Pattison, J.,
delivered the opinion o-f the Court.
Erank Hash, the husband of Cora Hash, the appellee, was the holder of a beneficiary certificate issued to him by the Brotherhood of Locomotive Firemen and Engiinemen, by wbicb bis wife, tbe beneficiary named in tbe certificate, in the event of his death, was to receive from the beneficiary fund of the brotherhood the sum of fifteen hundred dollars, upon proof of his death being furnished as required by the constitution, rules or regulations of the brotherhood.
At the time of the issuance of the certificate, Hash was employed by a railroad company and resided at Brunswick, Md., but his services were thereafter dispensed with by the company because of his excessive use of intoxicants.
After his discharge by the railroad company, he continued
to
reside at Brunswick with his family, consisting of his wife and three children, doing contract work between Cumberland and Brunswick. This work he continued to do until about a week prior to August 7th, 1913, when he returned to his home and there remained until the day last named, when he left home to seek employment.
It is not shown by the record that Hash said where he was going in search of work, thougjh his wife', as she says, was of the impression he was going to Baltimore. He on previous occasion® had left hi® home and found work elsewhere, hut on those occasions, as stated by his wife, he occasionally wrote to her and returned to his home at or around Christmas.
After leaving on August 7th, 1913, she heard nothing from him and, becoming anxious', sba instituted search for him. In her efforts to find him she went to Baltimore and while there she visited the morgiue, where she examined the records, and found a description of one whot had been taken from the harbor in September, 1913, the month following the departure of Hash from his home at Brunswick, and from the description given she was inclined to' believe that it was the body of her husband.
The body referred to had been buried in the potter’s field and, as she stated, she applied to one or more of the officers
of the local branch of the brotherhood to have it disinterred in order that it might be ascertained 'whether it was the remains of her husband, but failing in her efforts to have them do so, she, on the 7th day of July, 1914, had the body exhumed. It was at that time in an advanced stage of decomposition, but Mrs. Nash, as well as her sister, who had accompanied her to the potter’s field, testified that the body they there saw was that of Frank Nash. After its reburial, Mrs. Nash again saw certain of the officers of the local branch of the brotherhood and asked them, to have the body again taken np that it might b© shown to be that of her husband. This the officers refused or failed to do.
It is evident that they had no confidence in the claim of Mrs. Nash that the body she had exhumed was that of her husband, especially in view of the statement of a conductor upon the railroad, who knew Nash well and who had worked upon the road with him, that, on or about Christmas, of 1913, after the burial of the party mentioned, he had seen Nash upon his, train, and had spoken to him, calling him by name, and Nash had returned his salutation.
The officers of the brotherhood, whom she approached on the subject, expressed to her their non-belief in her claim that the body she had seen was, the remains of her husband; and it seems, that she then determined not to push the matter further at that time, but, to wait the lapse of seven year's, when, as she says, she was told by them, her husband would be presumed to be dead, if not heard from in the meantime; and it was pursuant to- such determination that she thereafter made application to the local organization to pay her husband’s, dues to the brotherhood, that he might be kept, in good standing during such waiting period. This the brotherhood ■did for several years, until May, 1917, when she was informed by an officer of the brotherhood that the dues would not be longer' paid by it, saying in addition thereto that, bv the constitution and by-laws of the brotherhood his disappearance for seven years without having; been heard from would
not entitle her to receive the amount named in the certificate, unless his death was otherwise shown by “positive” evidence.
On the 10th day of September, 1918, Oora Nash, the appellee, brought suit in this case to recover said amount.
A demurrer was sustained not only to the first
nar.
filed, hut also to the first and second amended declarations. The case however went to trial, in November, 1920, on the third amended declaration, and a verdict was rendered thereon for tlie plaintiff for the sum of fifteen hundred dollars, but upon motion of the defendant a new trial was granted.
The ease ag;ain proceeded to- trial on May 31st, 1921, that trial resulted in a verdict for the defendant, and again a motion for new trial was filed and granted. In the third trial a verdict was rendered on the 20th day of September, 1922, for the plaintiff for the sum of twenty two hundred and twenty dollars; and, although a motion was filed, a new trial was not granted, and judgment was entered upon the verdict. It is from that judgment this appeal was taken.
In the progress of the trial thirty exceptions were taken, twenty eight to the court’s rulings on the evidence, one upon the prayers and one to the action of the court in its refusal to instruct the jury to 'disregard a statement made to the jury by plaintiff’s counsel in his doting argument.
