that in suits in equity, where it has gone to not mandatory. In the majority of cases the a decree, the trial judge shall identify the plan indicated by the statute is more contestimony and exhibits within 10 days there venient; and, in fact, the practice adopted in after. This section also provides that, where some districts of copying all of the exhibits the evidence is taken by a stenographer, he into the testimony where offered is safest, shall extend the same and certify to its be and, to say the least, most practicable and ing a correct transcript thereof, and that all convenient for counsel as well as for the documentary evidence shall be preserved and court, but such cannot always be done. It is incorporated in the report of the evidence by clear, therefore, that some latitude must be the referee. It has been settled by the de allowed in such cases, and that the statute, cisions of this court that the identification re on questions of this character, should not quired of the trial judge applies only where be strictly construed, where it does not apthe cause is tried before a referee, and not in pear that any one has been prejudiced by presence of the court (Tallmadge v. Hooper, the acts complained of. 37 Or. 503, 61 Pac. 349, 1127; Hume v. Burns Again, it is insisted that the exhibits [Or.) 83 Pac. 391); but, where the cause is should be stricken from the record, because tried before the trial judge, the stenographer, not filed with the clerk of the court below. if one is appointed by the court, shall certi We find no provision in the statute or rules fy to the testimony. B. & C. Comp. § 553, requiring the exhibits to be thus filed. The as well as rule 1 of this court (91 Pac. yii), official reporter, for the purposes of the par
ticular case in which he is appointed by the 7. INSURANCE – BENEFIT CERTIFICATE – ACcourt to act, is as much an officer of the TION-EVIDENCE.
Where the local secretary of a mutual bencourt as the clerk, and his duties in reference
efit society, in accordance with its by-jaws, sent to the documents and evidence introduced proofs of insured's death to the supreme secreare similar in effect and of equal importance tary, it was immaterial that she procured the
services of an attorney, who was a member of (Tallmadge v. Hooper, supra), and the sten
the order, and who subsequently became the atographer in this case having marked each
torney for the beneficiary in an action on the exhibit as filed, and having designated each certificate to assist her in submitting such by letters thereon with corresponding charac
proofs. ters in the testimony, thereby making them 8. WITNESSES-COMPETENCY-KNOWLEDGE. easy of identification, this is sufficient.
Where the local secretary of a mutual ben
efit society, in making out proofs of death of a The motion to dismiss and to strike should
member, procured the assistance of an attorney, be denied.
who was also a member of the order, and who subsequently became the attorney of the beneficiary in an action on the benefit certificate,
the secretary was competent to testify wheth(50 Or. 159)
er she procured such attorney's aid as a brother HILDEBRAND V. UNITED ARTISANS. member of the order or as an attorney. (Supreme Court of Oregon. Sept. 3, 1907.) [Ed. Note.--For cases in point, see Cent. Dig.
vol. 20, Evidence, $ 2175.] 1. INSURANCE-LIFE INSURANCE - SUICIDE
9. TRIAL-OBJECTIONS TO EVIDENCE-EFFECT. BURDEN OF PROOF.
An objection to the relevancy, competency, The burden of proving the defense of sui
and materiality of the subject-matter of a quescide in an action on a mutual benefit certificate
tion waives any defects in its form. is on the defendant.
[Ed. Note. For cases in point, see Cent. Dig. [Ed. Note. For cases in point, see Cent. Dig.
vol. 46, Trial, § 216.] vol. 28, Insurance, 88 1653, 1999.).
10. EVIDENCE - EXPERTS HYPOTIIETICAL 2. SAME-PROOF OF DEATH-OFFICERS OP So
Where, in an action on a benefit certifi
cate, it appeared that deceased had been shot society provided that on a member's death the
through the temple, and defendant claimed he officers of the local society to which he belonged
had committed suicide, a hypothetical question should furnish full proof of death on printed
asked of physicians, calling for their opinion blanks prepared for that purpose and give their opinion of the validity of the beneficiary's claim,
as to rigor mortis setting in at once in the case such local officers must be considered the agents
of a person dying almost immediately from the
effects cf a pistol ball entering the head through of the general society.
the right temple, was relevant and material. 3. EVIDENCE-ADMISSIONS OF AGENT.
