Woody v. Carolina Spruce Co.

• Decision Date: 15 May 1918
• Docket Number: 511.
• Citation: 95 S.E. 905,175 N.C. 545
• Parties: WOODY v. CAROLINA SPRUCE CO.
• Court: North Carolina Supreme Court

95 S.E. 905

175 N.C. 545

WOODY v. CAROLINA SPRUCE CO.

No. 511.

Supreme Court of North Carolina

May 15, 1918

Appeal from Superior Court, Yancey County; Ferguson, Judge.

Action by G. B. Woody against the Carolina Spruce Company. Judgment on verdict for plaintiff, and defendant appeals. New trial granted.

To warrant admission of testimony of contents of lost letter there must be proof of the handwriting, or other evidence of genuineness.

The plaintiff sought to recover damages for an injury to his arm while he was in the service of the defendant, and under the treatment of its surgeon, as plaintiff alleged. Defendant denied that the surgeon had been employed by it. In order to prove his allegation that the surgeon was employed by defendant, plaintiff introduced a letter which, he alleged was signed by C. S. Aldrich, president and general manager of defendant, and received by Milt Dellinger, one of defendant's employés, who testified that it had been destroyed, and that he thought C. S. Aldrich's name was at the bottom of it, but he was not sure. It came to him in the mail. The letter stated that, "if we (employés) did not pay the doctor's bill, we had to leave the job." It was written on a letter head of the Carolina Spruce Company; its name at the top and C. S. Aldrich at the bottom. Dr. C. S. Aldrich testified that he did not write such a letter, or authorize any one else to write it, and it was not his letter, and that Dr. Smith was not employed by the company, or connected with it, and that he never discharged any employé for failure to pay a doctor's fee, nor authorized any one to do so. The relevancy of this letter as evidence, if it is competent, will appear by the statement that plaintiff claimed that Dr. Smith was defendant's surgeon, and, as such, attended him when his arm was broken and negligently failed to treat it properly or with reasonable surgical skill; while defendant alleged that Dr Smith had not been so employed by it, and was not its surgeon, but that he was the surgeon of the employés only who paid him by the month; the defendant, by consent of the parties, merely having agreed to retain the amount due by the employés from their wages and pay it to the doctor for them, and that the defendant had no other interest in the matter.

The court admitted the letter, and defendant excepted. There was another exception, which is stated in the opinion of the court. Verdict assessing damages for the plaintiff at $3,500, and from the judgment thereon the defendant appealed.

Pless & Winborne, of Marion, for appellant.

G. E. Gardner, of Burnsville, and Hudgins, Watson & Watson, of Marion, for appellee.

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

It is perfectly evident from a reading of the case that the witness Milt Dellinger did not know who had written the letter except by his inference from what he saw on its face, which he imperfectly and doubtfully recalled; the letter having been lost or destroyed. What he stated that he saw was not sufficient to authenticate the letter, or to fix the defendant, through its president, as the author of it. The general rule as to the proof of the genuineness of a letter or telegram, and its admissibility as evidence, is thus stated in 25 Ency. of Law, at page 876:

"Ordinarily, the general rule of law relative to the admission of letters in evidence apply to telegrams. A telegram is not admissible as evidence in the absence of proof of the handwriting, where the original message is offered, or of other evidence of its genuineness."

This statement of the law is approved in Reynolds v. Hinrichs, 16 S.D. 602, 94 N.W. 694, which cites Burt v. Winona, etc., R. Co., 31 Minn. 472, 18 N.W. 285, 289. To the same effect is Adams v. M. Lumber Co., 32 Minn. 216, 19 N.W. 735. It is held in those cases that a letter or telegram does not necessarily prove itself, and that there must be some evidence of the handwriting of the person whose name is signed to it, or some other proof of his signature to the letter, or of his authority for the sending of it, or other proof of its genuineness, and that without such proof there is nothing to show that it was not the act of a stranger. Any other rule might open wide the door to fraud and imposition. Lockhart on Evidence says, at section 96:

"Before letters are admissible in evidence there must be some proof that they are genuine. They may be identified by the writer, the handwriting of the writer may be proved, etc., but some satisfactory proof of their authenticity is absolutely essential," citing McLeod v. Bullard, 84 N.C. 515; Michael v. Foil, 100 N.C. 178, 6 S.E. 264, 6 Am. St. Rep. 577; Rencher v. Aycock, 104 N.C. 144, 10 S.E. 132; Trust Co. v Benbow, 135 N.C. 303, 47 S.E. 435; Edwards v. Erwin, 148 N.C. 429, 62 S.E. 545, 16 Ann. Cas. 393.

We held in Tyson v. Joyner, 139 N.C. 69, 51 S.E. 803, that the introduction of a note, with the name of a party indorsed on it, is no evidence, by itself, that he indorsed it, which was approved in Bank v. Drug Co., 152 N.C. 142, 67 S.E. 253, 50 L. R. A. (N. S.) 581, 136 Am. St. Rep. 821; Worth Co. v. Feed Co., 172 N.C. 342, 90 S.E. 295; Midgette v. Basnight, 173 N.C. 18, 91 S.E. 353; Moon v. Simpson, 170 N.C. 335, 87 S.E. 118. There must be proof of the handwriting, or other evidence of its genuineness. It was not shown here that the letter in question was part of a correspondence between Dellinger and Aldrich, or that it was a reply to a letter from Dellinger nor is there any circumstance of sufficient probative force shown to make even a prima facie case of its authenticity. It was just assumed that Aldrich sent it, because his name was subscribed to it, which he testified was not his signature, and there is other evidence...