The dedaration upon which the case was tried the first and second times, and tire one upon which the third trial proceeded to the conclusion of the plaintiff’s evidence, when amended by the filing of an additional count, consisted of three counts.
The first, “for money received by the defendant for the use of the plaintiff as set forth in the beneficiary certificate * * * issued by the defendant to the plaintiff”; the second, “for money found due from the defendant to the plaintiff on accounts stated between them as set forth in” said certificate; and the third, a special count, in which the certificate is set out in full and which contains the allegation that “Frank
Hash, died sometime prior to July 8th, 1914. That on July 8th, 1914, the beneficiary, Cora Hash, plaintiff herein, acquired knowledge of the fact of the death of said member, and that proof of death was made within sixty days from the time the beneficiary acquired knowledge of the fact of the death of said member; and that demand was made upon the officers of the defendant organization for payment of the amount dne under said beneficiary certificate, but payment was refused.” To each of these counts the defendant pleaded “never indebted” and “never promised,” as alleged, and limitations, alleging therein that the cause of action did not accrue within three years before the institution of the suit. On the first and second pleas the defendant joined issue, and demurred to the third, which demurrer was sustained.
The fourth count, which was added at the conclusion, of the plaintiff’s evidence, after again setting out the certificate in full, alleged that “Frank Hash died sometime prior to July 8th, 1914. That on July 8th, 1914, the beneficiary,. Cora Hash, plaintiff herein, acquired knowledge of the fact of the death of said member and that notice of the identification of said Frank Hash was given to the defendant by the plaintiff on or about July 8th, 1914, which was within sixty days from the time the beneficiary acquired knowledge of the fact of the death of said Frank Hash and the defendant waived the filing of further proof of death of said Frank Hash, and although demand has been made upon the defendant for payment of the amount due. under said beneficiary certificate, payment thereof has been refused.”
A demurrer to this count was filed and overruled, whereupon the general issue plea was filed. It was upon the pleadings stated that the judgment appealed from, was obtained.
The plaintiff offered five, prayers., of thesei, only the 5th prayer, upon the measure of damages, was granted.
The defendant offered seventeen prayers, the 1st, 2nd, 3rd, 4th, 5th, 9th, 10th, 11th, 12th, 13th, 14th, 15th and 17th. of which were refused while the 6th, 7th, 8th and 16th were granted.
The first five prayers asked for a directed verdict against the plaintiff np'on the following grounds: the second for want of evidence legally sufficient; the first for the want of evidence legally sufficient under the pleadings; the third for want of evidence legally sufficient to show “that the plaintiff furnished to the defendant satisfactory proof of the death of her husband, Frank Hash, Within sixty days after she acquired knowledge of the fact of said death, or that the defendant, acting through some officer with authority to> do so, waived the filing of satisfactory proof of death.” The fourth was for causes, in effect, much the same as those mentioned in the third prayer; and the fifth, for wian-t of evidence legally ■sufficient “to show that the suit was commenced within six months from the final rejection of the plaintiff’s claim by the defendant, as required by the benefit certificate, constitution, rules and regulations of” defendant.
In passing upon these prayers, it will be necessary to> set out, to some extent, certain provisions of the certificate, constitution and rules of the brotherhood, and to state quite fully the evidence found in the record.
It is stated in the certificate, as well as in the constitution, that “all rights of action by the beneficiary upon this certificate shall he absolutely barred unless proof of death, as required by said constitution, shall he made within sixty days from the time that said beneficiary lias acquired knowledge •of the fact of the death of said member, and * * * any action under this certificate * * * by * * * the beneficiary designated herein shall he absolutely barred unless such action shall he commenced in some court of competent jurisdiction, within six months from the final rejection of the claim.”
The procedure to be followed in the event of the death of •one of the members of the brotherhood and the meaning of “proof of death” when applied in such cases, may be gathered from section 75 of the Constitution of 1907, where it is stated:
“Upon the death of a beneficiary member in good standing, it shall be the duty of the secretary of the
lodge, of which, the deceased was a member, to immediately make a statement thereof under the seal of the (local) lodge. There shall also be issued a sworn statement and a certificate of death by a coroner or by the attending physician, which shall state the date of the injury and cause of death. The collector shall issue a statement under seal of the lodge certifying to the good standing of the member at the time of his death. Affidavits of at least two reputable witnesses shall be filed with the grand secretary and treasurer, which prove the death of the member. If a physician was in attendance at his death his affidavit shall be filed, or if a coroner held an inquest upon his remains, his affidavit shall be filed. At least one sworn proof of death, shall positively identify the deceased as being the member of the brotherhood whose death claim is filed. The secretary shall forward these statements, together with the beneficiary certificate of the deceased, to the grand secretary and treasurer, who shall adjust the claim, if the same is found to be valid.”
