Coad v. Pennsylvania Ry. Co.

• Decision Date: 12 December 1919
• Docket Number: 32075
• Citation: 175 N.W. 344,187 Iowa 1025
• Parties: JAMES A. COAD, Appellant, v. PENNSYLVANIA RAILWAY COMPANY et al., Appellees
• Court: Iowa Supreme Court

175 N.W. 344

187 Iowa 1025

JAMES A. COAD, Appellant, v. PENNSYLVANIA RAILWAY COMPANY et al., Appellees

No. 32075

Supreme Court of Iowa, Des Moines

December 12, 1919

Appeal from Woodbury District Court.--W. G. SEARS, Judge.

SUIT to recover for an alleged shortage in gasoline carried by the defendants, with which is coupled what is, in a sense, an alternative claim: to wit, a demand for repayment of excess freight charges. That is to say, the plaintiff contends first, that the carriers delivered less gasoline to him than he had bought, and than had been placed with the carrier; and that, if this be not so, he was charged by freight charges for more gasoline than defendants had, in fact, carried. A verdict was directed against plaintiff, and he appeals.--Reversed and remanded.

Reversed and remanded.

J. C McConkey, for appellant.

Davis Hise & Adams and Sargent, Strong & Struble, for appellees.

SALINGER, J. LADD, C. J., EVANS, PRESTON, and STEVENS, JJ., concur.

OPINION

SALINGER, J.

I.

Loosely stated, it was error to direct a verdict against the plaintiff in toto, because, in an alternative way at least, he was entitled to go to the jury on the claim that the carrier had delivered less gasoline than had been delivered to it. And if, for the sake of argument, a verdict should have been directed against him on this claim, it still remained his right to show that he had paid freight on a certain number of gallons of gasoline, and that a less quantity was delivered to him. If the carrier could demand a holding that there was no shortage, and that it delivered all it received, still, if it charged freight on more than it delivered, failure to prove shortage did not destroy the right to go to the jury on how much freight overcharge there had been. The general line of objection sustained was that the testimony was incompetent, irrelevant, and immaterial, and because it has not been shown there has been any loss. These reason in a circle, and urge a non sequitur. They say one may not show that he had a loss, and that, if this contention be upheld, that will prevent him from showing that he has been overcharged in freight. In other words, if it appear that a carrier received 100 gallons of gasoline, he charged freight for 100 gallons, and delivered but 90, he owes for the value of the 10 gallons, and also for having charged freight on 10 gallons that, so far as the consignee is concerned, were never carried. If there is no shortage because the carrier never received more than 90 gallons, then, if he charged on 100 gallons, he overcharged to the extent of 10 gallons. To this, the assertion in the motion to direct verdict that no negligence of the carrier is shown is irrelevant. It is not a question of negligence. It makes no difference how the oil was lost, unless it be shown that the loss was due to the act of God, or the like. It is not a question of negligent handling, but of a failure to perform what is a mixture of contract and duty: to wit, to deliver safely what had been received. If not delivered, the mere fact that no negligence in handling was shown has nothing to do with the case. Of course, that is true of overcharge in freight. The fact that the carriers were not negligent certainly does not authorize to charge for more than was carried.

The plaintiff made profert as follows: To prove by duplicate freight bills and bills of lading when, from where, and to whom gasoline was shipped over the lines of defendants, and the amount of gasoline so shipped. He made like profert to show how much was paid for carriage. The court sustained objection that same and testimony tendered by it were incompetent, irrelevant, and immaterial, secondary, hearsay, "and in no way binding upon either defendant." The real avoidance attempted is found in the statement of counsel for the railroad that "the defendants are unable to produce any of the papers; the lapse of time makes it impossible to locate any such papers, if any ever existed, and I have heretofore told Mr. McConkey we were unable to locate any such records of such shipment." Apparently, upon this excuse said objection was sustained.