[Ed. Note.-For cases in point, see Cent. Dig. Where local officers of a mutual benefit
vol. 20, Evidence, 88 123–137, 424.] society were required to furnish proofs of death on the decease of a member of such local socie
11. EVIDENCE-COMPETENCY OF EXPERT. ty, the statements and admissions of such offi A physician testifying as an expert must cers made against the interests of the general first be shown to be qualified either by actual society are competent evidence against it in experience in similar cases to the one put to an action on the benefit certificate.
him or by such careful and deliberate study as [Ed. Note.For cases in point, see Cent. Dig.
enables him to form a definite opinion of his vol. 20, Evidence, 88 887-892.)
own with reference to the matter under consid
eration, 4. INSURANCE-MUTUAL BENEFIT SOCIETIES
[Ed. Note. For cases in point, see Cent. Dig. PROOF OF DEATH-QUESTION FOR JURY. vol. 20, Evidence, $ 2315.)
In an action on a mutual benefit certificate, evidence held to require submission to the
12. TRIAL_OBJECTIONS TO EVIDENCE. jury of the question whether proof of death was
An objection to a question asked of an exsubmitted by plaintiff or was furnished by the pert on the ground that he was not qualified to secretary of the local order in accordance with
testify did not include an objection that the its by-laws.
proper hypothesis had not been given. 5. WITNESSES CROSS-EXAMINATION-IDEN
Appeal from Circuit Court, Douglas CounTIFICATION OF PAPERS. Where, in an action on a benefit certificate,
ty; L. T. Harris, Judge. a witness on direct examination was asked to Action by Robert Hildebrand, by S. J. Culidentify a letter received from defendant's su ver, as guardian, against the United Artisans. preme secretary, referring to certain proof papers, and was also questioned as to what proof
From a judgment for plaintiff, defendant appapers the letter referred to, defendant was en
peals. Affirmed. titled as part of the witness' cross-examination
This is an action by Robert Hildebrand by to have the proof papers identified by the witness and to mark them for subsequent refer
his guardian, S. L Culver, against the United ence.
Artisans to recover $1,900, with interest, up6. APPEAL-RULINGS ON EVIDENCE-PREJU on a certificate issued to W. C. Hildebrand, DICE.
the father of plaintiff, as a member of the Where, in an action on a benefit certificate, all the proof papers relating to the controversy
order, by which it was agreed to pay the were subsequently adınitted as part of the de amount demanded in event of his death. fense, including the report of a coroner's in
Plaintiff's father was found dead in his quest finding that insured committed suicide, as defendant contended, defendant was not
room in Reno, Nev., November 18, 1903, with prejudiced by the court's refusal to permit de a pistol clasped in bis right hand, a bullet fendant to introduce such proof papers, with the having entered his right temple. No one way repcrt of the inquest attached, as a part of the cross-examination of one of plaintiff's witnesses.
present nor knew of the incident until some [Ed. Note.-.For cases in point, see Cent. Dig.
hours after its occurrence. The cause of the vol. 3, Appeal and Error, $ 4200.]
death is unknown, and can only be surmised
from the surrounding circumstances. A cor as to the matters referred to in the letter, oner's inquest was had, the jury reporting and that no objection was made until the to the effect that the deceased came to his "proof papers" were offered in evidence. The death as a result of a gunshot wound inflict purpose of the cross-examination, as well as ed by his owr hand. Yo question was raised the attempted introduction of the "proof" in by the pleadings or proof as to his good evidence, appears to have been intended for standing in the order at the time of his death the purpose of sustaining the claim of suicide nor as to the identity of the beneficiary. | affirmatively pleaded by the defense. Where Two questions were raised by the pleadings, this defense is interposed to a policy of innamely: (1) Has the beneficiary submitted surance, the presumption being that death such proof of death as will entitle him to resulted from natural causes the onus is Terover? (2) Did the deceased commit sui upon the defendant to sustain the allegations idle? The rules of the order relative to to that effect. Cox v. Royal Tribe, 12 Or. proof of death of a member of the order ap 303, 71 Pac. 73. 60 L. R. A. 620, 9.) Am. St. pear in full in Patterson v. United Artisans, Rep. 7:52. Where the by-laws of a mutual 43 Or. 334, 72 Pac. 103.7. A trial of the is benefit society provide that upon the death sues mentioned was had before a jury, result of a member the officers of the local society ing in a verdict for plaintiff for the sum de to which he belonged, as in this case, should manded. From the judgment thereon de furnish full proof of death upon printeil fendant appeals.
blanks prepared for that purpose, and give 0. P. Coshow, for appellant. J. T. Long their opinion as to the validity of the beneand A. M. Crawford, for respondent.
