Southern Ry. Co. v. Mooresville Cotton Mills

• Court: U.S. Court of Appeals — Fourth Circuit
• Citation: Southern Ry. Co. v. Mooresville Cotton Mills, 187 F. 72 (4th Cir. 1911)
• Decision Date: 07 February 1911
• Docket Number: 992,998.
• Parties: SOUTHERN RY. CO. v. MOORESVILLE COTTON MILLS. MOORESVILLE COTTON MILLS v. SOUTHERN RY. CO.

187 F. 72

SOUTHERN RY. CO. v. MOORESVILLE COTTON MILLS.

MOORESVILLE COTTON MILLS v. SOUTHERN RY. CO.

Nos. 992, 998.

United States Court of Appeals, Fourth Circuit.

February 7, 1911

Rehearing Denied May 2, 1911.

This is an action instituted in the state court and removed therefrom to the United States Circuit Court for the Western District of North Carolina by an order of the state court upon petition of the defendant below. Among other things, in the fifth paragraph of the complaint, it is alleged:

'That at the time of said shipment from Denver, Colo., said machinery was correctly weighed and placed in cars for shipment; that the freight for said shipment as stated on bills of lading was demanded of the plaintiff by the defendant upon delivery of said shipment at Mooresville N.C., and paid by the plaintiff; that the defendant overcharged the plaintiff in freight the amount of $1,775.40, which said amount was claimed by the defendant as an additional charge for overweight as they claimed that the said amount of overcharge was unjust and not due the defendant, and the plaintiff paid the same under protest, but was compelled to pay the same in order to get possession of said shipment; that the defendant is thus indebted to the plaintiff upon this count for overcharge in freight in the sum of $1,775.40, and interest on the same at the rate of 6 per centum per annum from the 1st day of March, 1907, until paid.'

There were 61 cars of second-handed machinery shipped, and it was agreed that the plaintiff was to pay so much per hundred pounds on these shipments. The defendant in error (for the purpose of showing that the amounts sought to be collected were based upon weights that were incorrect) offered in evidence the weights of certain of the cars alleged to have been weighed by one of the employes of the initial carrier the Colorado & Southern Railroad. The agent or employe of the Colorado & Southern, who it is alleged weighed the cars, was not a witness in the case, nor was the original book of entries produced. The number, initial, and weight of each respective car was sent to Denver on a memorandum with other weights which the defendant in error alleged were proper and correct, and it is upon this basis that the defendant in error bases its claim of overcharge in freight rate thereon. The witness, among other things, testified that he did not see the cars weighed, did not weigh any of them, and saw no entries made on the books of the weigher, and, in fact, knew nothing about it other than what appeared in Exhibit F, made by another, and as to which he was permitted to testify.

There was a judgment entered in favor of the plaintiff below for the sum of $750, with interest from the 18th day of October, 1909, and the case is now here on a writ of error.

L. C. Caldwell, for Southern Ry. Co.

Zeb V. Turlington and Geo. B. Nicholson (R. B. McLaughlin, on the brief), for Mooresville Cotton Mills.

Before PRITCHARD, Circuit Judge, and McDOWELL and ROSE, District judges.

PRITCHARD Circuit Judge (after stating the facts as above).

The question presented for our consideration is as to whether it was competent for the witness Adams to testify as to the correctness of the statements contained in the paper which was attached to his deposition and marked Exhibit F, and which purported to contain the weights of the cars at the time they were loaded for shipment. In other words, did the witness testify as to facts that were within his own knowledge, or did his testimony depend upon information received from another? The determination of the questions involved in this case depends entirely upon the proper answer to this inquiry.

It appears from the statement of facts that the plaintiff transmitted a list of the cars shipped over the initial carrier, from Denver, to H. A. Johnson, chief clerk of the general freight office of the Colorado & Southern Railroad, and that in reply thereto he wrote the following letter:

'Your letter of April 23d attaching list of cars shipped over our line from Denver. I return you your memorandum and have noted on same weights of these cars as arrived at over our scales at Denver.'

