In Re Idaho Mutual Ben. Assn., Inc.

The practice of reserving rulings on objections to offered evidence has heretofore been condemned. (Morton R. Co. v. BigBend I. M. Co., 37 Idaho 311, 218 P. 433; Blackfoot CityBank v. Clements, 39 Idaho 194, 226 P. 1079; Seeley v.Security Nat. Bank, 40 Idaho 574, 235 P. 976.) The parties litigant are entitled to know what evidence has been admitted and what has been rejected in order that they may proceed intelligently with the litigation, and the appellate court should not be asked to resort to surmise, speculation or guess as to what the rulings of the trial judge would have been had he ruled, or what he finally decided, if he decided, was admissible and what was not.

If Exhibit 9, being, in effect, notice by the insured to the insurer of his election to substitute respondent for appellant as beneficiary of the insurance, is not in evidence the proof is insufficient for by no other means is she connected with the subject of the action. The record shows the offer of the exhibit, the objection to it and the statement of the judge reserving his ruling. It does not show he ever ruled on its admissibility.

Exhibit 9 is admissible. The right of insured to change the beneficiary, as he did by the execution of that exhibit, and by causing it to be mailed to the insurer, was absolute and unqualified; made so by the terms of the policy. Probably it was considered in evidence by the trial judge, otherwise there is nothing to sustain the finding and judgment in favor of respondent.

To reverse this case and remand it for a new trial would be useless and unprofitable. It would be to the disadvantage of both appellant and respondent and would benefit neither. On a new trial the evidence which was admitted at the former hearing, together with Exhibit 9, would conclusively establish respondent's right to the insurance. A new trial would put both parties to expense and profit appellant nothing. I concur in affirming the judgment for this reason rather than on the conclusion expressed in the foregoing opinion as follows:

"A fair and impartial interpretation of the stipulation leads to the conclusion that both parties intended the judge should consider the exhibits in determining whether there was sufficient evidence to go to the jury on the question of when they were received."

I am unable to discover that intention expressed in the stipulation.