Klair v. Philadelphia, Baltimore And Washington Railroad Company

• Decision Date: 12 December 1910
• Parties: WILLIAM H. KLAIR and IRVING J. HOLLINGSWORTH, trading as KLAIR & HOLLINGSWORTH, v. PHILADELPHIA, BALTIMORE and WASHINGTON RAILROAD COMPANY, a corporation of the State of Delaware
• Court: Delaware Superior Court

78 A. 1085

25 Del. 274

WILLIAM H. KLAIR and IRVING J. HOLLINGSWORTH, trading as KLAIR & HOLLINGSWORTH, v. PHILADELPHIA, BALTIMORE and WASHINGTON RAILROAD COMPANY, a corporation of the State of Delaware

Superior Court of Delaware, New Castle County

December 12, 1910

Superior Court, New Castle County, November Term, 1910.

Action on the case to recover damages alleged to have been sustained by the plaintiffs to certain shipments of cattle from Chicago, while being transported over the defendant's line of railroad to Price's, Millington, Barclay, and Centreville, in the State of Maryland. The damage complained of was alleged to have been caused by improperly caring for and handling said cattle while in transit to said destinations. The facts are sufficiently stated in the charge to the jury.

At the trial, the plaintiffs having summoned an employee of the defendant company duces tecum, upon the appearance of said employee in court as a witness, and before he was called to testify, counsel for plaintiff requested the witness to deliver to him the papers which he had been instructed to bring under the duces tecum, which request was complied with by the witness. The fact that the papers had been delivered coming to the knowledge of counsel for defendant, he brought the matter to the attention of the court and insisted that counsel for plaintiffs was not entitled to the papers in question to the exclusion of counsel for the defendant, and contended that the papers should remain in possession of the witness until he should be called to the stand.

HASTINGS J.:--

Upon reference to Woolley on Delaware Practice, at section 573, under the head of "Subpoena Duces Tecum," we find this: "A subpoena duces tecum is a writ or process of the same kind as the subpoena ad testificandum, issued for the same purpose and an additional purpose of requiring the witness to bring with him and produce to the Court books, papers or things, in his hands tending to elucidate the matter in issue. This is the only method in most cases of obtaining the production of a document in the hands of a person not a party to the action and it is applicable only to those who are not parties to the action. The production of documents in the possession of the adverse party cannot be compelled under a subpoena duces tecum. The right of one party to compel a production of documents held by the other party is a right, not of course, but subject to be contested, depending upon considerations to be inquired of, and decided by the Court before an order for production will be made."

We would also call your attention to sections 334 and 339, which embody a very similar discussion of these matters in this state. Under that authority you cannot get these papers by that method.

Mr. Neary:--My application is to have these papers returned to the witness.

HASTINGS, J.:--

We think, Judge Ball, that that ought to be done.

When the plaintiffs had closed, defendants offered in evidence certain contracts made with the consignors covering said shipments, said contracts being signed by a person authorized by the consignors to make the same under a power of attorney.

Said power of attorney was also offered in evidence in connection with the said contracts. All these papers were objected to, by counsel for plaintiffs. After hearing an extended argument, the court delivered the following opinion which states the facts and contentions of the respective

Verdict for plaintiffs.

COUNSEL:

Lilburne Chandler and J. Frank Ball for plaintiffs.

Andrew C. Gray and John F. Neary (of Ward, Gray and Neary) for defendant.

Judges BOYCE and HASTINGS sitting.

OPINION

HASTINGS, J.

Counsel for the defendant have offered in evidence certain papers which have been marked "Defendant's Exhibits, 1, 2, 3, 4, and 5," and objection has been made to their admission.

Exhibit 1 is as follows:

"To the Pennsylvania Company and the Pittsburg, Cincinnati,

Chicago & St. Louis Railway Company.

"We, the undersigned, hereby authorize and empower E. A. Rogers, W. C. Coughlin, C. M. Leslie, F. J. Hayden, for us and in our name to make and execute any and all live stock contracts of any character whatsoever covering any shipment of live stock by us, as fully and amply, and with the same effect as if the said contracts had been made by us personally, hereby ratifying and confirming all that our said agent shall lawfully do in the premises by virtue hereof.

"Witness our hands and seals this 21st day of March, 1904.

"[Signed] HUFFMAN & STUART,

"J. E. STUART."

