150 Ky. 257 | Ky. Ct. App. | 1912
Opinion op the Court by
Affirming.
This is the second appeal of this case, and the opinion on the first appeal may be found in 125 Ky., 366. The facts are stated in that opinion, therefore, it is unnecessary to repeat them here. The action was instituted against both of the appellees in Bullitt County. The Cumberland Telephone & Telegraph Company’s lines ran into and through that county and it maintained an agent there, but the Louisville Home Telephone Company had neither a line nor agent in that county. This court decided upon the former appeal, that a judgment against the Louisville LT.ome Telephone Company could not be sustained unless there was some evidence indicating the liability of the Cumberland Telephone' & Telegraph Company, the resident of Bullitt County, and then found that there was not the slightest testimony showing that company’s liability for the accident to Beeler; therefore, the judgment was reversed.
The testimony was in substance the same on the last trial as on the first with this addition: Beeler’s executrix showed by two witnesses, John B. Norris and -Ed. Boyle, that some days before Beeler fell from the pole of the Cumberland Telephone & Telegraph Company and was killed, they saw a writing in the possession of J. B. Helm, foreman of the Cumberland Telephone Company’s hands, which was on the letter head of the Cum-
“1. In addition to writings which a party is required by section 120 to file as the foundation of his action or defense, he may file, as an exhibit, with his pleading, or with leave of court at any time pending the action, any writing upon which he may intend to rely as evidence.
“2. In an equitable action, such exhibits shall constitute part of the record, unless it show that they were not used on the trial.
“3. In an ordinary action, such exhibits shall not constitute part of the record, unless it show that they were used on the- trial.”
Thus it will be seen that, if a party to an action desires to read a writing upon the trial of it, he may file it with his pleadings and read it as genuine without proving its execution, provided the other party does not, before trial, deny its genuineness by affidavit, as provided in section 527 of the Code, which is as follows:
“A writing purporting to have been made by a party, if referred to in, and filed with, a pleading of his adversary may be read as genuine against him, unless he deny its genuineness by affidavit before the trial is begun. ’ ’
“Section 588 of the Civil Code provides, that ‘where a writing, purporting to have been executed by one of the parties, is referred to in, and filed with, a pleading, it may be read as genuine against such'party unless he denies its genuineness, by affidavit, before the trial' begins.’ But, although such a paper as that offered in evidence is referred to in Gentry’s answer, it is not made a part of the answer, nor with it, or otherwise filed, so as to allow the adverse party an opportunity to inspect it before the trial. Under such circumstances, we think, the court very properly refused to permit the paper to be read without proof of its execution.”
Under these authorities, it is clear the above testimony was not competent, as the sections of the Code were not complied with nor the execution of the paper proved. The parties might haye secured this paper to be used as evidence by a subpoena duces tecum against Helm or the officers of the Cumberland Telephone Company who had charge of its records and papers.
There being no additional proof on the part of appellant showing the liability of the Cumberland Telephone Company for the death of Beeler, the lower court did not err in granting the motion for a peremptory instruction on behalf' of appellee, as the law as stated in the former opinion is the law in this case.
For these reasons the judgment of the lower court isi affirmed.