Supreme Lodge Knights of Pythias v. Robbins , 70 Ark. 364 ( 1902 )

Biddick, J.,

(after stating the facts.) This is an action on an insurance policy issued by the Supreme Lodge Knights of Pythias, a fraternal association. The policy contained the condition that the assured should comply with all the laws governing the endowment rank of Knights of Pythias now in force or that may hereafter be enacted. The defendant set up as a defense, and undertook to show, that subsequent to the issuance of this policy the Supreme Lodge Knights of Pythias passed a law providing that if the death of any member of the endowment rank shall be caused or superinduced by the use of intoxicating liquors, narcotics, or opiates, etc., then only a certain proportional anuTunt of the policy should be paid, and further that the death of Bobbins was caused by the use of intoxicating liquors and narcotics. To prove this law the defendant introduced two witnesses, Stolte and Bossner. Of Bossner’s evidence it is sufficient to say that the defendant undertook to identify and prove by him a certain pamphlet or book offered in evidence as the printed copy of the records of the proceedings of the Supreme Lodge Knigths of Pythias for the years 1896 and 1898. Bossner stated on cross-examination that he had not compared the copies offered with the original records, and did not know of his own knowledge whether such laws had been passed, or whether the pamphlet offered was a correct copy of same or not. He said, though, that it was “an official publication of the Supreme Lodge Knights of Pythias, and had attached to it the printed signature of the Supreme Keeper of Becords and Seal.” The plaintiff thereupon objected to the introduction of the printed copy, and the court sustained the objection, and excluded the evidence.

We are asked to review this ruling of the circuit court, but a fatal obstacle in the way is the failure of the defendant to set out the rejected pamphlet in the bill of exceptions. It is a well established rule that “when the exception alleges error on the part of the trial court in the rejection of evidence, such excluded evidence must be incorporated in the bill of exceptions.” 3 Enc. PI. & Pr. 427, and cases cited. Now, in this instance, the rejected evidence was not set out in the bill of exceptions. Instead of that, we have in the bill of exceptions questions and answers of the witness Bossner as to what he found in the printed document offered as evidence. But the copy, and not the testimony of the witness, is evidence of its contents; and as the document is not attached to or set out in the bill of exceptions, we are not able to get a clear idea as to what this document was, or purported to be, and are not able to say that the court erred in excluding it. But, even if the pamphlet had been included in the bill of exceptions, we would probably still have to hold that it was not shown to be a true copy by one having knowledge of the fact. The contention of appellant on that point must therefore be overruled.

The defendant also endeavored to establish the law in question by the deposition of Henry B. Stolte. This witness stated that he was secretary of the board of control of the endowment rank of Knights of Pythias. “I have,” he said, "general charge of the business of the office, under the direction of the president of the board. I attend all meetings of the Supreme Lodge Knights of Pythias and of the board of control of the endowment rank. I keep the minutes of the meetings of the board, and have the charge and custody of the books, .papers and records of the board of control and of the endowment rank.” He was then asked to state "what is the law of the Supreme Lodge Knights of Pythias endowment rank,” if "a member of the endowment rank die from the use of intoxicating liquors, chloral or other narcotics,” and proceeded to answer by stating in substance that in that event only a proportional part of the policy could be recovered. It appears from the evidence, we think, that these laws of the order were matters of record on the books of the order. It follows that they could not be proved by parol. As it would have been inconvenient to produce the original books, they should have been proved by an examined or authenticated copy. It was therefore not proper to have witness state his opinion of what the law was. He should have produced a copy of the law or record. It is true that he says that the law of which he testifies is section 1 of article 6 of the general laws, and that it will- be found on page 41 of the printed pamphlet attached to his deposition. But he does not show that this pamphlet is a true copy of the record which defendant was endeavoring to establish, or that he had ever seen the original record. He said also that this pamphlet was an official publication of the constitution and laws of the endowment rank. But this is only the statement of an opinion. He does not state by whom it was published.— whether by the supreme lodge or by some subordinate lodge. In fact, this pamphlet purports to have been published, not by the Supreme Lodge Knights of Pythias, but by the board of control of the endowment rank, which is a subordinate branch of the order. The name of the supreme keeper of records is not attached to it, and there is nothing to show that the parties whose names are printed below the printed certificates attached to the pamphlet had charge of or had examined the original records, or that they had authority to make this publication.

The mere statement that it is official is, as before stated, only an opinion of the witness, and is not, we think, competent evidence to show that it is a correct copy of the law. This pamphlet is not such a publication as proved itself. Its correctness must be established by evidence, and, instead of so much circumlocution, the witness should have stated that he had compared it with the record ■of these laws, and that it was a true copy of the same. If he had stated that he was the keeper of these records, and knew their contents, this, in connection with his other testimony, might have been sufficient; or, if he stated that this pamphlet had been published by the authority and under the sanction of the supreme lodge of the order for the guidance of the subordinate branches of the order and the members thereof, even this might have been sufficient to raise a prima facie presumption that it was a correct copy, as against a member of the order or a beneficiary of its policy. But he does not do this. On the contrary, he endeavors to show the terms of the law, and that it had been legally enacted, by parol, and then refers to a printed pamphlet, which he says is an official publication of the constitution and general laws of the endowment rank. All these questions and answers were objected to by the, plaintiff, and the court sustained the objections and excluded the evidence. The defendant comes very near making the necessary proof, but it does not quite do so. It seems to be a case where the litigant has proved all around a necessary fact, but has not proved the fact itself. Not wishing to be needlessly technical, we have felt some doubt about this question, but a majority of us are of the opinion that the ruling of the circuit court was correct, and should .be sustained.

After this evidence was excluded, the defendant moved for a continuance, which the court refused. The matter of granting a continiiance under such circumstances being largely a matter of discretion, we are not able to say from the facts presented that the court erred. On the whole case the judgment of the circuit court must be affirmed.

Bunn, C. J., and Battle, J., think the evidence of Stolte was sufficient to go to the jury, and that it should not have been excluded, and they therefore dissent.