Miller v. N. Pac. Ry. Co.

• Decision Date: 23 November 1908
• Citation: 18 N.D. 19,118 N.W. 344
• Parties: MILLER v. NORTHERN PAC. RY. CO.
• Court: North Dakota Supreme Court

18 N.D. 19

118 N.W. 344

MILLER

v.NORTHERN PAC. RY. CO.

Supreme Court of North Dakota.

May 4, 1907.

On Rehearing, Nov. 23, 1908.

Syllabus by the Court.

A public record kept pursuant to the law of a sister state, when properly proved, is admissible in evidence in the courts of this state as prima facie proof of the facts therein recorded.

Although proof of such foreign record was erroneously rejected by the trial court, such ruling was without prejudice to plaintiff, for the reason that, even if such record proof had been received, he would have failed to substantiate his cause of action by a fair preponderance of the evidence.

Appeal from District Court, Eddy County; E. T. Burke, Judge.

Action by E. J. D. Miller against the Northern Pacific Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Spalding, J., dissenting.S. E. Ellsworth, for appellant. Ball, Watson & Young, for respondent.

FISK, J.

This is an appeal from a judgment of the district court of Eddy county in defendant's favor rendered pursuant to a verdict directed by the court.

The action was brought to recover damages from defendant, as a common carrier of freight, for alleged negligence in transporting a certain car of flax belonging to plaintiff from Barlow, in this state, to Duluth, Minn., whereby it is claimed that a certain quantity of such flax was lost in transit. The car was consigned to Crumpton & Crumpton, commission brokers at West Superior, Wis., and in due course the same was sold by them at Duluth and a return of the proceeds made to plaintiff, which returns were based upon weights taken by the state weighmaster's department of the state of Minnesota at Duluth. Plaintiff, to prove his cause of action, relied solely upon the discrepancy between the weights taken at Barlow at the time the flax was loaded into the car and the weights as shown by the records in the office of the state weighmaster aforesaid; no evidence being offered to show leakages in the car or that it had been tampered with while in transit. Appellant relies for a reversal of the judgment upon alleged errors of the trial court in rejecting testimony offered by him to show the records made in the office of the state weighmaster pertaining to the car of flax in question. This testimony consisted of a deposition of one J. B. Sutphin, state weighmaster at Duluth, who testified that, according to his records, the car was weighed by one Bagley at the time of its arrival, who was at that time a properly qualified assistant weigher in his department, and that such assistant made a record in writing of the date, description, and weight of the car and turned the same into his office in regular course of business pursuant to his official duty, where it had been at all times since. The witness had no personal knowledge of such weighing and did not know of his own knowledge whether it was correctly weighed or not. All he knew about it was that it was weighed in accordance with the system in vogue in his department and in accordance with the statutes of Minnesota in force at that time applicable thereto.

The court was asked to take judicial notice of the 1894 General Statutes of the state of Minnesota, creating the department of state weighmaster at Duluth, and especially to section 7705 thereof, pertaining to the records to be kept by that department, which law requires the state weighmaster and his assistants to make true weights and to keep true records of all grain weighed by them. Plaintiff, at the taking of the deposition, offered in evidence the original record of the date, description, and weight of the car as shown by the entries made by Bagley, the assistant weighmaster; but defendant objected thereto, which objection was sustained by the trial court and the testimony excluded. Plaintiff then offered a copy of such record duly proved by the witness to be correct, which offer was rejected upon the same grounds urged against the introduction of the original record. These rulings constitute the grounds upon which appellant's assignments of error are predicated. It is appellant's contention that the record, being a public record kept pursuant to law, was admissible in evidence, and was at least prima facie proof of the facts therein stated, and that with such record in evidence he would have made out his cause of action, as, according to the facts stated and shown by such records, defendant delivered to the consignee about 90 bushels of flax less than it received from plaintiff at Barlow. If this testimony was properly rejected, this ends plaintiff's case; but, if it was improperly rejected, a new trial must be ordered, provided such record would, with other evidence in the case, have made out a prima facie cause of action as alleged. The question is therefore squarely before us as to whether or not a record, such as the one in question, made by a public officer in a sister state, is any evidence per se in the courts of this state of the facts recited in such record as against a third person, a stranger thereto.

