Lancaster v. Norris

CONNER, C. J. This suit was instituted by appellee to recover damages to a car load of vegetables, consisting of 75 crates of celery, 100 crates of lettuce, 10 sacks of carrots, 75 crates of cauliflower, and 8 boxes of rhubarb, alleged to have been sold by the California Vegetable Union of Nadeau, Cal., to Norris-Mitchell Company, wholesale dealers in such commodities in Fort Worth, Tex. It was alleged that the sale was made, and that the California (jompany, as we shall hereinafter designate it, on or about the 15th day of April, 1920, delivered to the Atchison, Topeka & Sante FS Railway Company at Nadeau the vegetables in question; that the shipment was transported over several intermediate liens to Sweetwater, Tex., at which point it was delivered to the Texas & Pacific Railway Company, of which appellants J. D. Lancaster and Charles L. Wallace are re [403] ceivers, lor transportation to Fort Worth. It was alleged, in substance, that the vegetables'were delivered in Forth Worth in a greatly damaged condition, and damages were sought in the sum ol $1,542.98, with interest at the rate of 6 per cent. It was alleged that, at the time of the sale and shipment in question, the Norris-Mitehell Company was a corporation which later, in December, 1920, had duly dissolved ; that at the time of and before said dissolution the plaintiff was the president and manager thereof, and as such he sued. It was further alleged, in effect, that the Norris-Mitchell Company was the owner of the cause of action, and that hence plaintiff as such manager or trustee was entitled to sue, or, if mistaken in the allegation that the Norris-Mitchell Company was the owner of the cause of action at the time of the accrual thereof, that the California Company, acting-by its president, had duly executed an assignment of the cause of action' upon which plaintiff also declared. So far as necessary to notice, the defendant pleaded a general denial. The case was tried before a jury and submitted on special issues. The jury found that the shipment of vegetables had been damaged by the appellants in the sum of $942.99, on which verdict the court rendered a judgment in favor of the appellee T. D. Norris against the appellants for said sum, with interest at the rate of 6 per cent, from April 17, 1920. We conclude that the judgment must be reversed because of the error complained of in the third, fourth, and eighth propositions under the sixth, seventh, eighth, ninth, and twelfth assignments of error. For the purpose of proving that the vegetables in question, at the time of their delivery by the California Company to the initial carrier, were in good condition, appellee offered the deposition of one C. L. Fisher, who testified on direct examination that for many years he had béen employed in the capacity of superintendent of the Nadeau packing plant of the California Vegetable Union, and was so employed at the time of the taking of his deposition and that: “There was loaded in this car (the car in which the shipment was made) 75 crates of cauliflower, 75 crates of celery, 100 crates of lettuce, 10 sacks of carrots, and 8 boxes of rhubarb, all of which were in good condition. These vegetables were all sound, in good condition, and of good quality when loaded into the car; the cauliflower was fresh and with green jackets; lettuce was firm to fairly firm, was crisp and green; carrots were medium size, well trimmed, sound and of good quality; rhubarb was of No. 1 quality and in sound fresh condition; celery from the Sacramento river district of California was crisp, well bleached, and fresh, sound and in good condition. The car was completely loaded and ready to move April 5, 1920. The cauliflower in this car was packed in crates, heads up, one layer to the crate; lettuce was packed three layers to the crate, with ice between the layers, heads up; carrots were in sacks; rhubarb packed in crates, 80 pounds to the crate stalks laid flat; celery packed in crates with tops up, 4%, 7 dozen to the crate.’’ The witness further testified to the effect that he had examined or inspected the vegetables in question first while in field crates with tops off and later during the process of packing in the regular shipping crates. To all of the testimony of witness Fisher so given, appellants.objected on the ground that, by the answers of the witness to cross-interrogatories, it appeared that his testimony was based upon records not kept by himself, and hence that the “records are the best evidence of the testimony of the man who made the records.” At the time of the objection, as the bill of exception before us shows, the court’s attention was called to the answer of the witness to the tenth interrogatory, which was later introduced before -the court. The tenth interrogatory and its answer is as follows: “It is true, is it not, Mr. Fisher, that you do not at this time have any personal recollection of having inspected this particular car, but that your testimony is based entirely upon an affidavit that you made before L. <5. Fleisher on September 20, 1920. Answer: It is true that at this time I have no personal recollection of having inspected this particular car; my testimony is not based on affidavit made by me on September 20, 1920, before L. G. Fleisher, but on my records and knowledge generally of the character of vegetables handled, packed, and shipped.” Also the defendant’s cross-interrogatory and answer thereto, which are as follows: “In testifying in answer to any of the direct interrogatories,' have you consulted any records made by you or by any one else? If so, then please state which interrogatories you answered after consulting such records, and state when and by whom such records were made, and attach the originals of all such records to your deposition. If you decline to attach the originals of such records, then please state why you declined, and attach true copies thereof, causing the notary to mark same for identification. Answer: I consulted my records in answering all of the direct interrogatories with the exception of Nos. 1, 2, and 