As already said, Frank Rash, the husband of the plaintiff, left Ms homo in Brunswick, Mid., on August 7th, 1913, to seek employment elsewhere, and at that time, so far as the record discloses, he was a member of the brotherhood in good standing. His wife never heard from him thereafter, nor did she know where he had gone. In her search for him, she went to Baltimore City and, as we have said, went to the morgue to ascertain whether his remains had been brought there. In the examination of the records there she found a description of one whose age was given therein at thirty-five years, and although her husband was much older, she nevertheless thought from the description that it was possibly her husband ; and, after requesting certain officers of the local lodge to disinter the body, which was buried in the potter’s field, and after their refusal or failure to do so, she had it exhumed. The body was taken from the grave under the direction or
supervision of the officials of the morgue and, upon the arrival of the plaintiff, with her sister and Hr. Woodall, the superintendent of the morgue, at the place of its burial, the body was in a box where it oould he seen by tbem.
Upon looking at tbe body, tbe plaintiff exclaimed, “My Ood, that is him.” In describing tbe body she said: “It was in a gpod condition to he buried as long as it was,” and when asked, “Was all the flesh on the face so that yon conld recognize the person ?” she answered, “The flesh was there, but was drawn and brown like a oocoanut, but tbe hair on the head was mud. It was mud from the top’ of the head to the waist, but from here (indicating) down there was no mud at all. And the shoes were laboring shoes, like a laboring man wears, and the size of his shoes and the bunion on his feet, the hair was all full of mud except one place up here and that was just the same as if there was no mud on the head at all.” And this she said was “black with grey mixed.” It appears that those who had removed the body from the
grave
had, in handling it, brushed off his mustache, and it, or a great part of it, was lying on the “floor” of the box. This, Mrs. Hash said, was red like that of her husband.
She also testified that the teeth of the remains, like those of Mr. Hash, were decayed, and that the shoes upon the feet had enlargements on the inner side, indicating that the wearer of them had bunions. This, it seems, was the chief reason for her believing that the remains were those of her husband, 'as he had bunions, although she does not seem to have identified the shoes or clothes as those worn by Hash.
Hpon crossi-examination she stated that the face of the remains, viewed by her, “was not recognizable; it was drawn, the skin was brown.”
Mrs. Alloway, tbe sister of the plaintiff, testified that Mrs. Hash lived in Baltimore before going to' Brunswick to live. She, at that time, knew Hash, who was boarding with her sister. • Mm Hash’s former husband was then living with her. She saw; Hash quite frequently while at her sister’s in Balti
more, bat
saw little of him after they moved to Brunswick. She knew him well enough, she said, to have recognized him had she met him on the street. She went to the potter’s field with her sister and Mr. Woodall; upon their arrival there she found the “grave was opened and the body sitting in a box outside of the grave.” And she said she identified the body in the hox as that of Frank Nash.
She was asked if the fiesh was; on the face, She; answered “not on the face, on the hands-, on the face it seems the flesh was dried away, the skin was- there so- that the skin was drawn right tight, like- over a skeleton. Q. Was it- possible by looking at his face to just identify him by his face alone? A. Not by his face alone, altogether, but with the general appearance. Q. What peculiar things were you able to see then, about that body, which yon knew Mr. Nash had? A. Well the very prominent bunions and the sort of V-shape- that was worn in his teeth and then, seems that the mustache, the part that was there, and when it was touched, it fell — -resembled the appearance of his mustache.” The V-wo-rn shape place in the teeth she attributed to lhis use of the pipe, which, she says, Nash -so generally smoked. She also- spoke of his hair and tatoo marks;, all of which was very indefinite. She had not seen Nash for eight o-r ten years.
