in the possession or under the control of the party offering the record, authorizes the admission in evidence of the records of the register of deeds to prove the instrument.38 was shown that the letter was lost or could not be obtained. Bruce v. Mathewson, 155 P. 787, 97 Kan. 466. Where letters between a party to the action and a third party are relevant as tending to prove that one party was negotiating a trade which was afterwards consummated, and one of the letters is lost, it is not abuse of discretion to permit a witness to testify to the receipt of the letter and its contents. Gulliford v. McQuillen, 89 P. 927, 75 Kan. 454. Where a person who has suffered loss by the neglect of a telegraph company to deliver a message serves upon the agent of the company a written demand for damages, and gives the agent a copy thereof, but keeps the original, on which the agent accepts service in writing, he may prove the contents thereof by parol where the loss of the original is shown. Union Tel. Co. v. Collins, 25 P. 187, 45 Kan. 88, 10 L. R. A. 515. Western Where written material evidence is admitted to have been in the possession of a party to the action, it is error to admit evidence of its contents until it fairly appears that the writing is lost or destroyed. Smith, Carey & Co. v. Atchison Live Stock Co., 140 P. 108, 92 Kan. 5, reversing judgment on rehearing 133 P. 723, 90 Kan.. 258. 38 Dyal v. Norton, 47 Okl. 794, 150 P. 703. Admission of records of register of deeds office without first showing that the original deeds were not in the possession or under the control of the party offering the records, held error. Farmers' Hardware & Implement Co. v. Thacker, 54 Okl. 425, 153 P. 1144. Kansas cases. Where testimony is given to show that defendant has the possession of a written instrument, the subject of the action, and defendant testifies that he does not have and never did have the possession thereof, and that it never existed, oral evidence of the contents of such instrument is admissible. Bertenshaw v. Laney, 94 P. 805, 77 Kan. 497. The presumption that the original of a written instrument is not in the possession of one a stranger to it is sufficient, in the absence of other showing, to admit the record of such instrument, found in the books of the register of deeds' office, to be read in evidence. Neosho Val. Inv. Co. v. Hannum, 66 P. 631, 63 Kan. 621. Under Comp. Laws, c. 80, § 387a, providing that the records kept by the register of deeds may be used in evidence where the original of such records is not in the possession, or under the control, of the party desiring to use the same, the testimony of the husband of a person desiring to introduce the record of a deed that he is her agent, and keeps all her papers, but that such deed is in a distant state, and has never been in his hands, is sufficient to warrant the admission of the record. Stratton v. Hawks, 23 P. 591, 43 Kan. 538. Under Code Civ. Proc. §§ 372, 387a, making the record of deeds duly recorded admissible in evidence when the originals are not in the possession or under the control of the party desiring to use the same, the record is admissible without proof that the originals are not in the possession of the party by whom it is offered when the originals were made to persons claim It is proper to admit oral testimony as to the contents of a writ ing, when it is first shown that it is lost.89 Secondary evidence of the contents of a written contract is inadmissible, though such instrument is in possession of one not ing adversely to him, and he is not entitled to their custody. McLean v. Webster, 26 P. 10, 45 Kan. 644. Code Civ. Proc. § 369 (Gen. St. 1909, § 5964), authorizing admission of record of instrument, properly recorded, without preliminary proof, furnishes the rule as to such evidence, notwithstanding Gen. St. 1909, § 1678, authoriz ing admission of secondary evidence on proof of the loss or destruction of the original. Wendell v. Heim, 123 P. 869, 87 Kan. 136. In an action against a telegraph company for failure to deliver a message, it is not error to admit a copy of the message, properly identified, fourteen months after its receipt for transmission by the company, where it is first shown by the manager at the receiving office that the original is not in his office, nor under his control, and that, by the rules of the company, original messages are retained in the office where received for six months, and are then sent to Chicago and destroyed. Western Union Tel. Co. v. Collins, 25 P. 187, 45 Kan. 88, 10 L. R. A. 515. In an action to recover goods which were consigned on the understanding that title was to remain in the consignee until they were paid for, and which the consignee had transferred to defendant, letterpress copies of letters from plaintiff to consignee may be introduced as secondary evidence, when it has been shown that the original letters have been directed and mailed in the usual course of business, and there is preliminary proof, from the party to whom they were addressed, that he had made diligent