ficiary's claim, such local officers must be con
sidered the agents of the general society, and KING, C. (:1fter stating the facts as above).
their statements and admissions made against The first error assigned and relied upon is
the interests of the general organization are based upon the action of the court in sustain
competent evidence in an action on the bene
fit certificate. ing an objection to defendant's offer to intro
Patterson v. United Artisans, duce in evidence, and have marked as its ex
13 Or. 333, 72 Pac. 10.1; Whigham v. Indehibit, the proof of death, as a part of the
pendent Foresters, 44 Or. 543, 75 Pac. 1007. cross-examination of plaintiff's witness C. L.
The proof in this instance was sent the de McKenna. TLis witness testified on direct ex fendant by Mrs. Edith Plank, as the local amination that on April 12th, and at all times
secretary of the order; at least she so testisince, including the date of trial, he was and
fied, and her statements to that effect are not is the supreme secretary of defendant, and
contradicted by any positive testimony, and identified a letter to John T. Long, dated
if they had been contradicted it would have April 16, 1904. written by him as secretary
been a question for the jury. Evidence was of the Supreme Assembly of United Artisans. given tending to show that when the proof The letter was received in evidence, without was made J. T. Long, although assisting the objection, the material portion of which
local secretary, was not acting as attorney reads: "Your letter of April 14th is at hand,
for the claimant, but as any other member of and in reply will say we have received the
the order might have done in the way of jiroof papers in the case of W. C. Hildebrand, assisting the secretary in the preparation of Jr., deceased on January 5, 1901." On cross the proof she was required under the rules examination the witness was questioned as
to furnish, notwithstanding he afterwards to the proof papers there referred to in the became one of plaintiff's counsel in this acidentification of which he answered that he tion, and signed his name as such. It is only had reference to the proof of death of Mr. upon the assumption that plaintiff, in place Hildebrand, stating he thought it was sent
of the local secretary, by reason of Long's by plaintiff. Witness was then handed a
assistance, furnished the proof, that the prodocument and asked to state its nature, to
ceedings of the coroner's inquest could be which he replied that it was the proof men
deemed admissible. There being some evitioned in the letter, and the only proof receir dence showing that he was not acting as such ed, which instrument was then offered in evi attorney, and that the proof was furnished dence. Objection was made and sustained to by Mrs. Plank, as secretary of the local orits introduction as incompetent and not prop
der, it then became a question for the jury to er cross-examination, as well as for the spes determine whether the proof was furnished cial reason that a part of the instrument by plaintiff or by defendant's local agent. offered purporteil to be the proceedings of the The proof offered on this point by (lefendant coroner's ingest, by which plaintiff was not was evidently intendeel in support of its hound. Detendant's counsel insist that, since claim of suicide, as allered, and only admisthe proof paniers" were mentioned in the let sible for that purpose. The question askel ter, he was entitled not only to question the McKenna by plaintiff's counsel was for the witness thereon, but to introduce them in purpose of identifying the letter offered and evidence, notwithstanding the proof tendered received in evidence; but, since he was also included the proceedings had at the coroner's questioned in his direct examination as to inquest. The record discloses that the wit- what proof papers the letter referred to, the ness was interrogated on cross-examination defense was entitled, ils a part of its cross
examination, to have the proof papers iden- | order, sent the proof to the supreme secretified by the witness and to mark them for tary. It cannot be material, therefore, what subsequent reference, but it is very doubtful assistance she may have procured, whether whether it was entitled, on cross-examination, legal services or otherwise, as she was actto have them received in evidence. It was a ing as defendant's agent, and the papers ofpart of its defense. Testimony of this class fered in evidence, constituting the proof reis sometimes admitted by the court in the ex ferred to, were received by the supreme ercise of its discretion, in which event its secretary from her as such agent. Again, idmission has been held not to be reversible the witness, while acting as such secretary, error. Wills v. Russell, 100 U. S. 621, 25 L and having procured Long's assistance in Cd. 607. But it seems to be the well-recog filling out the blanks and in taking acknowlnized rule that, when a witness is called by edgments as a notary, was in position to one party, the opposing litigant only has a know the capacity in which she procured right to cross-examine upon the facts to his aid, whether as a brother member of the which he testified in chief. In his direct ex order or as an attorney, and fully competent amination McKenna did not pretend to iden to testify in reference thereto. Nor can there tify nor to give the contents of the proof pa be any question as to her right to state the pers, but stated merely what the letter had position in which Long assumed to act when reference to in that respect ff, on cross he tendered and furnished his assistance. examination, defendant can be permitted to Raub v. Otterback, 89 Va. 645, 16 S. E. 933; go to the extent, not only of identifying the Bender v. McDowell, 46 La. Ann. 393, 15 instrument, but of introducing it in evidence, South, 21. he would thereby procure the advantage,
