St. Louis Southwestern Railway Company v. White Sewing Machine Company

• Decision Date: 17 February 1906
• Citation: 93 S.W. 58,78 Ark. 1
• Parties: ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. WHITE SEWING MACHINE COMPANY
• Court: Arkansas Supreme Court

93 S.W. 58

78 Ark. 1

ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. WHITE SEWING MACHINE COMPANY

Supreme Court of Arkansas

February 17, 1906

Appeal from Pulaski Circuit Court; Edward W. Winfield, Judge affirmed.

Affirmed.

S. H West and Bridges & Wooldridge, for appellant.

1. Books and records are legal evidence only when the entries are made by the person whose duty it was to have made them. Greenleaf on Ev. § 117. The entries must be shown to have been correct, and made contemporaneously with the facts recorded. 66 Ark. 316; 60 Ark. 333. In the face of positive testimony that the message was not received by defendant company, and lack of legal evidence that it ever left the office of the "Big Four Railroad," plaintiff can not recover. 57 Ark. 461.

2. Plaintiff should not be permitted to recover without proof of the insolvency of the consignee at the time it attempted to stop the goods in transit. 26 Am. & Eng. Enc. Law (2 Ed.) 1084.

J. H. Harrod, for appellee.

OPINION

MCCULLOCH, J.

This is an action brought by the White Sewing Machine Company, a foreign corporation doing business at Cleveland, Ohio, against the St. Louis Southwestern Railway Company to recover, by way of damages, the price of a lot of sewing machines shipped over defendant's road to a firm of merchants at Buffalo, Texas. It is alleged that the consignees became insolvent, and that the plaintiff, in exercise of its right to stop the goods in transit, notified the defendant, while it had the machines in its possession, to hold them subject to their (plaintiff's) order, but that the defendant negligently failed to comply with the instruction, and delivered the machines to the insolvent consignees, to the damage of the plaintiff in the sum of the price of the machines.

The facts are that the machines were shipped from Cleveland, Ohio, over the Cleveland, Cincinnati, Chicago & St. Louis Railway Company, commonly designated in the testimony as the "Big Four Railroad." That company executed a through bill of lading to the point of destination, Buffalo, Texas. The Big Four Railroad operated from Cleveland, Ohio, to Cairo, Illinois, and the machines were transported by it to the latter point, whence they were conveyed by transfer steamer across the Mississippi River and delivered to the defendant company at Bird's Point, Mo.; that place being about six miles distant from Cairo, where the office of the Big Four Railroad was located. Whilst the machines were in custody of the defendant at Bird's Point, the plaintiff notified the Big Four Railroad to hold the machines and not to deliver them to the consignee. It is claimed that this notice was communicated by telegraph from the office of the Big Four at Cairo to the agents of defendant at Bird's Point. This is denied by defendant, and the case turns upon this question alone. The court submitted the question to the jury upon proper instructions, and the jury found in favor of the plaintiff on the issue.

It is contended by the defendant that there is no evidence at all that the notice was ever communicated to or received by it, and that the court should have given a peremptory instruction to return a verdict in favor of the defendant.

All of the agents and employees of defendant in the Bird's Point office who could have received the notice or known of its receipt, if it had been sent, testified that no such message or notice was ever received; and the question whether or not there was any evidence tending to show the communication of the notice depends upon a construction of the testimony of witness R. H. York, who was a telegraph operator in the Big Four office at Cairo.

A telegraph message was, at the time of the taking of proof in the case, found on file in the Big Four office at Cairo, purporting to give directions from the freight agent of that company at Cairo to the agent of defendant company at Bird's Point, to hold the freight shipment in question for further instructions. The original message is shown to be in the handwriting of Browning, a clerk in the Big Four office, who testified that he wrote the message on the date it purports to have been sent out. The service marks on the message, "E. M.," indicating the sending operator, and "B. D.," indicating the receiving operator, are proved to be in the handwriting of York. York testified that the marks were in his handwriting, but that the fact that they were written in ink and apparently with his right hand indicated that he did not send the message. He testified positively that he did not send the message himself. His deposition, taken sometime before the date of the trial, was read in evidence by the plaintiff, and contained the following statement: "A message (referring to the message in question) was sent to H. A. Williamson at Bird's Point on that day, but was not sent by me. The service marks are in my handwriting, but telegram was sent by operator E. M., whose name I do not recall. I would not have written the service marks on message until I knew that message had been transmitted and was received O. K." At the trial of the cause the defendant introduced York as a witness, and he again testified concerning the service marks, that he did not send the message himself, and did not know which operator in the office sent it. He stated, however, that "every indication is on the message to show that it was sent," and that "I must have had some knowledge of the transmission of the message, or I would not have put it (the service mark) there."

Was this sufficient evidence to go to the jury that the message was sent to and received by appellant's agent at Bird's Point, to whom it was directed? No objection was made as to the competency of the statements, the only question being as to its sufficiency.

Learned counsel for appellant contend that the service marks were inadmissible, as well as insufficient, as evidence of the transmission of the message, because, according to customs prevailing in the telegraphic offices, they should have been made by the operator who sent the message, and whose duty it was to note the service marks upon it. They cite authority, perhaps sustaining their contention, to the effect that where original entries upon shop books and the like are sought to be introduced as evidence, the entries must be shown to have been made by the person whose duty it was to make them--that such entries are not, of themselves admissible as evidence of the facts recited. I...