search for them, and they could not be found. Powell v. Wallace, 25 P. 42, 44 Kan. 656. Where a deed shown to have been deposited in a public office is said to have been lost or destroyed, the testimony of the custodian of such office, or 39 Redus v. Mattison, 121 P. 253, 30 Okl. 720. To admit secondary evidence, it must appear that the original has been lost or destroyed, and a mere showing that it was mislaid through defendant's negligence will not warrant admission of a copy. Missouri, O. & G. Ry. Co. v. West, 50 Okl. 521, 151 P. 212. Parol evidence of the contents of a written option and assignment was improperly admitted, where no steps to require their production by subpoena duces tecum, under Comp. Laws 1909, § 5844, were taken, nor any steps taken to obtain an inspection and production under section 5888; there being no evidence that they were lost or destroyed. Landon v. Morehead, 126 P. 1027, 34 Okl. 701. On the issue of the admission of parol testimony as to the contents of a letter which witness had received, evidence held sufficient to prove that the letter was lost. Adams v. King (Okl.) 173 P. 206, reversing order on rehearing, 170 P. 912. Oral evidence is incompetent to prove the allotment records of the Commissioners to the Five Civilized Tribes, in the absence of a showing that such records have been lost or destroyed. Gilbert v. Brown, 44 Okl. 194, 144 P. 359. a party to the suit and who lives in another state, without first showing that such instrument was lost or beyond the control of the party wishing to prove the terms thereof.4° It is a condition precedent to the introduction of a copy of a letter in evidence that a proper predicate be shown for the admission of such secondary evidence.*1 some person who has himself searched in such office, must be produced, showing that after search he was unable to find the instrument, before secondary evidence of its contents is admissible. Lee v. Bermingham, 1 P. 73, 30 Kan. 312. Where a card is tacked to a railway tie, bearing the printed words, "A. & T. Tie Company," and the written words, "creosote treated ties," slight evidence of the loss of the card is sufficient to authorize parol proof of its contents, as it was not likely to be preserved. Atchison, T. & S. F. Ry. Co. v. Palmore, 75 P. 509, 68 Kan. 545, 64 L. R. A. 90. Secondary evidence of a deed alleged to be lost is inadmissible without a showing of reasonable diligence in a search for the original. Rullman v. Barr, 39 P. 179, 54 Kan. 643. When a suit is brought to recover on a promissory note, and it is alleged that the note is lost, and cannot be procured at the trial, proof that the note was delivered to an agent for the payee, and that the agent transmitted the note to the payee by mail, and that it was assigned to the plaintiff by the payee while yet in the hands of the agent, and that the plaintiff has never received the note, without in any manner attempting to prove by the payee that he never received the note, or that he had no knowledge of its whereabouts, is not sufficient proof of the loss of the note to entitle the plaintiff to prove its contents or tenor by secondary evidence. Richardson v. Fellner, 60 P. 270, 9 Okl. 513. 40 Pringey v. Guss, 86 P. 292, 16 Okl. 82, 8 Ann. Cas. 412. Before secondary evidence of the contents of an invoice of a stock of goods can be received, the party offering it must, at least, account for the absence of the original. Coder v. Stotts, 32 P. 1102, 51 Kan. 382. To introduce parol evidence of the contents of a written contract the party offering such evidence must show that original contract was lost or destroyed or beyond his control. McCoy v. Wosika, 75 Okl. 3, 180 P. 967. Oral testimony is admissible to show the terms of a written contract which the evidence already admitted shows has been lost and cannot be produced. City of Checotah v. Chapman Valve Co., 52 Okl. 481, 153 P. 133. In an action on a note, where it is shown that it is lost and cannot be found, it is not error to admit oral evidence of its contents. Randolph v. Hudson, 74 P. 946, 12 Okl. 516. Where the records of an adoption by the court have been destroyed, parol evidence of their contents and evidence of acts and declarations of the adopting parent are admissible to establish adoption. Coombs v. Cook, 129 P. 698, 35 Okl. 326. 41 National Surety Co. v. Oklahoma Nat. Life Ins. Co. (Okl.) 165 P. 161. Before parol evidence is admissible as to contents of lost document, it is Secondary evidence of a document not in possession of the party offering such evidence is not admissible, without notice to the adverse party to produce the document.