It is next insisted that the court erred in under the pretense of cross-examination, of permitting the three physicians called as making him his witness in chief, and, at the
witnesses to give certain expert testimony same time, of depriving plaintiff of any cross
relative to the effect of the gunshot wound examination of the witness on points thereby
in the temple of the deceased, a sample of elicited. It is manifest that such practice
the questions asked being : “Q. Now you should not be encouraged. Stafford v. Fargo, may state, doctor, from your experience as 35 Ill. 481. Even though defendant's posi
a physician, and from observing people who tion on this point were tenable, any error
were wounded in that way, what in your that may have been committed in this respect opinion would be the effect upon the muscles was rendered harmless, as defendant's rights
as to their relaxing, or becoming immediate could not have been prejudiced thereby, in
ly stiffened-I think your medical term is that all of the proof papers were subsequent
rigor mortis, setting in-if a person dies ally admitted as a part of the defense, in the
most immediately from the effects of a pistol admission of which the court evidently as
ball entering the head through the right sumed that it was a matter for the jury to
temple?” Objections were made to this class determine whether the proof was furnished
of questions as being incompetent, irrelevant, by the plaintiff or by defendant's local agent,
and immaterial, and for the reason that the and, if found as a fact to have been furnish
physicians testifying had not been shown ed by plaintiff, were entitled to consider the
qualified to answer; but no objection was
predicated upon the grounds that the proper proof, with inquest attached, as an admission
foundation had not been laid, nor proper hyagainst plaintiff's interest, tending to support
pothesis given therefor. There can be no defendant's contention, and instructed the ju
doubt as to the materiality, relevancy, and ry accordingly. We think, therefore, that de
competency of the inquiries, as the answers fendant cannot avail itself of the alleged
sought and elicited thereby tend to rebut error of the court in refusing on cross-ex
the proof of suicide offered by the defense. An amination to admit the "proof papers" in evi
objection to the relevancy, competency, and dence. Olive v. Olive, 95 N. C. 485; City of
materiality of the subject-matter of the quesChicago v. Peck, 196 Ill. 260, 63 N. E. 711;
tion waives any defects in its form. Enc. Seymore v. Malcolm McD. L. Co., 58 Fed.
Ev. vol. 9, pp. 100-106. 957, 7 C. O. A. 593; Wills v. Russell, 100 U. S.
It is a well-settled rule that before a wit621, 25 L. Ed. 607.
ness can be permitted to give expert testiIt is next urged that the court should have
mony it must not be in a subject of comsustained the objection to the question asked
mon experience. State v. Anderson, 10 Or. Mrs. Plank, "Was he (Long] assisting you 448. The proper mode of examination is by as attorney or just as a member of the or
a hypothetically stated case which should der at your request?" as to the status of
embody substantially all the facts relating which it is urged that the witness was not
to the subject; and a physician testifying competent to express an opinion. No objec
as such expert must first be shown qualified tion was made to the question on the ground to do so either by actual experience in cases that it was calling for the opinion of the similar to the one put to him or by such witness; but, regardless of that feature, we careful and deliberate study as enables him fail to see what bearing the answer could
to form a definite opinion of his own in rethave in the light of Mrs. Plank's testimony, erence to the matter under consideration. as it is shown that she, as secretary of the Also, where he is called upon to testify from
