Illinois Central Railroad v. Butterfield Lumber Co.

49 So. 179 | Miss. | 1909

Fletcher, J.,

delivered the opinion of the court.

The judgment obtained by appellee depends in some degree upon the correctness of the book in which the weights of the lumber were recorded by appellee’s weightmaster, one Stillwell. On the trial, however, although this book was introduced in evidence and used by the witnesses as a basis of computation, the weightmaster was not introduced to show that the book was correctly kept, nor was there any evidence produced which would tend to show that the entries were accurate. Indeed, it was stated by the appellee that the weightmaster was in California, and no effort was made to have his deposition taken. While this court has no disposition to be over-technical in regard to the admissibility of books as evidence, yet such evidence cannot be received without competent proof of their correctness. Railroad Co. v. Provine, 61 Miss. 288. It was error for the court to permit the introduction of this proof.

Since the judgment must be reversed on this ground, it is not essential to the decision that anything else be said'. However, we here, express grave doubt as to the admissibility of the estimates testified to by Butterfield. It may be, however, that the appellee can strengthen his case on another trial, so as to show with reasonable certainty that the weights which the railroad company has made the basis of its charges are in fact incorrect. On the record here presented that fact is not very satisfactorily proved.

Reversed and, remanded.