Mrs. Nash also- testified that, after viewing the body at the potter’s field, which she believed to- be the body of her husband, she went to Mr. Tony O. Stahlman, who was at that time, and has ever since been, the financial secretary of the local lodge of the defendant brotherhood. Mr. Stahlman was not at home and thus she failed to see- him. She then went tose» David May, chairman of the; local lodge, and told him about the body she had taken up, which she thought was her husband, giving her reasons for so thinking, and asked that the lodge disinter the body that it might be shown whether it was the remains of her husband. This she did with the view of applying for the insurance. It was with Mr. May that she chiefly discus-sed the question of again exhuming the body
and the further1 question of the presumption of death after the lapse of seven years. In her conversations with him, she was told by him, she says, though denied by Mr. May, that “it was the law if a person was missing, that .the insurance would be paid within seven years.”
Her sister, Mrs. All'oway, also testified that, after viewing the remains in the potter’s field, she, at the request of her sister, saw Mr. Pennell, recording secretary of the local lodge, and asked him what the lodge was going to do about disinterring the body Mrs. Hash had exhumed, and she was told by him that they could not do anything. Mrs. Hash also had a conversation with Mr. Pennell in March, 1918, before bringing suit on the 10th day of .September, 1918, in which •he said, “if it wasn’t proved, Mr. Hash was dead I could keep them, {the dues) up for ever and I would never get nothing.”
It was because of the action of the officers of the local lodge in refusing to act upon her request to exhume the body; their belief expressed to her that the body exhumed was not that •of her husband; and the suggestion that he, if not heard from within seven years from the time of his disappearance, would be presumed dead, and that at such time the insurance would be recoverable, that she deferred further action in the matter and, as a result of such determination, she applied to and had the local lodge pay her husband’s dues that he might be kept in good standing.
Pennell, in speaking of the procedure, in the event of the death of one of the members of the lodge, to recover the insurance upon his life, testified that “when we hear of a death the first .thing is the financial secretary gets in touch with where this occurred and who it is, and also our president would take action in any case of mishaps, accidents or death, and then it is reported back, and as I told you, the papers will come to* the recording secretary and we will write for the papers to file these disabilities.” That when they heard of a death they would write to the general recording secretary and treasurer of the grand lodge, at Cleveland, Ohio, to send
blanks to be filled out. He was asked, “Let me see if I understand yon ? If yon bear of a death or a death is reported to your lodge, then you send somebody to view the remains, is that what you say? A. The president. Q. He send somebody to view the remains? A. To- view the remains. Q. How do these notifications usually come to the lodge? A. Well, they come in various ways, we will get it by letter, we will get it by person, any person who hears of it makes this request to the lodge, and they are in duty bound to get after and ascertain the whereabouts and the trouble.”
The evidence we have so fully stated, was, we think, legally sufficient to go-
to
the jury, as tending; to establish the death of Nash in 1913; and the acts and conduct of the officers of the local lodge, who were to co-operate with the plaintiff in furnishing proof of his death, were legally sufficient, as tending to show a waiver of all further proof of death in conformity with the constitution, by-laws and regulations of the brotherhood within the time therein limited; or, if not showing a
waiver
as stated, such acts and conduct of said officers tended to show an estoppel, by which the defendant was prevented from requiring the plaintiff to furnish further proof of Nash’s death, which she could only do with the aid and co-operation of the officers of the local lodge.
The question, however, as to the sufficiency of the evidence upon -which to find that the body exhumed by the plaintiff was the remains of Nash, or whether there was -evidence sufficient to find a waiver of proof of death in accordance with the requirements of the certificate, constitution and rules of the brotherhood, are not for us to decide, and we are not to he understood as so. passing upon them,. These questions were for the decision of the jury.
The fifth prayer, as we have said, asked that the case be withdrawn from, the- jury, for the want of evidence legally sufficient to show that the suit was commenced within six months, from the final rejection by the defendant of the plaintiff’s claim.
If the necessity for so doing was not waived and the question was properly before the jury under the pleadings, it, upon the facts of the case, was one for the jury to decide, whether there was a final rejection of her claim and when it was so rejected, if they find such rejection.
The defendant’s first, second, third and fifth prayers were, in our opinion, all properly rejected, for the reasons we have stated.
The defendant’s sixth, seventh, eighth and sixteenth prayers, as we have said, were granted.
The court, we think, in its refusal to grant the defendant’s ninth prayer, committed no reversible error.
Its tenth prayer asked the court to instruct the jury that “unless they find the act relied on as a waiver of filing of such proofs of death happened or occurred within sixty days from the time the plaintiff acquired knowledge of the fact of the death of the insured, Frank Hash,” the plaintiff was not entitled to recover. The court’s refusal to grant this prayer was proper under the decisions of this Court in
Rokes
v.