* 42 The rule requiring a party to show that he has used all the means in his power to obtain the original does not apply, where it is in the custody of the adverse party, who admits that the same is lost. But a notice to produce an instrument, the existence of which is denied, would be vain and ineffectual, and is therefore unnecessary." necessary to prove that document was actually executed and delivered by person or persons sought to be bound. Hallam v. Bailey (Okl.) 166 P. 874. In factor's action for advances receipted, freight bills were secondary evidence, and not admissible without preliminary testimony identifying them or showing their admissibility. Moody v. Thompson (Okl.) 166 P. 96. Where a written contract is material, the writing itself is the best evidence and where not produced, its absence must be accounted for before secondary evidence of its contents can be received. Farmers' Nat. Bank v. Hartoon, 60 Okl. 193, 159 P. 844. An order, made by the court or judge on an unverified notice or demand for inspection of a document, without proof of its existence, possession, and control by the adverse party or of further effort to procure the same, or proof of its loss or destruction, is insufficient to authorize secondary evidence. Landon v. Morehead, 126 P. 1027, 34 Okl. 701. Before secondary evidence is admissible to show the pendency of a prior action, it must appear that the record evidence is unavailable, unless such secondary evidence be used to explain missing details. Patterson v. Choate, 50 Okl. 761, 151 P. 620. 42 Roberts v. Dixon, 31 P. 1083, 50 Kan. 436. 43 Cochran v. Bank of Tuttle, 31 Okl. 171, 120 P. 652. Where a petition alleged a contract, consisting of letters and telegrams, and that one of the writings is a telegram sent by plaintiff and now in the possession of defendant, who cannot state its contents definitely, the petition was sufficient notice to defendant to permit secondary evidence as to its contents, in its absence. Atchison, T. & S. F. Ry. Co. v. Kinkaid, 30 Okl. 699, 120 P. 963. Where written agreements were in the hands of the nonresident president of defendant corporation, and a notice to produce them was given, and, not having been complied with, an order to produce them was made by the trial court which was not obeyed, copies of such agreements were properly received in evidence. Cooley v. Gilliam, 102 P. 1091, 80 Kan. 278. Evidence of the contents of letters was properly excluded, where no steps 44 Bertenshaw v. Laney, 94 P. 805, 77 Kan. 497. A subpoena on defendant to bring letters into court which were not in his possession is not a ground for introducing secondary evidence. Jobes F. Lows, 66 P. 627, 63 Kan. 886. DIVISION X.-DEMONSTRATIVe Evidence §1083. Exhibition of person Where the question of physical injury, its extent or permanency, is in issue, ordinarily it is not error to permit plaintiff to exhibit the injured part of the body to the jury, but he cannot be compelled to do so.46 1084. Exhibition of articles 45 Articles which are the subject of, or are connected with, the controversy, may be admitted in evidence, when shown to be in the same condition as at the time the controversy arose.** were taken to obtain an inspection or production of the letters. Hull v. Allen, 113 P. 1050, 84 Kan. 207. Where original demand for return of usury is in hands of defendant, notice to produce it is not necessary to allow copy to be given in evidence where form of action and allegations of pleading gave notice that production at trial would be necessary. Security State Bank v. Lane, 64 Okl. 11, 166 P. 160. 45 Continental Casualty Co. v. Wynne, 129 P. 16, 36 Okl. 325. In an action for damages for rape, a child 21⁄2 years of age alleged to be the fruit of the illicit intercourse may be exhibited to the jury to establish the facts of birth and of prior unlawful intercourse. Watson v. Taylor, 131 P. 922, 35 Okl. 768. In an action to recover for the breaking of plaintiff's leg, it is not error to allow both the injured and the uninjured legs to be shown to the jury. City of Topeka v. Bradshaw, 48 P. 751, 5 Kan. App. 879. 46 Where a person unreasonably refuses to show his injuries on request, that fact may be considered by the jury as bearing on his good faith. City of Kingfisher v. Altizer, 74 P. 107, 13 Okl. 121. The court cannot order plaintiff, in an action for personal injuries, to submit to a surgical examination either before or during trial. Id. Though one may expose his body with the permission of the court, if he chooses, he cannot be compelled to do so. Id. Where plaintiff exhibits part of his body to jury and to physicians called by him to testify as to extent of injuries, and offers to submit to examination by any physicians named by court, other than defendant's physicians, refusal to require him to submit to examination by defendant's physicians was not error. Oklahoma Ry. Co. v. Thomas, 63 Okl. 219, 164 P. 120, L. R. A. 1917E, 405. In the absence of a statutory or constitutional provision so authorizing, the courts cannot order a plaintiff in a damage case to submit to an examination by a physician. Atchison, T. & S. F. Ry. Co. v. Melson, 40 Okl. 1, 134 P. 388, Ann. Cas. 1915D, 760. 47 In an action by a servant for injuries received from a fall from an electric light pole about 30 feet in height alleged to have been caused by the rotten condition of the pole near the top, where the pole, after having been used for a short time after the accident, was removed and shortly there |