S. J. Vidger Company v. Great Northern Railway Company
| Decision Date | 22 May 1906 |
| Citation | 107 N.W. 1083,15 N.D. 501 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass county; Pollock, J.
Action by the S. J. Vidger Company against the Great Northern Railway Company. Judgment for plaintiff and defendant appeals.
Affirmed.
Murphy & Duggan, for appellant.
Party offering secondary evidence must show that better cannot be produced. McManus v. Commow et al., 10 N.D. 340 344, 87 N.W. 8; Wigmore on Evidence, sections 1201, 1202; Bell v. Chandler, 23 Ga. 356; McCollister v Yard et al., 57 N.W. 447; Darrow v. Pierce, 51 N.W. 813; Dade v. Aetna Ins. Co., 56 N.W. 48; Tanner v. Page, 63 N.W. 993.
Notice to produce must be definite, and leave no doubt as to the instrument sought. France v. Lucy, Ryan & M., 341; Parish et al. v. Weed Sewing M. Co., 7 S.E. 138; Field v. Zemansky, 9 Ill.App. 479; Forsyth Comm'rs v. Lemly, 85 N.C. 341; Julius King Optical Co. v. Treat, 40 N.W. 912; Armstine et al v. Treat, 39 N.W. 749; Rose v. King, 5 S. & R. 241; Greenleaf on Ev., section 563.
A witness who attempts to authenticate a copy must have read the original. Edistos Phos. Co. v. Stanford, 20 So 613; Hooper v. Chism, 13 Ark. 496, 501; Edwards v. Noyes et al., 65 N.Y. 126; Nichols v. Kingdom Iron Ore Co., 56 N.Y. 618; Propst v. Mathis, 20 S.E. 710; Coxe v. England, 65 Pa. 212, 222; Johnson v. Bolton, 43 Vt. 303; Nostrum v. Halliday, 58 N.W. 429; McGinness v. Sawyer, 63 Pa. 266.
That a notation is similar to the one on the original is insufficient. Keyser v. K. C. St. J. & C. B. R. Co., 9 N.W. 133, Id. 338; Pevcke et al. v. Shinn, 94 N.W. 135; In re Gazett, 29 N.W. 347.
H. F. Miller, for respondent.
In shipping freight it will be presumed that the custom of proving loss has been followed. 1 Elliott on Ev., section 64.
The sufficiency of preliminary proof to admit secondary evidence rests largely in the discretion of the court. Cooley v. Collins, 71 N.E. 979; Elliott on Ev., 689; State v. Salverson, 91 N.W. 1; 2 Elliott on Ev., section 1456. Where a document is essential as a link in the opponent's case, notice to him to produce is not a necessary preliminary to offer of secondary evidence. Nichols & Shepard v. Charlebois et al., 10 N.D. 446, 88 N.W. 80, 84.
Entries in books of bank are competent evidence, though persons making them are dead, out of the state or have no recollection. 1 Elliott on Evidence, section 465.
The plaintiff brought this action to recover $ 187 for damages alleged to have been caused by defendant's negligence in transporting 139 barrels of apples from Osnabrock to Hannah, in December, 1902. The complaint alleges in substance that the apples were sound and in good condition when shipped, and were of the value of $ 443; that in consequence of the defendant's negligence they were frozen and 11 barrels of them were broken open and the apples scattered over the car floor, by reason of which they were so injured that they were of no greater value than $ 256, and prayed judgment for $ 187. The jury returned a verdict for $ 86.15. Defendant moved for a new trial upon a statement of case, which motion was denied, and judgment was entered upon the verdict. This appeal is from the judgment
The assignment of error chiefly relied upon relates to the admission in evidence over defendant's objection of Exhibit C, which is a page from what the plaintiff calls its "claimbook." The evidence shows that this book was kept by one Charles Barton. The page in question contains a statement of plaintiff's claim against the defendant showing the number of barrels shipped to Hannah, the alleged value of the same, date of shipment, and a statement of their value when they arrived, or rather the amount for which they were sold, and the amount of the loss, $ 187, all as alleged in the complaint. It also contains the following memorandum: The defendant's objection goes to that part of the exhibit which relates to the condition of the apples, viz: the so-called agent's notation: Counsel for the appellant contend that this is purely a self-serving statement, and was therefore inadmissible. We fully agree with this contention. The plaintiff's theory is that the language above quoted is a copy of an entry made by the defendant's agent at Hannah upon the freight receipt, and that for reasons we need not consider, secondary evidence of the agent's admission was admissible. An insuperable objection to this theory is that there is no evidence to identify it as a copy. Barton who made the entry in the claimbook was not called as a witness, and the witness who produced the book testified that she knew there was a notation on the freight bill, but could not state from her own knowledge that the alleged copy in Exhibit C was a true copy. She testified that she did not remember seeing what was written on it, referring to the freight receipt. Under these circumstances, if it be conceded that a sufficient foundation was laid for the introduction of secondary evidence of the agent's admission still this alleged copy was not admissible, for there was a total failure to identify it as a true copy. We are of opinion, however, that the error was not material for the record shows that the facts stated in this exhibit and purporting to be the agent's statement in reference to the condition of the apples, and to which objection is made, was established at the trial by undisputed evidence. It appears that the car was billed to McAllen Bros. at Osnabrock, from Dundee, N.Y. Upon its arrival, W. J. McAllen, pursuant to a previous purchase, took 50 barrels from the car for his firm, and also, and at plaintiff's request, delivered 30 barrels more to other purchasers. He then under plaintiff's direction rebilled the car with the remaining 139 barrels to W. J. Farris at Hannah, who had agreed to take 80 barrels at $ 3.35 per barrel. On account of their condition Farris refused to accept them, and the defendant's agent stored them in the depot at Hannah. Plaintiff at once sent its agent, George Vidger, to Hannah, and the apples were examined by him, by Farris, and by Bolton, defendant's agent, and also by one Hart, a drayman, each of...
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