Gus Dattilo Fruit Co. v. L. & N. Railroad Co.

• Decision Date: 27 March 1931
• Citation: 238 Ky. 322
• Parties: Gus Dattilo Fruit Company v. Louisville & Nashville Railroad Company.
• Court: United States State Supreme Court — District of Kentucky

238 Ky. 322

Gus Dattilo Fruit Company v. Louisville & Nashville Railroad Company.

Court of Appeals of Kentucky. Common Pleas Branch, Second Division.

Decided March 27, 1931.

1. Evidence. — Memorandum made by person since deceased at or near time of transaction in ordinary course of business, corroborated by other circumstances, is admissible.

2. Evidence. — Ordinarily, entries cannot be used in evidence on issues between third persons.

3. Evidence. — Entries made against interest without motive to falsify by person unavailable as witness, contemporaneously with transaction in usual course of business, are admissible on issue between third persons.

4. Evidence. — Entries in books of certain corporations when kept in course of ordinary business are admissible on issues between third persons.

5. Evidence. — That same evidence was adducible from other witnesses did not render inspection bureau's report on condition of fruit inadmissible, if otherwise admissible.

6. Evidence. — When multiplicate instruments are made at one writing, each is "original entry," as regards best evidence rule.

7. Evidence. — Copy made with original by use of carbon paper, is admissible although no effort is made to secure original.

8. Evidence. — That entry is made on loose-leaf account does not militate against its admissibility if it is permanent record and otherwise admissible.

9. Evidence. — Inspection bureau's report on condition of fruit held inadmissible in shipper's action against carrier, where inspection was not made until after removal of fruit to shipper's warehouse and two days had intervened between arrival of shipment and inspection.

10. Evidence. — Portion of inspection bureau's report on condition of fruit, based on hearsay, held inadmissible in shipper's action against carrier.

11. Appeal and Error. — Alleged error in admission of evidence cannot be considered, where no exceptions are taken to court's ruling on objection.

Appeal from Jefferson Circuit Court.

JAMES BOSWELL YOUNG for appellant.

WOODWARD, HAMILTON & HOBSON, ASHBY M. WARREN, and WILBUR FIELDS for appellee.

OPINION OF THE COURT BY STANLEY, COMMISSIONER.

Affirming.

The appellant, Gus Dattilo, doing business as Gus Dattilo Fruit Company, sued the appellee, the Louisville & Nashville Railroad Company, for damages to a shipment of bananas charged to have been caused by rough handling. From an adverse judgment on the verdict of a jury, he appeals.

The Moorehead Inspection Bureau, according to the evidence, is an independent organization maintained for the inspection of shipments of perishable merchandise, and, as stated on this trial, is recognized by both carriers and shippers as neutral and impartial. The appellant testified that upon the arrival of the car of bananas involved on Saturday afternoon, January 26, 1929, he discovered they were bruised and mashed, due, as he says, to rough handling. He reported the condition to the railroad company and asked of its employees an immediate inspection by the inspection bureau, but it was not then made. He testified the bureau inspected every kind of fruit and perishable freight except bananas, and that is why he demanded an inspection. The fruit was thereupon removed to his warehouse. On the following Monday, an inspector of the bureau appeared there and inspected the fruit.

On the trial of this case, the resident manager of the Moorehead Inspection Bureau was introduced by the appellant. He testified his concern made inspections of bananas and other perishable freight for consignees and carriers. Pursuant to the usual course a copy of the inspection report as to the shipment is delivered to the carrier and to the shipper, respectively, and one is retained in the files of the bureau as a permanent record. He had with him a copy of the report kept by his organization of the inspection of the fruit involved, and testified it was made by one Seiter, a regularly employed qualified inspector, in the discharge of his duty and in the regular course of business; that the report before him was in Seiter's handwriting; was a permanent record of the bureau; that all the copies were made by Seiter at the same writing. He further testified that Seiter was permanently residing in Cincinnati, Ohio. The appellant thereupon offered in evidence this document, but upon objection by the appellee it was not admitted, and is in the record as an avowal. The rejection of this evidence, it is claimed, was prejudicial error and is relied on for a reversal of the judgment.

It is an ancient rule of law that a minute, memorandum, or entry in writing made by a person since deceased at or very near to the time when the fact it records took place, in the ordinary course of his business, corroborated by other circumstances which render it probable that the fact occurred, is admissible in evidence. 3 Jones on Evidence, 2120. This general rule, originally very narrow, has been broadened with the growth of the law and made adaptable to changing conditions and modern mercantile and industrial life, although the fundamental principles are essentially the same. Its development and the logic thereof are interestingly noted in L. & N.R. Co. v. Daniel, 122 Ky. 256, 91 S.W. 691, 28 Ky. Law Rep. 1146, 3 L.R.A. (N.S.) 1190, declared by Mr. Wigmore to be one of the best opinions on the subject. 5 Wigmore, sec. 1530.

It may be observed that the applicable rule — that is of admitting entries in books of a third party — although having some of its features, characteristics, and essentials, is to be distinguished from the shop book rule, which admits a party's original books of accounts, often without regard to whether the entrant is dead or alive or available as a witness. 10 R.C.L. 1172. The two rules are often confused. They have points of similarity and are traceable to a common origin, but each doctrine rests on a different basis and has a history of its own. 2 Wigmore, 1517; Radtke v. Taylor, 105 Or. 559, 210 P. 863, 27 A.L.R. 1423. However, we resist the allurement of tracing their courses and deviations and of elaborating upon the distinctions, confining ourselves to indicating the present status and applications to the question before us.

Ordinarily, in the absence of special grounds, books of account or entries cannot be used in evidence upon issues between third persons. 10 R.C.L. 1176. One of the exceptions is that the entries were made against interest and without a motive to falsify by a person since deceased or unavailable as a witness, which entries are made contemporaneously with the event and in the usual course of business of such third person. Another, perhaps more pertinent to the instant case, is that of entries in books of certain corporations when properly authenticated and shown to be regularly kept in the course of ordinary business. 4 Jones on Evidence, 3285. This rule is more fully stated and other authorities cited in Baskett v. Rudy, 186 Ky. 208, 217 S.W. 112,...