Exhibits 2, 3, 4, and 5, purport to be contracts entered into by the said Huffman & Stuart for shipments of live stock, from the Union Stockyards, Illinois, to Price's, Millington, Barclay, and Centreville, in the State of Maryland. These papers are identical except as to dates, place of destination and the name of the shipper's agent, which in two of them is C. M. Leslie, and in the other two is F. J. Hayden. In order that this opinion may be the more intelligible, we quote one of said contracts, which is as follows:

"Pennsylvania Company,

Uniform Live Stock Contract.

Union Stock Yards, Ill., Station, Oct. 15, 1906.

W. B. No. 436

"This Agreement, made this Oct. 15, 1906, day of Oct. 15, 1906, by and between the Pennsylvania Company, hereinafter called the carrier, and Huffman & Stuart, hereinafter called the shipper:

"Witnesseth: That the said shipper has delivered to the said carrier live stock of the kind and number, and consigned and destined by said shipper, as follows:

Consignee, Destination,

Number and Description

Weight, Subject

etc.

of Stock.

to Correction.

Klair & H.

53 Cattle

22400

Millington, Md.

Charges Advanced, $ 1.00.

Car Nos. and Initials, Streets 571.

for transportation, from Union Stockyards, Ill., to destination, if on said carrier's line of railway, otherwise to the place where said live stock is to be received by the connecting carriers for transportation to or toward destination, and that the same has been received by said carrier for itself and on behalf of connecting carriers, for transportation, subject to the official tariffs, classifications and rules of the said company, and upon the following terms and conditions, which are admitted and accepted by the said shipper as just and reasonable, viz.:

"That said shipper, or the consignee, is to pay freight thereon to the said carrier at the rate of tariff per cwt., which is the lower published tariff rate based upon the express condition that the carrier assumes liability on the said live stock to the extent only of the following agreed valuation, upon which valuation is based the rate charged for the transportation of the said animals, and beyond which valuation neither the said carrier, nor any connecting carrier shall be liable in any event, whether the loss or damage occur through the negligence of the said carrier or connecting carriers or their employes, or otherwise:

If horses or mules--not exceeding one hundred dollars each.

If cattle or cows--not exceeding seventy-five dollars each.

If fat hogs or fat calves--not exceeding fifteen dollars each.

If sheep, lambs, stock hogs, stock calves, or other small animals-- not exceeding five dollars each, and in no event shall the carrier's liability exceed twelve hundred dollars upon any car load.

"That said shipper is to pay all back charges, and freight paid by said carrier or connecting carrier upon or for the transportation of said live stock.

"That the said shipper is at his own sole risk and expense to load and take care of, and to feed and water said stock whilst being transported, whether delayed in transit or otherwise and to unload the same; and neither said carrier nor any connecting carrier is to be under any liability or duty with reference thereto, except in the actual transportation of the same.

"That the said shipper is to inspect the body of the car or cars in which said stock is to be transported, and satisfy himself that they are sufficient and safe, and in proper order and condition, and said carrier or any connecting carrier shall not be liable on account of any loss of or injury to said stock happening by reason of any alleged insufficiency in or defective condition of the body of said car or cars.

"That said shipper shall see that all doors and openings in said car or cars are at all times so closed and fastened as to prevent the escape therefrom of any of the said stock, and said carrier or any connecting carrier shall not be liable on account of the escape of any of the said stock from said car or cars.

"The said carrier or any connecting carrier shall not be liable for or on account of any injury sustained by said live stock occasioned by any or either of the following causes, to wit: Overloading, crowding one upon another, kicking or goring, suffocating, fright, burning of hay or straw or other material used for feeding or bedding, or by fire from any cause whatever, or by heat, cold or by changes in weather, or for delay caused by stress of weather, by obstruction of track, by riots, strikes or stoppage of labor, or for causes beyond their control.

"That in the event of any unusual delay or detention of said live stock, caused by the negligence of the said carrier, or its employees, or its connecting carriers or their employees, or otherwise, the said shipper agrees to accept as full compensation for all loss or damage sustained thereby, the amount actually expended by said shipper, in the purchase of food and water for the said stock while so detained. That no claim for damages which may accrue to the said shipper under this contract shall be allowed or paid by the said carrier, or sued for in any court by the said shipper, unless a claim...