Amazon Ins. Co.,
51 Md. 512;
Federal Mut. Fire Ins. Co. v. Julien,
144 Md. 380.
The eleventh prayer of the defendant’s was properly rejected for the reasons assigned in the discussion of its first four prayers.
The defendant’s twelfth prayer, we think, should have been granted.' By it, the court was asked to instruct the jury “that if they shall believe from the evidence that Frank Hash, the insured, was seen during December, 1914, by John W. Tucker, as testified by him, then the plaintiff is not entitled to recover in .this action, and the verdict of the jury must be for the defendant!”
John W. Tucker, a conductor on the Baltimore and Ohio Railroad, who w&s produced as witness by the defendant, testified that he knew Hash very well, they had worked together upon the road; that around the Christmas holidays of 1914, after he had heard .that a body buried in the potter’s
field had been exhumed in the previous summer and identified by Mrs. Hash as her husband, Hash boarded his train, a local between Cumberland and Baltimore, and as he says: “After we left the -station, I went back in the train and commenced taking up my tickets and I seen that fellow sitting there and I looked at him, and I looked at him the second time, and I said to- myself, ‘that is Hash,’ and when I got back to Hash, Hash handed me his ticket and I looked at him and I said, ‘Hello, H as-h,’ and he said ‘How are you,’ and he pulled his cap down over his face, and that is the last he said to me and that- i-s the last I said to him, because that was a pretty busy job and I had no- time- to talk with anybody.”
The claim of the plaintiff is that the body she viewed at the potter’s field Was that of her husband. It was shown by the evidence that the body was brought to- the morgue on the 7th day of September', 1913, and it was in a sho-rt time there"after buried in the potter’s field. It is upon the identity of said body as that of her husband that she, in this suit, in our opinion, mu-st rely in her efforts to recover the insurance1 mentioned in the certificate.
It is true the prayer segregates one question of fact from the evidence produced, and the jury are told by it that if they believe such fact exists their verdict must- be for the defendant. We do- not think, however, that the prayer is bad for such segregation. If the man that Tucker saw upon his train was Hash, then the body of the man who- had died and was buried more than a year prior thereto, and who was thereafter -exhumed and viewed by the plaintiff, could not have been the body of Hash. Hash could not have been dead in September, 1913, the time when said body was taken to the morgue, and alive in December, 1914, when seen by Tucker; and the prayer which asked that the jury be told, in effect, that if they should believe that Drank Hash was seen alive by Tucker, as stated, in December, 1914, more than a year after the death of the man who was thought and claimed by the plaintiff to- be Hash, her husband, then their verdict must be for the defendant, lsho-uld have been granted.
The fact submitted to their finding in this prayer was a central .and controlling one and, if the jury believed it expiated, it was sufficient to warrant 'the rendition of a verdict for the defendant, without consideration of other facts in the case.
Union R. R. Co. et al.
v.
Steever,
72 Md. 159;
Kaufman Beef Co.
v.
United Rys.
Co., 135 Md. 524.
The court, we find, committed no reversible error in its refusal to grant the defendant's thirteenth prayer, or in its rejection of its fourteenth, in view
pi
its other granted prayers.
The fifteenth prayer, we think, was properly refused, if for no other reason, because it ignores all evidence as to liability except that of the mere disappearance of Frank Hash, which may have been misleading to the jury, and the same may be said of its seventeenth prayer.
Before passing upon the exceptions to the evidence, we will first consider the exception to. the action of the court in its refusal to instruct the jury to disregard the statements made by the counsel of the plaintiff in his closing argument, in which he told the jury that “even if you believe that the body claimed to. have been that of Hash, was. not in fact the body of Hash, you must nevertheless bring in a. verdict for the plaintiff, if you believe from the evidence that Frank Hash, the insured, has been absent and unheard of for a period of more than seven years.”
In effect, the jury were told that they could render a verdict for the plaintiff in this action, if they believed from the evidence that Frank Hash had been absent and unheard of for a period of seven years, notwithstanding they did not believe that the body, which was claimed to be that ;of Hash, was the body of Hash. -In other words, they were told that they could render a verdict for the plaintiff if they believed from the evidence that Hash had been absent and unheard of for the period mentioned, without regard to the claim that said body was Hash’s body. This was not, we think, properly stating the law of the ease. By the law of this 'State the pxe
sumption created by the absence of the party unheard of for the period of seven yeara is not that he died within that period, but immediately upon the expiration of it.
