Grenada Cotton Compress Co. v. Atkinson

47 So. 644 | Miss. | 1908

Eletciier, L,

delivered the opinion of the court.

One of the numerous questions presented by this record is the competency of the books introduced in evidence. It is earnestly argued that these books are not shown to be competent within the principles of Chicago, etc. R. Co. v. Provine, 61 Miss. 288, and other familiar authorities. Considering the showing made-as to the manner in which the books were kept, the sources of information relied on by the persons who made the entries, the due and regular course of business to which the entries relate, the methods by which the entries .were verified, and the proof as to their correctness as shown by subsequent developments, we think it is not necessary to qualify in any respect the rule laid down in the Provine case, in order to hold the books competent in this particular case.

We give our approval to the admirable statement of the modem rale contained in Wigmore on Evidence, § 1530. It is there said: “The conclusion is, then, that where an entry is made by one person in the regular course of business, recording an oral or written report, made to- him by one or more other persons in the regular course of business, of a transaction lying in the personal knowledge of the latter, there isi no- objection to receiving that entry under the present exception, provided the-practical inconvenience of producing on the stand the numerous persons thus concerned would in the particular ease outweigh the probable utility of doing so>. Why should not this conclusion be accepted by the courts? Such entries are dealt with in that way in the most important undertakings of mercantile and industrial life. They are the ultimate basis of calculation, in-. vestment,- and general confidence in every business enterprise nor does the practical impossibility of obtaining constantly and permanently the verification of every employe affect the trust that is given to such books. It would seem that expedients which the entire commercial world recognize as safe should he sanctioned, and not discredited, by courts of justice. When it is a mere question of whether provisional confidence can be placed in a certain class, of statements, there cannot profitably and sensibly be one rule for the business .world and another for the courtroom. The merchant and the manufacturer must not he turned, away remediless because methods in which the entire community places a'just confidence are a little difficult to reconcile with technical judicial scruples on the part of the same persons who, as attorneys, have already employed and relied upon the same methods. In short, courts must here cease to' be pedantic and endeavor to be practical.” Considering this exact statement of the Tule as supplementing what has been said by this court on the subject, we have no difficulty in approving the action of the court below in admitting the books in evidence.

Due consideration has been given to the contention on the part, of appellant that the plaintiff is precluded from recovering in this action on account of the provisions in the compress receipts that all claims for damages must be adjudicated before the cotton leaves the possession of the compress company. Such a provision, while manifestly reasonable and enforceable in some cases, cannot be upheld on the facts of this case. It is clear that the course of dealing between the parties negatives the idea that this clause can be set up as a defense. ' In the absence of opportunity to make a careful examination, considering the fact that the cotton could not be withheld from the market for an indefinite period while the slow process of adjudication was being completed and the further fact that the compress company itself, as shown by the declaration of its manager, attached little or no importance to the provision, we are constrained to uphold the railings of the circuit court on this point.

We deem it unnecessary to decide whether a compress company, receiving and storing cotton for safe-keeping, compression, and shipment, can contract against the consequences of its own negligence. Upon the point made as to the clause in the compress receipt exempting the company from liability for loss by fire and water, we think that this has no reference to damage resulting from exposure to the ordinary action of the elements. The exemption from liability relates to damage resulting from some disaster produced by fire or flood, in the nature of an overwhelming catastrophe. It was, manifestly, not within the contemplation of the parties that the bailee should, by virtue of this clause, be licensed to expose the cotton to the weather and thus produce the damage which ordinary care should have avoided.

It is said that the action must fail because each bale of cotton stored with the company is evidenced by a separate compress receipt, and that it therefore became the duty of the plaintiff to prove the particular damage to each particular bale SO' receipted for, and that proof of general damage 'to the cotton in controversy is not sufficient. To support this contention reliance is placed upon the cases of the Chicago, etc., R. Co. v. Provine, supra, and Illinois, etc., R. Co. v. Gross (Miss.) 22 South. 946. These eases are not in point. They are actions against carriers for a failure to deliver cotton shipped over their lines. The instant case is a suit for damages to certain lots of cotton, set out in the bill of particulars, and the proof was sufficient to convince the jury that damage had resulted to this cotton through negligent handling of the same by the defendant company.' It should be borne in mind that, while each bale of cotton damaged was not identified by reference to its own particular compress receipt, yet it was shown what the damage was to all the cotton, bale by bale, and that the bales so damaged were identified by marks and otherwise as being the identical cotton delivered to the compress company and described in the bill of particulars. We think this is sufficient.

We do not review the instructions given and refused, since they relate to the questions already considered and others which we think are without merit. The jury was well warranted in believing that the damage resulted from the negligent conduct of the defendant; and, since the correct result has been reached along lines of substantial accuracy, we think the judgment should be, and it is hereby, Affirmed.