Memphis & Charleston Railroad v. Maples

STONE, J. The testimony of the witness, Cruse, if he had knowledge of the matters whereof he spoke, was very inartificially taken. All he attests in reference to the account of Kennamore with the railroad, both debit and credit, he derives from the books in his office, as he himself testifies. When asked if he, from his memory, and without reference [607] to his books, could give the state of account between the railroad company and Kennamore, its agent, he answered, that' he could not. If he had shown that he himself had made the entries in the books, and had knowledge of their correctness when he made them, or had shown any thing equivalent to that, then he might have consulted the books, as aids to his memory, and could have testified to the correctness of the account. — 1 Greenleaf’s Ev. § 436; Hudson v. The State, 61 Ala. 334. He gives no such testimony, and says nothing tending to show he ever had any personal "knowledge that the items composing the account were correct. If the account was made up of Kennamore’s report as agent, or if it was based on his report, the witness fails to show it. The testimony does not tend, in the slightest degree, to show that the account appended to Cruse’s deposition was made out by Kennamore, or his assistant, but, as we understand the evidence, it is nothing more than a copy of the book kept in the railroad company’s office, without any legal proof that the book itself showed the correct state of the account. Nothing .testified to by Cruise, or offered to be proved by him, touching the state of the account, was legal evidence. — Godbold v. Blair, 27 Ala. 592. As expressed, it appears all to have been derived from the books. 2. The testimony being hearsay, and substantially illegal, the court did not err in excluding it at any stage of the trial. There is nothing in the record to show that, upon a reexamination, Cruse could have given any legal testimony, tending to prove the correctness of the account; for it does not appear that he had any personal knowledge of the transaction. This, we understand to be the reason of the rule, which requires that motions to suppress testimony, for defects that can be remedied on a re-examination, must be made before the trial is entered upon. — McCreary v. Turk, 29 Ala. 244; Grey v. Mobile Trade Co., 55 Ala. 387. The testimony, as we said, being substantially illegal, the court committed no reversible error in excluding it, no matter how moved for or granted. — 1 Brick. Dig. 809, § 85 ; Ib. 810, § 93; Ib. 887, §§ 1189, 1190, 1197. 3. Much is said in the record about the original account, and a copy of it. We confess we do not perceive the pertinence or bearing of this. The account is not documentary evidence, to which the rules of primary and secondary evidence are adapted. The account, as shown, is in no sense a document, which the law pronounces the highest evidence of its contents, and which, when the foundation of a claim, must be produced, or its absence accounted for. Hence, we pass by, as immaterial, all that is said in the various rulings [608] on this question, as harmless in their effect, whether the rulings were abstractly right or not. They neither did nor could do the appellant any injury. 4. Neither is it necessary we should criticise the court’s rulings, on the subject of rules or instructions given to depot-agents, requiring monthly reports. Unless there was some evidence, which there is not, tending to show that Kennamore had made reports, and had therein charged himself, or that he had violated his duty in not making such reports, the proof that such instructions were given, or that it was the custom of the railroad company to so instruct its agents, could lead to no practical result whatever. The fundamental fault in the plaintiff’s case, lies in the entire absence of facts, testified, to as facts, proving, or tending to prove, that Kennamore had, as agent, received moneys which he had not accounted for. He may have been in default. The plaintiff did not prove it. Had the testimony, tending to prove instructions to agents to make monthly reports, been offered in legal form, accompanied by other proof, proposed to be made, that the account was made up from those reports, and in accordance with them, then the testimony might have been legal. — 1 Brick. Dig. 809, §§ 83, 84. By itself, it did not tend to elucidate any question in issue. — State v. Wisdom, 8 Por. 511; Governor v. Campbell, 17 Ala. 566; Magee v. Billingslea, 3 Ala. 679; 1 Brick. Dig. 809, § 81; Thompson v. Drake, 32 Ala. 99. 5. The record brings to view one small item of alleged indebtedness from Kennamore, the depot-agent, to the railroad company. That item is the $17.50, songhtto be proved by the witness Geo. W. Kennamore, and by his admissions. First, of his deposition: That had been taken by the defendants, pending the suit, on an affidavit made by Maples, that his testimony was material for the defense, and that a material part of the defense depended exclusively on the testimony of said witness. — Code of 1876, § 3069, subd. 5. See, also, section 3078, which declares that, “ when the deposition of a witness is taken for any other cause than Being a female, the deposition can not be used, if it appear at the trial that the cause for which it was taken does not exist ; unless such witness is dead, insane, or resides more than one hundred miles from the place of trial.” We consider that this statute reaches this case. The cause for which this deposition was allowed and taken, was the danger of the loss of this witness’ testimony by his death, removal beyond the jurisdiction of the court, &c. He was alive, a resident of' the count, and within less than one hundred miles of the court where the trial was had. — Mobile Life Ins. Co. v. Walker, [609] 58 Ala. 290; Henry v. Northern Bank of Alabama, at the present term. The court did not err in refusing to allow the deposition to be read. 6. Conceding that Geo. W. Kennamore was, or had been, the agent of his brother, the depot-agent, the admission sought to be proved, as having been made by him, is not brought within any rule that allows it to be proved as evidence against his principal, or the sureties of his principal. The admission was not made at. the time of doing an act in •execution of his authority as agent, and was not explanatory of. any contemporaneous act, made while in the execution of his agency, and thus constituting a part of the act. 1 Brick. Dig. 63, §§159, 160, 162, 164; Rhodes v. Lowry, 54 Ala. 4; Baldwin v. Ashby, Ib. 83. The admission sought to be proved in this case, is not even shown to have been made during the lifetime of the principal, and there is an entire absence of fact and circumstance, tending to show any act of agency was being done, whieh it could explain, or shed any light on. We find no error in the record prejudicial to appellant, and the judgment of the Circuit Court is affirmed.