Tilly
v.
Tilly,
2 Bland,
444; Shriver
v.
State,
65 Md. 286;
Schaub
v.
Griffin,
84 Md. 563.
Therefore, relying alone upon the presumption, Hash’s death could not have occurred earlier than the expiration of seven years from the time that he left his home, which was on August 7th, 1913, and though this time had been reached by the time of the trial of the case, only about five years had passed since his disappearance, at the time of the institution of the suit, at which time, he, under the presumption, could not have been regarded as dead, and if he were not dead at that time, the suit was prematurely brought, and no recovery could have been bad thereunder.
The constitution of the defendant contains the provision that “no liability, arising from the disappearance of a member or the presumption of death of a member arising from any such disappearance, should be incurred by the brotherhood. The said brotherhood shall only be liable for the payment of a death claim when there is positive proof of the actual death of a beneficiary member,” but the validity of this provision, which is assailed by the plaintiff, need not be passed upon, in view of the -position taken by us in relation to the rights of the plaintiff to recover in this suit upon the presumption arising from the absence of Hash.
There is in this caso a record of two hundred printed pages, consisting largely of colloquies, between counsel and between court and counsel, much of which, w’e think, might well have been omitted from the record, without impairing the proper presentation of the case to this Court.
The first- exception is to the question asked Mrs. Hash why she decided to have the body in the potter’s field taken up. To this question ,we discover no serious objection, but if it were otherwise regarded, the answer thereto renders it harmless to the defendant.
The second exception is to the admission in evidence of a photograph of Hash taken some years before his disappearance. Under some circumstances it might have been useful in the identification, of the body exhumed. But upon the facts of this case we fail to see how its admission could serve any useful and proper purpose.
The third, fifth, sixth, seventh, eighth, ninth and tenth exceptions relate to conversations had between the plaintiff and May, chairman of the local lodge. These conversations were, we think, binding upon the grand lodge and therefore admissible1 — though otherwise claimed by the defendant— because of the relation May, as chairman of the local lodge1, bore to the grand lodge, and the duty he owed the plaintiff, in connection therewith, to co-operate with her in furnishing proof of the death of Hash in accordance with the requirements of the constitution and rules of the brotherhood.
In the fourth exception the plaintiff was permitted to1 state May’s reason in saying what he did to her and to speculate as to what was his purpose. This, we think, should not have been allowed.
The- evidence admitted under the eleventh exception .should not have been admitted. It was purely hearsay evidence, but as it Was subsequently stricken out, no barm was done tbe plaintiff by its admission at snob time.
Tbe twelfth exception Was to tbe action of tbe court in not requiring tbe plaintiff to actually amend ber declaration at tbe time when it was beld by tbe court to be essential, in order to admit evidence of tibe defendant’s denial of liability and .its reasons given tberefor, Wbicb was produced by tbe plaintiff in support of ber claim that tbe defendant thereby waived proof of Hash’s death in accordance with the constitution and rules of the brotherhood; and in permitting her for the time being to proceed with the production of her evidence without the amendment being actually filed.
The fourteenth exception was to the court’s refusal to suspend proceedings and permit the defendant’s counsel to
file a special plea to, the amended declaration, which at that time had been filed, he being told by the court to file his. general issue plea, short and that under such plea he would be permitted to produce any evidence that would be admissible under a special plea. Thereafter he demurred to the amended declaration, which was overruled and then, under protest, filed the general issue plea. Under it, he was permitted to introduce, without objection, any and all evidence that he could have introduced under a special plea.
While the amended declaration was not filed at the time it was held to be essential in order to produce tbe evidence referred to, offered by the plaintiff, it was filed within the time permitted by the statute and before the defendant Was required to proceed with the taking of his evidence, and thus we are unable to discover in what way the defendant was injured by the court’s action in not requiring the amendment to be made at, tbe time the defendant claimed it. should have been made; nor do we see how the defendant was harmed because of the court’s refusal to suspend the proceeding and permit it to file a, special plea, if such was essential and proper in the ease, as it was permitted to introduce1 and did introduce1, without objection, tbe same evidence under1 the general issue plea that it would have been permitted to do under a special plea.
