Woolwine v. Bick

Gill, J.

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 other was occasioned by cruelty, mistreatment and overdriving. At the trial in the circuit court a verdict and judgment was had against defendant in the sum of one hundred and seventy-five dollars, and the cause is hereby appealed.

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. The party seeking a continuance cannot thus be permitted to inject into the case irrelevant and incompetent testimony. Objections to such proffered evidence will be entertained in case of matters set out in the affidavit for a continuance to the same extent as if the witnesses were present in court offering to testify orally to such matters.

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.

Smith, P. J., concurring; Ellisoh, J., dissents.