Wooten v. Mobile & Ohio Railroad Co.

• Citation: 42 So. 131,89 Miss. 322
• Parties: JOHN W. WOOTEN v. MOBILE & OHIO RAILROAD COMPANY
• Decision Date: 22 October 1906
• Court: United States State Supreme Court of Mississippi

42 So. 131

89 Miss. 322

JOHN W. WOOTEN v. MOBILE & OHIO RAILROAD COMPANY

Supreme Court of Mississippi

October 22, 1906

November 1906

FROM the circuit court of Noxubee county, HON. ROBERT F. COCHRAN Judge.

Wooten the appellant, was plaintiff in the court below; the railroad company, the appellee, was defendant there. From a judgment in defendant's favor, predicated of a peremptory instruction, the plaintiff appealed to the supreme court.

The suit, begun in the court of a justice of the peace, was for damages alleged to have resulted from unnecessary delay in the transportation of cattle, the mistreatment of the animals, and overcharges for grain fed to them while in transit.

The case having been appealed to the circuit court, on the trial there it was shown that the appellee company accepted from the appellant, at Brooksville, Mississippi, on its line of railway, a carload of cattle for shipment via Meridian Mississippi, to New Orleans, Louisiana. The appellee, as initial carrier, in compliance with the contract of shipment delivered the car of cattle, at Meridian, to a connecting carrier, the New Orleans & Northeastern Railroad Company, which transported the cattle from Meridian to New Orleans, and delivered them to the New Orleans Belt Line Railroad Company, and the Belt Line Company carried them to destination, the city stock yards.

Appellant testified that he loaded the cattle at Brooksville at eleven o'clock P. M. on October 14, tying them securely in the car for safety in transportation, but did not see them from the time they were placed in the car at Brooksville until eight o'clock A. M. on October 16th, when in the possession of the Belt Line Railroad Company at the stock yards in New Orleans; he then discovered that some of the cattle had been injured since he saw them at Brooksville, and they died shortly afterwards. Appellant further testified, from his experience with former shipments over the same route, that the car should have reached New Orleans in thirty hours after leaving Brooksville; but the one in question was delayed a few hours beyond that time and because thereof he had been forced to pay unnecessary stock feed bills which, however, were presented, not by appellee, but by the New Orleans & Northeastern Railroad Company, and were voluntarily paid by plaintiff.

The appellee showed that there was no delay in the transportation of the cattle from Brooksville to Meridian or in their delivery to the connecting carrier. Over the objection of appellant, appellee was allowed to introduce in evidence the interchange records kept by it in its Meridian office which showed that the car was, upon its arrival at Meridian, promptly placed on appellee's interchange track and billing therefor delivered to the connecting carrier. Appellee's chief clerk at its Meridian office, as a witness over objections of appellant, testified that if anything wrong existed at the time the car was interchanged the appellee's records would have shown it; that the entries on the record in regard to the car were made at the time of the transaction by another, appellee's interchange clerk, who was not at the time of the trial in the service of appellee, but was absent from the state; and that witness knew nothing about the car save what he learned from the records; and the records had always been accepted by both carriers as correct. Appellee, over objection of appellant, also introduced as a witness in its behalf the yardmaster of the Orleans & Northeastern Railroad Company, who, from the interchange records of his company, testified that the cattle were received on schedule time and in good condition from appellee at Meridian and promptly shipped to New Orleans. This witness did not keep the books, and had no personal knowledge of the facts disclosed by their entries; nevertheless, the entries were read to the jury.

Affirmed.

J. E. Rives, for appellant.

It was error for the trial court to allow the appellee to introduce in evidence its interchange records showing its interchange of cars with the New Orleans & Northeastern Railroad Company at Meridian. And it was error to allow the head clerk of appellee's Meridian office to testify about the contents of the records. He did not make the entries thereon nor see them made. His only testimony to establish their accuracy was to say that he had never heard their correctness disputed by either appellee or the connecting carrier.

This court has never allowed a witness to testify to the contents of his own books if they are in existence. The books must speak for themselves; and even then not until after proof that they were correctly kept and the entries made in usual course of business at the time the recorded facts transpired. Bookout v. Shannon, 59 Miss. 378; Chicago, etc., Railroad Company v. Provine, 61 Miss. 288. Yet, in this case, the lower court permitted a clerk of appellee, upon the introduction of records kept by another clerk, to testify therefrom about things of which the witness was in total ignorance.

Even if, by some reasoning or authority unknown to us, it be held that the records were admissible because kept by the appellee, certainly they should not have been admitted in evidence until their authenticity was supported by the testimony of the absent interchange clerk, who had made the entries and who kept the books. Briggs v. Rafferty, 14 Gray (Mass.), 525. It will be noted that appellee never attempted to account for the absence of this interchange clerk.

The trial court further erred in allowing the appellee to introduce in evidence through its witness, the yardmaster of the New Orleans & Northeastern...