Tbe thirteenth, twenty-third, twenty-fourth and twenty-fifth exceptions were to the ruling of the court in permitting witnesses., who had accompanied Mrs. Hash and her sister to the potter's’ field, where they had viewed the body, to say that Mrs. Hash and her sister recognized him as Mr. Hash. If this evidence1 was wrongfully admitted, it was not a reverse ible error, as both Mrs. Hash .and her1 sister had testified that they did at such time recognize the; body as that of Mr. Hash.
The fifteenth, sixteenth, seventeenth and eighteenth exceptions involve the question of authority in May, as chairman of the local lodge, to waive for the defendant the proof of death of Hash, in accordance with the constitution and rules
of the brotherhood. The ruling upon these exceptions; we think, were proper for 'the reasons already stated; and we discover noi reversible error in the court’s rulings npon the nineteenth and twentieth exceptions.
In the twenty-first exception, the witness, an official of the morgue, was asked npon orossrexamination what his duties were. He had previously stated very fully what hisi duties were and the question was ruled out. The counsel for the defendant then asked, “Kindly tell what your duties are and what your regular course is--” The court interrupting him said, “He has answered the question; of course, I rule that out.” The counsel for the defendant, then said, “I just want to narrow it down-” when the court again interposed, saying “You1 want to do' something against the rules of evidence and 'that is the reason why I don’t allow yon to do it.” The counsel for the defendant then started to propound a question, saying “among your duties at the morgue-” when the court interposed again by saying, “Here, come on, step down, Mr. Witness,” to which the counsel for the defendant replied, “I haven’t finished with this witness,” and the court said, “Well, I have finished with him.” The counsel then said “If your Honor wants to try the case I can’t try it.” It wasi to this action of the court in ordering the witness from the stand that the twenty-first exception was taken.
Thereafter the court said, “Yon have got to try it (the case) according to the rules of evidence,” and the defendant’s counsel, answering, said, “I am going to try -it in my own manner.” The court then said, “Oh, no, you are going to try it in my manner, just bear in mind; yon must try the case according to the rules of evidence.” Whereupon the counsel excepted “to the attitude of the court before the jury.” This forms the twenty-second exception.
As stated, the witness had already said, in his examination in chief, what his duties were and, when again asked on cross-examination what they were, the court ruled out the
question. The question had been once asked and answered and there was no occasion for the question again being; asked, and thus the court was right in ruling it out. The: counsel for the defendant persisted in asking the same or a like question and the court said what it did, and or dered the witness from the stand. An attorney, of course, has the right to continue the examination of a witness for the introduction of other evidence after adverse rulings by the court upon questions propounded by him, but be should not, after a question has been ruled inadmissible, continue to ask the same question or a like question, subject, to the same objection, and if he does, there is a limit thereto at which the trial judge, who is present and in a position to observe bis conduct and demeanor, may ask the witness to leave the stand. But this, in our opinion, should not be done unless it is shown that the attorney is knowingly acting in violation of the ruling of the court and then only after being warned that such action will be taken if he continues tot ask such questions.
The twenty-sixth and twenty-seventh exceptions were to the court’s refusal to permit Woodall, superintendant of the morgue, to, state the contents of its records relating tot the body in question. This ruling, we think, was correct, inasmuch as the record itself was the hest evidence of what it contained ; nor do we discover any reversible error in the court’s rulings in the twenty-eighth exception.
The only ruling of the court left for us to pass, upon is that upon the demurrer to the fourth or additional count of the declaration.
The clause: of this count, hereinbefore set out, closes by saying “and the plaintiff further states that Frank Hash, the insured, had paid his dues and was in good standing; up to the time of his death and that the plaintiff herein has complied with all the requirements of the insurance contract above set forth except those provisions that were waived by the defendant or which the defendant is estopped to rely upon.”
The allegation of general performance of the plaintiff of the provisions: of the certificate is, in our opinion, too indefi
nitely stated. It says that the plaintiff complied with all the requirements of the contract
except those provisions that were waived
by the defendant or which the defendant is estopped to rely upon.
If a plaintiff anticipates the defense by alleging that some of the provisions of the contract, upon which the suit w;as brought, were not complied with by him because waived by the defendant, such claim, we think, should be stated with greater particularity than was done in this count of the declaration, though in this case we will not for such reason hold the count bad to the extent of saying the court in overruling the demurrer thereto committed a reversible error*. But for other errors pointed out in the rulings of the court the judgment appealed from will be reversed.
Judgment reversed, and new trial
awarded!,
the appellant to pay one-third of the costs of the record, the balance of the costs to be paid by the appellee.