his own knowledge, it must appear that he has trustworthy informaticn and knowledge of facts involved and upon which his opinion is to be founded. Thompson on Trials, $ .88; 8 Ency. Pl. & Pr. 745; State v. Anderson, 10 Or. 448; State v. Simonis, 39 Or. 111, 65 Pac. 595; Soquest v. State, 72 Wis. 659, 40 V. W. 391. Each of the physicians called as witnesses in this case not only testified that he is a licensed physician and practitioner of long standing. but to facts sufficient to indicate a reasonable amount of experience in, and observation of, the particular kind of gunshot wounds concerning which he was examined, from which it follows that the objection made as to the qualification of the witness to give testimony elicited is untenable. It is extremely doubtful, however, as to whether the questions in the form asked laid sufficient foundation or stated a proper hypothesis, but no objections appear on that account. The objections made go only to the relevancy, competency, and materiality of the testimony sought by the questions and to the qualification of the witnesses to testify on the points upon which they were interrogated. It is well settled that, where an objection upon one ground does not go to the other not stated, it is a waiver of all objections not specified. Enc. Ev. vol. 9, pp. 100-106. From which it follows that an objection having as its basis the assertion that the witness has not shown himself qualified to testify on a subject waives any objection to the sufficiency of the form of the question, or as to the proper hypothesis not being given. One goes to the knowledge of the witness, and the other to the form of the question asked. An objection to a hypothetical question on specified grounds raises no question as to its competency or sufficiency on other subjects, from which it follows that the converse must be true. Enc. Ev. vol. 9, pp. 105, 106; Stillman y. Northern Pac. F. & B. H. R. Co., 34 Minn. 420, 26 N. W. 399. “The rule is that, where an objection is made on an untenable ground, or on a ground that works no prejudice, and is overruled, such ruling furnishes no cause for reversing the judgment, because the admission of evidence against objection on some other ground would have constituted harmful error." McDermott v. Jackson, 97 Wis. 70, 72 N. W. 375. Among authorities sustaining the principles here recognized are: Enc. Pl. & Pr. vol. 8, pp. 223-237; Ladd & Bush v. Sears, 9 Or. 244; United Oil Co. v. Roseberry, 30 Colo. 177, 69 Pac. 588; White v. Smith, 54 Iowa, 233, 6 N. W. 281; In re New York El, R. Co., 12 N. Y. Supp. 857, 58 Hun, 610; Mount V. Brooklyn, 76 N. Y. Supp. 533, 72 App. Div. 410; Burlington Ins. Co. v. Miller, 60 Fed. 2:54, 8 C. C. A. 612; Missouri Pa. Ry. Co. v. Hall, 66 Fed. 868, 14 C. C. A. 153; Publishing Ass'n v. Fisher, 95 Mich. 274, 54 N. W. 7059; McCooey v. Forty-Second St. R. Co., 79 Hun, 255, 29 N.
Y. Supp. 368; Frankel v. Wolf, 7 Misc. Rep. 190, 27 N. Y. Supp. 328; People v. Frank, 28 Cal. 508. In McCooey V. Forty-Second St. R. Co., supra, a physician was called to testify as an expert, whose testimony was objected to, and the overruling of the objection was assigned as error. The court in passing on this point say: "The next objection relates to a hypothetical question asked of a doctor, and which is sought to be sustained by the line of cases which hold that the question must contain the facts assumed, so that the jury can have before them the facts in the expert's mind upon which he bases his answer to the hypothetical question. These cases are not available to the appellant, because his objection was not put upon the ground that the question did not contain all the facts necessary to enable the expert to answer, but upon the ground of its incompetency." The court there held that such questions were objected to, not as to form, but as to being incompetent, and the objection thus made was not sufficient to call the attention of a trial judge to the grounds relied upon, for which reason there was no error. In State v. Martin, 47 Or. 282, 83 Pac. 819, a physician called as a witness testified that he was a graduate of a medical school and a licensed physician, and detailing the condition in which he found the injured person, concerning whom he was interrogated, whereupon he was asked his opinion as to the effect of the injury. etc., which was objected to on the ground that it was incompetent, but overruleil, and the witness answered; it being maintained that, as no testimony had been given tending to show the qualification of the physician testifying, either by experience or study, an error was committed in permitting him to answer. It is there held that the objection to the question as being incompetent was not sufficient to raise the question as to the qualification of the witness. For the same reason we think an objection to a question asked an expert witness on the grounds that he is not qualified to testify would not include an objection on the ground that the proper hypothesis had not been given. In discussing the effect as to the objection relied on in State v. Martin, supra, Mr. Justice Moore says: “The object of every objection interposed at the trial of a cause, and of the exception to the court's ruling thereon, is to incorporate into the bill of exceptions the particular legal proposition submitted to and decided by the trial court, so that upon an appeal from its ruling an appellate tribunal may be able to review the identical question considered. As the objection which was made related to the alleged incompetency of the question, and not to the incompetency of the witness to express an opinion, the legal principle now insisted upon was evidently not considered by the trial court, and, this being so, no error was committed in permitting Dr. Thomas to answer