M. Lewis & Sons v. Illinois Cent. R. Co.
| Decision Date | 27 March 1924 |
| Citation | 259 S.W. 903,150 Tenn. 94 |
| Parties | M. LEWIS & SONS v. ILLINOIS CENT. R. CO. ET AL. |
| Court | Tennessee Supreme Court |
Certiorari from Chancery Court, Shelby County; I. H. Peres, Judge.
Suit by M. Lewis & Sons against the Illinois Central Railroad Company, the Lewis Transfer Company, and others. Decree for complainants against the last-named defendant affirmed by the Court of Civil Appeals, and said defendant and complainants bring certiorari. Petitions denied, and decree affirmed.
Randolph & Randolph, of Memphis, for complainants.
Burch Minor & McKay, L. W. Taylor, and Sivley, Evans & McCadden all of Memphis, for defendant.
The complainants, merchants in Memphis, Tenn., filed the bill herein against the Illinois Central Railroad Company and several other railroad companies, and against the Lewis Transfer Company, a partnership engaged in the transfer business in Memphis, Tenn., seeking to recover the sum of $269.40, being the value (with interest) of certain merchandise stolen from a box of goods consigned to the complainants at Memphis from New York City.
The chancellor held that none of the railroad companies were liable, but that complainants were "entitled to a decree against defendant, the Lewis Transfer & Storage Company which was the terminal carrier," in the sum of $269.40.
The complainants appealed to the Court of Civil Appeals from so much of this decree as failed to hold the railroad companies jointly liable with the transfer company, and the defendant Lewis Transfer Company appealed from the whole decree.
The Court of Civil Appeals affirmed the decree of the chancellor. It was of opinion that the transfer company could not be considered a connecting carrier, but, on a review of the evidence, held that the theft must have occurred while the goods were in its possession.
The Lewis Transfer Company has filed its petition for certiorari and the complainants have also filed a petition, seeking a decree against the railroad companies in case this court should sustain the petition of the Lewis Transfer Company.
1. In order to sustain its conclusion on the facts, the Court of Civil Appeals found it necessary to rely on the following portion of the transcript:
"Stipulation of Counsel.
It is agreed by and between counsel representing all parties to this litigation that, when car A. T. & S. F. 26207, containing the box involved in this litigation, was received by the Illinois Central Railroad Company from its connecting carrier at Louisville, Ky., it bore the same seal numbers as those testified to by the witness George Gordon." This "stipulation" follows the deposition of George Gordon, and immediately precedes the deposition of W. A. Wyley.
These depositions were filed in the cause, and were taken under a caption showing that the depositions of George Gordon, W. A. Wyley, and G. H. McLean were taken by consent on December 30, 1921, in the city of Memphis, Tenn., at the office of one of the counsel in the case. This caption reads, in part, as follows:
These are the counsel of record for the various parties in this cause.
After the caption appears this statement:
Then comes the "stipulation" already quoted, which is on a separate page of the transcript.
On the next page of the record, immediately following the stipulation, appears the following:
We do not think that it can be said that this stipulation was never filed in the case, for it is evidently contained in the transcript of the depositions, which was filed as a whole.
We think, moreover, that it is improbable that the reporter, in transcribing these depositions, inserted this "stipulation" between the two depositions without authority. It follows and refers to the testimony of the witness George Gordon. It covers a material fact in the litigation. The caption of the deposition shows that counsel for all parties (including counsel for the Lewis Transfer Company) were present when the depositions were taken, and the stipulation, on its face, purports to be made "between counsel representing all parties to this litigation."
It is true that the stipulation is not authenticated by the signatures of any counsel. But neither is the stipulation in the caption that the depositions were taken by consent with waiver of all formalities, and the further stipulation that the signatures of the witnesses to their depositions are waived.
But, conceding that counsel might have objected to this stipulation as evidence in the court below, the record shows no objection of any kind to its admissibility in the trial court.
Under these circumstances, we are of opinion that the objection made here for the first time comes too late. Nelson v. Claybrooke, 4 Lea, 687, 691, 692; Ehrlich v. Weber, 114 Tenn. 711, 718, 88 S.W. 188; Insurance Co. v. Scales, 101 Tenn. 628, 632, 640, 49 S.W. 743; Earp v. Edgington, 107 Tenn. 23, 30, 64 S.W. 40; Keneval v. State, 107 Tenn. 581, 585, 586, 64 S.W. 897; Wheeler v. Sedgwick, 94 U.S. 1, 3, 24 L.Ed. 31.
We know from observation and experience that informal stipulations, similar to the one in question, are frequently made and observed, although unsigned, and reliance is placed upon them by counsel. Thus, in taking depositions, formalities are waived, or leave is given to use a copy instead of an original exhibit, by notation dictated to the reporter.
Even an oral stipulation between court and counsel relating to a bill of exceptions may be enforced by original bill in equity, where its repudiation would cause irreparable injury to one of the parties, though the case be then pending in this court. Gas & Electric Co. v. Simpson, 118 Tenn. 532, 103 S.W. 788.
We think that, if counsel wish to attack such a stipulation as unauthorized, and as improperly inserted into the record by the reporter, objection should be made in the lower court, so that other parties may then apply to the chancellor for leave to take additional proof on the matters covered by the stipulation, or for other appropriate relief.
We are therefore of opinion that the Court of Civil Appeals properly considered this stipulation in reaching its conclusion on the facts.
2. It is insisted for the Illinois Central Railway and others that the Lewis Transfer Company was a common carrier (10 C.J., p. 50); that the box containing the goods in question was delivered (as the transfer company concedes) in good condition to the New York Central Railroad, the initial carrier; that the transfer company was the last carrier handling the shipment, and delivered it in damaged condition; and that a presumption arises that the loss occurred while the goods were in its possession.
The general principle is well settled as between connecting carriers. It is in turn based on the presumption in favor of the continuance of a state or condition once shown to exist--i. e., that goods received in good condition remain in good condition until they reach the carrier in whose hands they are found in damaged condition. 3 Hutchinson on Carriers (3d Ed.) p. 1591; 2 Moore on Carriers, p. 776; 4 Michie on Carriers, § 3801; 4 R. C. L. pp. 925, 926; 10 C.J. 556; 6 Cyc. 491; Chicago & N.W. Ry. Co. v. Whitnack Produce Co. (April 10, 1922) 258 U.S. 369, 42 S.Ct. 328, 66 L.Ed. 665.
Our own cases are in accord. Memphis & Charleston Railroad Co. v Holloway (1877) 9 Baxt....
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Brown v. Brown
...different position on appeal. See Mast Adver. & Pub., Inc. v. Moyers, 865 S.W.2d 900, 903 (Tenn. 1993) (citing Lewis & Sons v. Ill. Cent. R. Co., 150 Tenn. 94, 259 S.W. 903 (1924); Stearns v. Williams, 12 Tenn. App. 427 (1930)). Mr. Brown also alleges that Mrs. Brown breached her fiduciary ......
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Schultz' Estate v. Munford, Inc.
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