Wiseman v. Northern P. R. Co.

• Decision Date: 31 March 1891
• Parties: WISEMAN v. NORTHERN PAC. R. CO.
• Court: Oregon Supreme Court

26 P. 272

20 Or. 425

WISEMAN v. NORTHERN PAC. R. CO.

Supreme Court of Oregon

March 31, 1891

Appeal from circuit court, Multnomah county; E.D. SHATTUCK, Judge.

On March 19, 1890, the plaintiff, J.J. Wiseman, commenced an action in the circuit court of the state of Oregon for the county of Multnomah against the defendant, to recover the sum of $398.72, the value of certain household goods claimed to have been lost by defendant in transit. The complaint alleges that on or about the 8th day of April, 1889, at Nunica Mich., the plaintiff delivered to the Detroit, Grand Haven &amp Milwaukee Railway Company a shipment of six boxes, one trunk one roll of carpet, and two barrels containing household goods, the property of the plaintiff, for transportation to Salem, Or.; that said shipment was in due time delivered in good order to the defendant as a connecting carrier; and that one of said boxes and one of said barrels, with their entire contents, were destroyed, and never delivered to plaintiff which household goods so destroyed were of the value of $373.05. The defendant, in its answer to the complaint, admits the shipment by plaintiff, and the delivery to the Detroit, Grant Haven & Milwaukee Railway Company, of the household goods in question, and that the same was in due time received by defendant from the Detroit, Grand Haven & Milwaukee Railway Company, a connecting carrier; admits that one of the boxes and one of the barrels, with the contents, were destroyed, but denies any knowledge as to the contents or value thereof. For a further and separate answer and defense, defendant alleged that the shipment of freight mentioned in the complaint consisted of household goods, and that the same was shipped by plaintiff, and received and accepted by the Detroit, Grand Haven & Milwaukee Railway Company, as well as the defendant a connecting line, under a contract with plaintiff that, if for any cause there should be a total loss of said freight, and a liability on the part of the common carrier receiving the same, or over whose line the same was being or was transported, the total liability therefor, if any there should be, would be the sum of five dollars per hundred pounds weight of said freight, and the same was received and accepted by defendant and shipped by plaintiff on said condition. The defendant, further answering, and as a separate defense, alleged that at the date of shipment by plaintiff, to-wit, April 8, 1889, in order to obtain the benefit of the reduced rate of freight charges from the ordinary tariff rate charged therefor, the plaintiff and the Detroit, Grand Haven & Milwaukee Railway Company contracted and agreed in writing that, in consideration of such reduced rates, the plaintiff, in case of any damage or loss to said goods arising by damage by fire while at stations or in transit, would and did release said company, and each and every other company over whose lines said goods might pass to destination, from any and all damage occurring to said goods; that said plaintiff was given and obtained the benefit of said reduced rates, and executed said contract of release accordingly. The reply denies the new matter alleged in the answer. On the trial the plaintiff gave evidence tending to prove the issues on his part, and then rested. Defendant then gave evidence tending to prove the execution by plaintiff of the release and contract mentioned in the answer; that it was executed in duplicate, one copy being attached to the bill of lading, and the other was by the agent of the Detroit, Grand Haven & Milwaukee Railway, at Nunica, Mich., forwarded to the traffic manager of that road, at Chicago, Ill. Defendant then called Alfred Watts, who was then clerk of the Northern Pacific Railroad, at Portland, Or., who testified that he was clerk in the office of Mr. Fulton, general freight agent of the defendant at Portland; that he had telegraphed to the claim agent of the defendant at St. Paul to ascertain if a release had been made on the plaintiff's shipment of goods from Nunica, and, if so, to send the original release that was signed by Mr. Wiseman; that the claim agent at St. Paul telegraphed back that the files in the office of the traffic manager at Chicago had been searched, and the release could not be found; that the release never was in his office at Portland, and the parties who handled the way-bill of plaintiff's goods said there was no release attached to it when it reached its destination. The defendant then offered the deposition of the agent at Nunica to prove the contents of the release, but the court refused to admit secondary evidence of its contents, to which ruling defendant duly excepted, and assigns the same as error on this appeal.

(Syllabus by the Court.)

Secondary evidence of the contents of a writing is admitted on the theory that the original writing cannot be produced by the party by whom the evidence is offered, within a reasonable time, by the exercise of reasonable diligence.

No precise rule can be laid down as to what shall be considered a reasonable effort, but the party alleging the loss or destruction of the document is expected to show that he has in good faith exhausted in a reasonable degree all the sources of information and means of discovery which the nature of the case would naturally suggest, and which are accessible to him.

The degree of diligence which shall be considered necessary in any case will depend on the circumstances of the particular case, the character and importance of the paper, the purposes for which it is proposed to use it, and the place where a paper of that kind may naturally be supposed to be found.

Where the cause of action or defense is founded upon an alleged writing, and both the execution and contents of the writing are denied, and the alleged writing is shown to be in the possession of a person residing outside of the state, secondary evidence of its contents is not admissible, unless a proper effort is made to obtain the original.

Dolph, Bellinger, Mallory & Simon, for appellant.

J.N. Teal and Sanderson Reed, for respondent.

BEAN, J., (after stating the facts as above.)

By section 691, Hill's Code, it is provided that "there shall be no evidence of the contents of a writing, other than the writing itself, except in the following cases: *** (2) When the original cannot be produced by the party by whom the evidence is offered, in a reasonable time, with proper diligence, and its absence is not owing to his neglect or default." This section is a declaration of the common-law rule. The theory upon which secondary evidence of the contents of a writing is admitted is...