I. & G. N. R'y Co. v. Blanton, Nunnally & Co. , 63 Tex. 109 ( 1885 )

Delany, J. Com. App.

The first, second and third assignments of error may be considered together. They complain of the ruling of the court in admitting in evidence Exhibit “A,” and the depositions of the witnesses Willis and Zeigler.

The exhibit was not introduced because it was supposed to be competent evidence, by itself alone, of any particular fact. The plaintiffs did not propose to show by the exhibit either that the cotton had come to the hands of the defendant or that it had been damaged. These facts they proved by appropriate testimony.

They proved by the bills of lading that the defendant had received the cotton.

They proved by the witnesses P. J. Willis and Zeigler that when the cotton came to the hands of the consignees a considerable part of it was damaged.

These facts they well understood from their personal knowledge; they had received the cotton from the defendant’s cars; had seen the damaged bales rejected by the public weigher. They had removed these damaged bales to the pickery belonging to the firm, where, under their supervision, the bales were opened, the damaged cotton removed, and the sound cotton re-baled. They then caused it to be taken to the public weigher, where they saw it re-weighed, the difference in the weight indicating the loss on each bale.

Certainly they were competent witnesses to prove these facts. But, as no man could possibly retain in his memory all the infinite details of a business like this, the firm require all these minutiae to be reduced to writing by a yard clerk (in this case the witness Zeigler) and returned into the office, where they are copied into a book and thus preserved in a permanent form.

A copy from this book does not of itself prove the facts recorded there; but it enables the witness who has transacted the business to recall all the details of the transaction. And it is not necessary that the witness should himself have made the entries in the book, if he knows from the general course of the business that the books are correctly kept.

“It does not seem necessary,” says Greenleaf, “that the writing should have been made by the witness himself, nor that it should be an original writing, provided, after inspecting it, he can speak to the facts from his own recollection.” 1 Greenl. on Ev., sec. 436.

Note 2, to the same section, is as follows: “In all cases where accounts are multitudinous, the rule as to personal knowledge is relaxed. He (the witness) must be permitted to put the items into an account, and to refresh his recollection by means of other accounts and papers as to the items. In a long account of sales a party rarely recollects all the items, but he can be perfectly certain from his mode of business, on finding the entries in his books, that the charges were correctly made.” '

In our opinion the evidence was admissible; and it was not necessary, as the case is here presented, to call the clerk who recorded the items in the book, to prove that he had correctly recorded them as they were transmitted to him by the witness Zeigler.

In the second assignment objection is made to the testimony of the witness Willis on the further ground that he did not “ pretend to know -when or how, or in whose possession, the cotton was damaged.” Nor was he introduced to prove any of these facts, but simply .to show the condition of the cotton when he received it.

The fourth and fifth assignments need not be noticed. The sixth is as follows:

“The court erred in not charging the jury that the proof must show, beyond doubt, that the cotton was damaged while in the possession and under the control of the defendant before the plaintiffs could recover.”

This is the substance of the charge asked by the defendant, but not given.

The court, among other charges, gave the following:

“ You are further instructed that if the defendant gave its receipt for the cotton, stating therein that it was not in bad order, the presumption arises that it was in good condition when shipped or received for shipment. And if the same arrived in the city of Galveston in a damaged condition, the presumption arises that the said cotton suffered the injury while in the hands of the company; and, prima facie, the defendant is liable for the lessened value of said cotton by reason of said injury.”

This charge, we think, presented the correct view of the case.

Counsel for appellant, however, seem to suppose that the plaintiffs ought to have proven, by evidence other than the bill of lading, that the cotton was not damaged when the defendant received it.

In this we cannot agree with them, and, as the defendant offered no evidence of the condition of the cotton at the date of the bill of lading, it does not become necessary for us to pursue the subject further.

The judgment should be affirmed.

Affirmed.

[Opinion adopted January 23, 1885.]