The plaintiff, as he was required to do, filed his claim. He filed it with the delivering carrier, and seems to have attached the original bills of lading or waybills to the claim--which it was perfectly proper to do. He was not permitted to introduce duplicate freight bills, bills of lading or waybills, and the like, and thereby to show the number of gallons that had been delivered to the initial carrier. He made demand for the originals, and the defendants did not produce them. The excuse has been stated. We think the duplicates offered should have been received. See Simons v. Petersberger, 171 Iowa 564, 151 N.W. 392; Cochburn v. Hawkeye C. M. Assn., 163 Iowa 28, 143 N.W. 1006; Fremont Can. Co. v. Pere Marquette R. Co., 180 Mich. 283 (146 N.W. 678). And the testimony of Von Tacky that a bill of lading was made was a link that should not have been stricken. Certainly, this is true of refusing the profert to show how much was paid for carriage. Grant, for the sake of argument, that no shortage was shown. Yet, plaintiff had the right to show that he received a stated number of pounds, which, whether constituting a shortage or not, were still all he got. Upon that, he certainly had the right to show that he paid freight on more pounds than the number delivered.

II. If we apprehend rightly, it is the position of appellees that certain depositions were justifiably ruled out; that, as a result, there was no competent evidence of how much gasoline had been delivered to the initial carrier; and that, therefore, there is and could be no competent evidence of shortage.

This position brings up for consideration: (1) Was the evidence rightly excluded? (2) If so, is there enough competent evidence to send shortage to the jury?

2a. The exclusion of Exhibit A, an invoice by the shipper, setting forth what was shipped, and other correspondence between them as to damage done to the shipment, was proper. Same is not binding upon the carrier, though the shipper and consignee have thereby agreed upon the matter. Yarcho v. Chicago, R. I. & P. R. Co., 183 Iowa 1180, at 1182, 168 N.W. 336. The exclusion of much testimony for which it is claimed that it tended to show when, from where, by whom, and to whom the shipment was made, and who did the carrying, was, in any event, harmless. The only controversy is on how much gasoline the shipment contained when delivered to the initial carrier, what shortage, if any, there was on delivery, and whether, in any event, if there was no shortage, there was not an excessive freight charge. None of the matters excluded cramp the plaintiff in his attempts to prove these vital matters.

The exclusion of other testimony was rightful, under the following rules or propositions:

2b. (a) Where one testifies he has no personal knowledge, except what he gleans from books and records in his office, kept by his bookkeeper, any attempt on his part to state from where a railroad shipment was made, when made and by whom, to whom and the contents of the shipment, is vulnerable to the objection that it is incompetent, irrelevant, and immaterial, and not the best evidence.

(b) The naked fact that one has "a record" concerning the details of a shipment, etc., does not qualify him to speak as to such matters, where he has no personal knowledge concerning the same.

(c) One who has no personal recollection of a matter, except from a record kept by another, may not testify to a transaction purported to be disclosed by such record.

(d) As between a consignee, claiming damage, and the carrier, entries in the regular book of the shipper as to the material matters involved in the dispute of the shipment are inadmissible, although such books show all said matters in dispute.

Of course, the ability of a person to examine such books and make copies therefrom is no more admissible than are the contents of such books themselves. And this is so though said books comply in every way with the requirements making books of account admissible. This is in no way in conflict with the rule that books of account, kept regularly in the ordinary course of business, and as a part of the merchant's system of accounts, are, in a proper case, admissible to fix the date of a sale made by him. Gibson v. Seney, 138 Iowa 383, 116 N.W. 325. Nor is it in conflict with the rule that, where the business involves nothing but minute items, like the daily current ticket sales at a railroad station, that a book which cannot be altered as to the record of sales of some particular day without unbalancing the record of other days, may, in a proper case, be used as evidence. State v. Brady, 100 Iowa 191, 69 N.W. 290. It is not in conflict with cases like Edwards v. City of Cedar Rapids, 138 Iowa 421, 116 N.W. 323, which states the rule that an official entry, made in the course of official duty, is admissible in proof of facts therein recited.

(e) Where entries in a special book are made when doing certain work with reference to a shipment, and are made by several, and some do not testify, the one who does may not testify from entries in the special book kept by him and the others jointly, as to the details of the shipment.

(f) It is general books of account in their totality, and kept in the regular course of business, which, on proper foundation, are admissible even for the keeper of the books. And the rule of necessity which permits so using such books does not apply to a special memorandum record kept by some employee for himself, even though he makes entries in same at or about the time when he performs his work.

(g) The naked fact that someone charged to...