Under the provisions of the Minnesota law in question, we find nothing in express terms making such record prima facie evidence of the truth of the matters therein set forth in the courts of Minnesota; but this law does provide that such weighmaster and his assistants shall, upon demand, give to any person or persons having weighing done a certificate under his hand and seal showing the amount of each weight, number of car, etc., and that such certificate shall be admitted in all actions, etc., as prima facie evidence of the facts therein contained. The Code of this state (section 7298, Rev. Codes 1905) provides that: “Entries in public or other official books or records, made in the performance of his duty by a public officer of this state, or by another person in the performance of a duty specially enjoined by law are prima facie evidence of the facts stated therein.” And section 7299 of the same Code provides that: “An entry made by an officer, or board of officers, or under the direction and in the presence of either in the course of official duty is prima facie evidence of the facts stated in such entry.” It is contended by counsel for appellant that the latter section refers to official records generally, and is not confined to those made by officers in this state. In this we think he is in error. It is apparent to our minds that it was the legislative intent that these sections should apply only to domestic records. There is therefore no express statute in force in this state making foreign records, such as the one in question, prima facie or any evidence per se of the facts therein stated; but the sections above quoted, in our opinion, are not exclusive in their provisions, and, as we construe them, there is nothing therein contained which restricts or limits the courts to domestic records in giving effect to them, when properly proved as prima facie evidence. While the question is not free from doubt, and while there seems to be a dearth of authorities upon the precise point here involved, we are of the opinion that the testimony was admissible and should have been received. We think it comes within the well-recognized exception to the rule excluding hearsay testimony in cases of public records made by public officers in the discharge of their official duties. We know of no good reason why this exception should be limited to public records in the state where kept, and no such restriction of the rule seems to have been recognized by the authorities. The ground upon which this exception rests is well stated in Wigmore on Ev. vol. 3, §§ 1630-1683; 1 Greenleaf on Ev. (16th Ed.) vol. 1, §§ 483, 484, 493; 1 Whart. Ev. §§ 639, 347; 9 Am. & Eng. Enc. Law (2d Ed.) 882-883; 17 Cyc. 306, and cases cited. In par. 2, § 1633, of Prof. Wigmore's valuable work on Evidence, it is stated: “The subjective influence of the official duty being the essential justifying circumstance, it follows that an official statement by a foreign officer is equally admissible with one made by a domestic officer. That the duty is not recognized by the domestic law is immaterial; it exists for the foreign officer; and so far as it exists, it affords an equally official sanction. This application of the principle, though plain, has rarely been drawn in question.” And again, in section 1652, the same author states: “That an official statement authorized to be made is the statement of a foreign officer does not make it any the less admissible. The essential thing is the authority of the officer, and a foreign authority equally satisfies the principle. There is, in the United States, the additional consideration that, under the federal Constitution (article 4, § 1) and the federal Revised Statutes (section 906 [U. S. Comp. St. 1901, p. 677]), the courts of each state are required to give full faith and credit to the records of other states, and this may well be held to imply that recognition should be given (not merely as a matter of comity, but as a matter of legal right) to an official authority created by the laws of another state for its domestic recording officers.”

Having reached the conclusion that the proof offered should have been received, we will next consider the question as to the sufficiency of the evidence, including the record evidence which was rejected, to have required the trial court to submit the case to the jury, for, of course, the error in rejecting the offered proof was without prejudice, if it would have been the duty of the court, with such record evidence in the case, to have directed a verdict as it did. As the proof would have stood had such record been received, we think plaintiff would have failed to establish his cause of action. The prima facie proof furnished by the records as to the weight of the flax, when delivered at its destination by defendant, was, we think, entirely overcome by the other evidence contained in the...