This letter, together with the weights of the cars, were offered in evidence, and the same were identified by the witness. The substance of the testimony of the witness was that he wrote the letter in question; but it should be borne in mind that there is no statement in this letter that the weights are correct. On cross-examination the witness testified that he did not prepare the paper designated 'Exhibit F,' that he did not weigh the cars personally, and that he did not inspect any of the scales on which these cars were weighed. In other words, it clearly appears from the testimony of the witness that the cars were weighed by another, and that he was not present at the time they were weighed, and all he knew was that which appeared upon the slips of papers furnished him by the person in charge of the records of weight. No one had testified as to what occurred at the time the cars were weighed.

The evidence of the party who weighed the cars could have been procured by the same means employed in securing the evidence of witness Adams, to wit, by deposition; but for some reason the plaintiff failed to avail itself of this testimony.

It is insisted by counsel for plaintiff that, where an unimpeached witness swears to a fact of his own knowledge, 'it must be taken that he had competent means of information and knowledge, unless the contrary appears. ' This proposition is undoubtedly correct; but such is not the state of facts before us. It should be borne in mind that the witness testified that he did not prepare the statement and that he was not present when the cars were weighed. Thus we are informed by the witness that his testimony was not as to facts within his own knowledge, but that his information was derived from a statement made by another in regard to a transaction about which he had no knowledge whatsoever. If, in this instance, the witness had actually weighed the cars and had prepared the statement offered in evidence, he could have referred to the same for the purpose of refreshing his memory as to what actually took place at the time the cars were weighed; but no such state of facts exist, and it cannot therefore be contended that this is a memorandum used for the purpose of refreshing the memory of the witness. If Exhibit F had been eliminated, the witness, according to his own statements, would have been unable to testify as to any material fact connected with the weighing of the cars. In this case the witness on account of information which he had received from another believed that the statements contained in Exhibit F were correct. Evidence of this character is clearly incompetent.

In the case of Jones v. Railroad, 148 N.C. 449, 62 S.E. 521, among other things, the defendant, in order to show the condition of the stock when transferred from one freight conductor to another, on a different part of its system, offered in evidence 'the original record of Conductor E. D. Skinner, handling the shipment of stock from Florence to Wilmington, showing that there was no exception to the condition of the stock at the time of its handling. ' This evidence was excluded by the court below, and the Supreme Court of the state in passing upon this phase of the question said:

'We have held that a record containing entries made in the usual course of business on the train sheets by the witness (a train dispatcher) from reports telegraphed to him by station agents as to the arrival and departure of trains is admissible for the purpose of showing the position of a train at a certain time. Insurance Company v. Railroad, 138 N.C. 42, 50 S.E. 452, 107 Am.St.Rep. 517. The evidence offered by defendant is far from coming within the principle of that decision. The record was made in that case by the witness himself, who was under oath and subject to cross-examination, and the witness identified it as the record made by him, showing the movement of trains. The report of the case shows that 'the record was offered by defendant in corroboration of witness Hunt, and the court admitted it for that purpose, so instructing the jury.'

'Waiving the confusion in the record as to the identification by proof of this 'original record,' it is certain that the defendant did not offer Conductor Skinner to prove the condition of the animals on his run, and then offer his train record of that run for the purpose of corroborating his evidence.

'It has been held by the Supreme Court of Massachusetts that train dispatchers' records, properly identified, are competent evidence to show the location of a train at a given time; but an examination of the case shows that 'entries from the train sheet, with the testimony of the person who made them, were admitted to show that outward trains passed' at certain hours. Donovan v. Railroad, 158 Mass. 450, 33 N.E. 583.

'These decisions rest upon the idea that as telegraphic messages are read by sound, as well as automatically recorded in symbols, such entries stand upon the same footing as if made from oral statements uttered at the sending station and audible in the dispatcher's office. These cases, for that reason, are to be distinguished from those holding that entries by a servant on his master's books for goods sold are incompetent, unless the servant is called to support the charges and prove the delivery. Miller v. Shay, 145 Mass. 162, 13 N.E. 468, 1 Am.St.Rep. 449.

'There is nothing in the record of a train run or the logbook of a ship which takes the case from the general rule that the entries must be identified, and when so identified they are competent evidence in

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