Pollak v. Winter

• Decision Date: 13 April 1916
• Docket Number: 6 Div. 996
• Citation: 197 Ala. 173,72 So. 386
• Parties: POLLAK v. WINTER.
• Court: Alabama Supreme Court

72 So. 386

197 Ala. 173

POLLAK v. WINTER.

6 Div. 996

Supreme Court of Alabama

April 13, 1916

Rehearing Denied June 30, 1916

Appeal from Circuit Court, Cullman County; D.W. Speake, Judge.

Action of assumpsit by Sallie Winter, as administratrix, against Ignatius Pollak, revived against Helen Pollak, as executrix. From a judgment for plaintiff, defendant appeals. Affirmed.

For a statement of the case and the facts, see former appeals set out in the opinion. The following is charge B, given for plaintiff:

As by concession of plaintiff's claim in this suit is restricted to compensation for services rendered in representing defendant in the arbitration, and as there is proof of services rendered by plaintiff's testator in other matters, the defendant must show to the reasonable satisfaction of the jury that any payments of money to John G. Winter, claimed as credits or payments in this case, were made on the claim asserted in this case, and not on or for services in other matters.

The following is assignment of error 70:

The court erred in refusing to give for defendant the following charge: "If you believe the evidence, I charge you that plaintiff, if entitled to recover anything in this case, is not entitled to recover for any legal services rendered by him in the arbitration matter during the year 1904."

Assignment of error 63 is as follows:

The lower court erred in limiting the evidence of the check of date May 15, 1902; check dated June 25, 1903; check dated September 17, 1903; that the jury must be satisfied they were made as payments, or in payment, of the suit brought.

Assignment of error 60 is:

The lower court erred in permitting witness James to be asked: "What is the largest fee you ever received?"

O Kyle, of Decatur, and Rushton, Williams & Crenshaw, of Montgomery, for appellant.

W.A Gunter, of Montgomery, and Geo. H. Parker, of Cullman, for appellee.

GARDNER J.

This is the fourth appeal in this cause. See 166 Ala. 255, 51 So 998, 52 So. 829, 53 So. 339, 139 Am.St.Rep. 33

; 173 Ala. 550, 55 So. 828; and 188 Ala. 153, 66 So. 11. The character of the suit and the questions of importance presented heretofore are stated in the opinions rendered on these former appeals and need no restatement here. On the last appeal it was held that the letters offered in evidence by the appellant, tending to show that Pollak had not paid Judge Winter for his services, were sufficient to carry that question to the jury. It is insisted on this appeal that the affirmative charge was due the defendant, but from the ruling of the court on the last appeal it is quite clear that the case presented was one for the determination of a jury. This insistence is therefore without merit.

This record discloses that upon the first trial of the case the original letters were introduced by the plaintiff and were delivered after that trial to one who was formerly of counsel for defendant for the purpose of preparing his bill of exceptions. Plaintiff's counsel testified that he never received the letters back, while defendant's said former counsel insists that he returned them. We need not review in detail the evidence concerning the loss and search for these original letters, but on careful consideration thereof we are persuaded that the preliminary proof in regard to the same was sufficient to admit of secondary evidence. Laster v Blackwell, 128 Ala. 147, 30 So. 663; 17 Cyc. 543.

The first trial seems to have been in 1910, and the second in 1912. The evidence shows without dispute that on the second trial, the original letters being lost, copies of them were read from the bill of exceptions. The bill of exceptions into which these letters were copied was presented to the trial judge by former counsel for the defendant as a correct bill of exceptions, and as containing correct copies of the original letters. The bill of exceptions on appeal became a part of the record submitted to this court, and we think the proof is sufficient to justify the conclusion that the record filed in this court, certified to by the clerk of the circuit court as true and correct, contained correct copies of the letters which were set out in the bill of exceptions. We are also of the opinion that it may be reasonably concluded from the evidence that the original letters were correctly copied into the bill of exceptions. It appears without dispute, however, that defendant's said former counsel so presented to the presiding judge the bill of exceptions as containing correct copies thereof, and the court had admitted such copies in evidence as correct copies on a former trial. These letters seem to have formed a part of the transcript submitted in this court on the last appeal, and many quotations are found from some of them in the opinion rendered.

On the last trial the plaintiff, after making the preliminary proof necessary to the introduction of the evidence, offered in evidence copies of said letters from the record of this court on the second appeal. This evidence was objected to by the defendant, and it is now insisted that the admission of such copies was error calling for reversal of the cause. The decisions of our court appear to recognize that there are different degrees of secondary evidence, and that the rule requires the introduction of the best kind, or that character of evidence which it appears to be in the power of the party to produce. Powers v. Hatter, 152 Ala. 637, 44 So. 859. This question of secondary evidence, and the phrase "copy of a copy," are treated in 2 Wigmore on Evidence, §§ 1274-1275. And Mr. Greenleaf, in his work on Evidence (vol. 1, § 83), said:

"All rules of evidence are adopted for practical purposes in the administration of justice, and must be so applied as to promote the ends for which they were designed."

The above citation from Mr. Wigmore will disclose that the rule against what is termed "a mediate copy" is merely in the nature of a rule of preference.

In the instant case the point is made that the bill of exceptions should have been used, rather than the record presented in this court. The record as required by law, was certified to be true and correct by a sworn officer of the court, and was submitted to this court as correct. There is in it no indication or intimation that its correctness has ever been questioned, nor that the copies were incorrect. We are of the opinion that the certified transcript submitted in this court was, under the evidence, on an equality with the bill of...