4. These records were made by parties who were working under me at the time. The original records are in general office of the California Vegetable Union; copies of them are attached hereto, which, for identification, are marked “Exhibit A, B, C, D, and E and F.” We do not find the exhibits to which the witness refers in his answer, nor was evidence offered in behalf of appellee tending to show that the records referred to by the witness were correctly kept and entered during the regular course of business, or that the person making the records was deceased, or that his testimony was unobtainable. No other witness testified to the condition of the [404] vegetables when delivered to the initial carrier, and it is evident that the essential tacts as to the condition of the vegetables at the time of the shipment rest upon book entries made by some person or persons other than the witness, for the witness said he had no personal recollection of facts stated by him. The records themselves, therefore, constitute the best evidence of their contents and what facts they prove, and to allow this witness in effect to give a shorthand rendition of such contents would be to violate elementary rules of evidence. In other words, the witness was permitted to give, in substance, the written statements of a person or persons other than himself who had not been produced as a witness, not shown to be deceased, and whose book entries had not even been authenticated. The testimony of Eisher is accordingly hearsay, and it was objected to on this ground also. The facts stated by him should have Éeen proven by the person who made the book entries, if living and available, who, by reason of independent recollection, or from his records used to refresh his memory, could under oath verify the truth of his statements. Or if such person be dead or his testimony unobtainable, then 'the record entries themselves (or competent copies thereof if the originals are unobtainable) would be admissible in proof of statements, therein made, upon its being shown that the records or entries had been' made or entered during the regular course of business by the person whose duty it was to make such entries, and that.his books were generally accurate and well kept. See Greenleaf on Evidence, vol. 1 (15th Ed.) § 115 et seq.; Jones’ Blue Book on Evidence, vol. 3, §§ 518, 571, 575; 22 Corpus Juris, p. 862, § 1034 et seq.; Union Bank v. Knapp, 3 Pick. (Mass.) 96, 15 Am. Dec. 181, and cases cited in note; Fidelity & Deposit Co. v. Texas Land & Mortgage Co., 40 Tex. Civ. App. 489, 90 S. W. 197; St. L. S. W. Ry. Co. v. McLeod (Tex. Civ. App.) 115 S. W. 85; Edwards v. Adams (Tex. Civ. App.) 122 S. W. 898; Cathey v. M. K. & T. Ry. Co. (Tex. Civ. App.) 124 S. W. 217. In order to recover the damages sought it was essential for the appellees to establish the liability of appellants therefor by showing some act or omission amounting to negligence on the part of appellants, their servants or employees which caused the damages claimed. Or, in the absence of such showing, to show that the goods or merchandise were delivered to the initial carrier in good condition and on arrival at their final destination were delivered in the damaged condition, in which case the law will Cast the burden of proof upon the final carrier to show that the damage was not caused by any act or omission amounting to negligence on its part, and in the absence of such a showing its negligence will be presumed. The rule is thus stated in an approved quotation to be found in the opinion of Judge Rainey in the case of G. C. & S. F. Ry. Co. v. Holder (Tex. Civ. App.) 30 S. W. 384, to wit: “Where goods are delivered to a common carrier to be carried by a series of connecting lines to the point of destination, and the goods are. delivered in a damaged condition to the consignee, the shipper must show, in an action against the last carrier, that the goods were delivered in a good condition to the first. The last carrier must then show affirmatively that the goods were not injured on its line. The presumption is that the goods continued in the condition in which they were when the shipper parted with them.” In this case appellee does not rely upon any act or omission amounting to negligence on the part of appellants after the receipt of the vegetables for carriage on the railway lines of which they are receivers, but has rested his case upon the testimony of Fisher, as hereinbefore detailed, and the presumption of law above stated. Fisher’s testimony being material and objectionable, as we have endeavored to show, the judgment must be reversed as before stated. Appellants present several other objections to the proceedings below, but they are such as we think can, in the light of criticisms made in appellants’ brief, be easily avoided on another trial, and we will, therefore, but briefly notice them. We think the court gave the proper measure of damage in his charge to the jury, and the objection that the evidence did not conform to or support the verdict can probably be made to conform to the rule as given in the charge. The objection that the court in the judgment added interest to the amount of damages as found by the verdict, on the ground that interest in this character of ease is not recoverable in the absence of a pleading to support it, seems well taken. See Railway Co. v. Lyon (Tex. Com. App.) 243 S. W. 973. Appellee offered in evidence an assignment of the cause of action by the California Vegetable 'Union, to which' objection was made on the ground that no proof of its execution was offered. We are inclined to the view that this instrument requires proof of execution by one authorized to make it, and is not one that comes within the purview of articles 588 and 1906, Rev. Statutes. Such proof, therefore, should be made on another trial unless appellee is content to rely upon other evidences of ownership. No other question occurs to us as having sufficient importance to require discpssion, and we accordingly conclude that, for the error discussed, the judgment should be reversed and the cause remanded.