Cathey v. Missouri, K. & T. Ry. Co. of Texas

• Decision Date: 23 October 1909
• Citation: 124 S.W. 217
• Parties: CATHEY v. MISSOURI, K. & T. RY. CO. OF TEXAS.
• Court: Texas Court of Appeals

124 S.W. 217

CATHEY v. MISSOURI, K. & T. RY. CO. OF TEXAS.

Court of Civil Appeals of Texas.

October 23, 1909.

On Motion for Rehearing, January 8, 1910.

Error from District Court, Dallas County; R. M. Scott, Special Judge.

Action by Mrs. M. W. Cathey against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for defendant, plaintiff brings error. Affirmed.

Carden, Starling & Carden, for plaintiff in error. Coke, Miller & Coke and Thomas & Rhea, for defendant in error.

TALBOT, J.

The plaintiff below, Mrs. M. W. Cathey, brought this suit against the defendant in error, the Missouri, Kansas & Texas Railway Company of Texas, to recover damages resulting to her from the destruction by fire of her house and its contents in Greenville, Tex., about June 19, 1906. It is alleged that through the negligence of defendant's servants sparks of fire were emitted and thrown from one of its passing engines upon the house of J. M. Tisdal, setting fire thereto, which spread and was communicated to plaintiff's house and contents, and destroyed the same. The defendant pleaded a general denial, and specially that, if the fire was communicated from defendant's engine to plaintiff's property, said engine was properly equipped for the prevention of the throwing of fire, in that the same was equipped with the best approved appliances used by practical railroad men for such prevention, and that said engine was carefully and properly handled. A jury trial resulted in a verdict for the defendant, and plaintiff appealed.

There are three assignments of error urged in the brief of the plaintiff in error for a reversal of the case, each relating to the admission of certain testimony over the objection of the plaintiff in error. The first is, in effect, that the trial court erred in permitting the witness M. E. Tateman, who was the operator and station keeper of the defendant at its west yards in Greenville, Tex., on the date of the fire in question, to use the register purporting to show the time that passenger trains passed said yards on the date of such fire, and to read and state therefrom to the jury the time when passenger trains passed said yards, when it appeared that, although the witness had made the entries in the register on the date of the arrival and departure of such trains, he made them from slips or cards purporting to show such times which were prepared and furnished him by the trainmen operating said trains, which slips or cards were not produced, but were in his office and possession at Greenville. The testimony as to the time the fire occurred is conflicting. The statements of the several witnesses relating thereto vary as to such time from 10:25 to 10:30 a. m. to about 12 o'clock. The witness Tateman was permitted, over the objection of the plaintiff, to read from the register the following entries made therein by him from cards prepared and handed him by the conductors of the respective passenger trains, to wit: "The Flyer No. 5 passed the west yards at 10:07 a. m. The McKinney train passed the west yards at 10:30; that is No. 261." He testified, in substance, that the record did not show that any other passenger train passed the west yards on the date in question between 8 and 12 o'clock; that these entries were in his handwriting, and that he entered them in the register from slips of paper or cards furnished him by the conductors of the trains therein mentioned, purporting to show the time when said trains passed through the west yards at Greenville; that said slips were then in his office and possession at Greenville. He further stated: "My record for June 19th is practically correct." He did not testify, however, of his own knowledge when these trains passed through the west yards, or that he had any personal knowledge of such time. Neither did he testify that the written memoranda furnished him by the conductors, and from which the record used in evidence was made, correctly stated the times when said trains passed. The conductors did not testify at all, nor was the correctness of the time indorsed on the slips or cards by them established by other evidence. In this state of the evidence we think the objection of the plaintiff to the effect that the register itself, or the recital by the witness of the entries made therein was hearsay and incompetent, should be sustained. It was held in Railway v. Leggett, 86 S. W. 1066, that the admission of similar testimony in a similar state of the record was erroneous, and required a reversal of the case. In the case of Missouri Pac. Ry. Co. v. Johnson (Sup.) 7 S. W. 838, the appellee sued to recover of appellant the value of certain wheat delivered to appellant for transportation, and alleged to have been lost in transit. Upon the trial it became necessary for the plaintiff to show the actual weights of the wheat placed by him in the defendant's cars; and, in order to do so, he was permitted to read from his books the account kept by him with the defendant of the amounts of the several consignments of wheat delivered. Preliminary to the introduction of this evidence, the plaintiff testified that the wheat was shipped from two points—McKinney and Farmersville—that he attended to the business at McKinney in person in connection with W. B. Harrison, his clerk; that the books were kept there; and that one D. P. Johnson, as his agent at Farmersville, attended to the weighing and shipping the produce from that point. It was also shown by the testimony of the plaintiff himself and of Harrison that the weights of a portion of the wheat shipped were first entered upon a book known as "scale book" and a memorandum of a part made and retained, and that the entries in the book offered in evidence and read to the jury were made from the "scale book" and this memorandum. Said witnesses also testified that either the one or the other of them weighed all the wheat that was shipped from McKinney; that the weights were correctly taken down on the scale book, and were entered each day in the book which was offered in evidence. Each of these witnesses further testified that the entries made by him in the account book were correct. D. P. Johnson, the agent of plaintiff, testified that the wheat at Farmersville was weighed in same manner as at McKinney; that he entered memoranda of the weights upon a scale book which was copied into an invoice book. It was also shown that the scale books containing the memoranda had been lost or destroyed. The Supreme Court held under this state of facts that so much of the account from the books introduced as pertained to the wheat shipped from McKinney was admissible. In justification of such holding the court said: "The witnesses as to these transactions testified of their own personal knowledge. They swore, in substance, that they weighed the wheat or saw it weighed, and that the weights were correctly set down in the scale book, and correctly entered in the account book from the scale book. Such entries as were not made by the one were made by the other, and each testified that the entries made by him were correct." But, as to the items of the account which related to the Farmersville consignments, the court held the testimony and book offered were inadmissible. In support of this ruling the court say: "It is apparent that neither the plaintiff nor Harrison, who made these entries, had any personal knowledge of the correctness of these items. They were made from copies from the invoice book sent to them by the Farmersville agent, and it may be true that this was done in due course of business. The invoice entries were made from the stubs. The agent, Johnson, was sworn in the case, and did not testify that he weighed the wheat correctly, or that the weights were correctly entered on the stubs, or correctly copied into the invoices. He testified he weighed the...