168 Ky. 403 | Ky. Ct. App. | 1916
Opinion op the Couet by
— Affirming.
In this action for damages to two shipments of tobacco from Frankfort, Kentucky, to Jersey City, New Jersey, plaintiff, E. J. O’Brien, doing business as E. J. O’Brien & Company, recovered of the defendant, Louisville & Nashville Railroad Company, a verdict and judgment for $1,000.00. Defendant appeals.
Briefly stated, the facts are as follows: The tobacco, consisting of thirty-two hogsheads and valued at $2,312.75, was delivered to the Louisville & Nashville Railroad for shipment on the afternoon of March 20,, 1913. It- reached Dayton, Ohio, on the afternoon of March 24. The two cars containing the tobacco were then delivered to the Erie Railroad and placed in a through train due to leave the same day at 10:15 P. M. Owing to the high water and consequent washouts between Dayton and Marion, the train was held for about three hours and subsequently released, The next morning between eight and nine o’clock the Lewistown reservoir broke and the city of Dayton was enveloped by an unprecedented flood. The railroad yard was covered by water. Many of the cars were completely submerged. The water on others reached to a point three or four feet above the trucks. The road was unable to move any trains until April 4. The,.cars in question went out on the first train. The tracks north of Dayton were washed out and temporary repairs had to be made in order to get the train over after the water went down. It was about three weeks before normal conditions were restored. The cars in question did not reach Jersey City until April 20. They were placed on a siding adjoining the Jarvis warehouses. Mr. Jarvis inspected the' tobacco. At a distance of about three feet above the floor of the cars there was a dry muddy line extending-the full length of the cars. He opened one of the cars- and saw the same dry muddy line on the hogsheads. He then advised E. J. O’Brien & Company of the condition:
The trial court held, as a matter of law, that the unprecedented flood at Dayton was an act of God and was the proximate cause of all the damage that accrued prior to the time the tobacco left Dayton, and authorized the jury to find only such damages as resulted from the unreasonable delay between Dayton and Jersey City. The court further held, as a matter of law, that there was an unreasonable delay and authorized the jury to find for plaintiff the difference between the market value of the damaged tobacco when delivered, and its market value when it should have been delivered at Jersey City.
Defendant insists that the evidence of damage after the tobacco left Dayton is entirely too speculative to justify the verdict. This contention is based on the ground that "Whallen, who testified on the. subject, did not know the extent of the damage by the flood or the condition of the tobacco when it reached Jersey City. It appears, however, that the water line reached to about the middle of the hogsheads, and there is no evidence to the contrary. His opinion of the extent of the salvage was based on this fact. He .says that although about one-half of the tobacco was wet, there would have been a salvage of from 50 to 75 per cent, if the tobacco had been promptly delivered and rehandled. It is true that no one testifies to the exact condition of the tobacco when it was delivered at Jersey City. .However, the letter of the freight claim adjuster of the Erie Eailroad shows that the tobacco was advertised for sale and sold on the market, and after the expenses were paid the net pro
The point .is also made that the trial court erred in telling the jury that it was the duty of the defendant and its connecting carriers after the tobacco had been damaged by the flood at Dayton, and as soon as the flood conditions at that place would permit, to remove the said tobacco from that place and promptly carry the same to Jersey City, and to deliver it, or offer to deliver it, to the plaintiff; and in further instructing'the jury that it had been proven by undisputed evidence that the defendant and its connecting carriers failed to perform this duty, and by reason thereof the tobacco was caused to be further injured and damaged. It is first insisted that the instruction imposed on the defendant and its connecting carriers too high a degree.of care. Whether this be true or not it is unnecéssary to decide. The instruction, in so far as it bears on' the question of promptness, is merely prefatory and abstract. The question itself was not submitted to the jury. That being true, defendant was not prejudiced by the instruction unless the court itself erred in holding, as a matter of law, that there was an unnecessary delay in the shipments after they left Dayton, and that by reason thereof the'tobacco was further damaged. It is'true that defendant shows that, even after April 24, when the shipments were started, its tracks' were in bad 'condition by reason of the flood. Defendant,' hqwevei*, did not follow this statement up arid actually show that such Condition was the cause of the delay.' It did not undertake to trace the cars and account' for 'the delay at any particular
Another ground urged for reversal is the admission of the letter of the freight claim adjuster of the Erie Railroad without preliminary proof of its genuineness. The facts attending the introduction of the letter are as follows: On April 25, 1913, plaintiff wrote a letter to S. W. Moore, agent, Erie Railroad, Louisville, Kentucky, in which he advised him of the damage to the tobacco in question and of the refusal of the Jarvis warehouses to accept it, and presented'a claim against the Erie Railroad for the sum of $3,294.08. On July 10, plaintiff received a typewritten letter on the letterhead of the Erie Railroad Company, Office of Freight Claim Adjuster, purporting to he signed by H. C. Barlow, P. C. A. The subject of the letter is Claim E-151958 — L&D. The letter is addressed to'Messrs. E. J. O’Brien & Company, Louisville, Kentucky.- It begins as follows:
“We have your letter of April 25, 1913, addressed to Mr. S. W. Moore, our agent at Louisville, Ky., enclosing a bill for $3,294.08, said to be the value of 42 hhds. of tobacco damaged in transit.”
The letter goes on to state that the tobacco in question was caught in the .flood and that the company was not responsible because the damages were due to an act of G-od. The letter concluded as follows:
“Inasmuch as the tobacco was refused and left on our hands, we were obliged to dispose of same in the interest of whom it may concern, and accordingly turned it ’ over to auctioneers, who disposed of it. to the best possible advantage, the net amount realized being $8.41.*408 We have this amount on hand after taking care of the advertising and other expenses of sale.”
Professor Grreenleaf, in his work on Evidence, Section 575c, 16th Edition, says:
"A further exception to the rule requiring’ proof of handwriting has been admitted in the case of letters received in reply to others proved to have been sent to the party. Thus, where the plaintiff’s attorney wrote a letter addressed to the defendant at his residence, and sent it by the post, to which he received a reply purporting to be from the defendant, it was held that the letter thus received was admissible in evidence, without proof of the defendant’s handwriting; and that letters of an earlier date, in the same handwriting, might also be read, without other proof.”
In 17 Cyc., 411, the rule is thus stated:
“A letter received in the due course of mail purporting to be written by a person in answer to another letter proved to have been sent to him is prima facie genuine, and is admissible in evidence without proof of the hand-wiiting or other proof of its authenticity.”
This doctrine has been approved and followed in a number of cases. National Acc. Soc. v. Spiro, 78 Fed., 774, 24 C. C. A., 334; White v. Tolliver, 110 Ala., 300, 20 So., 97; Dick v. Zimmerman, 207 Ill., 636, 69 N. E., 754; Davis v. Robinson, 67 Iowa, 355, 25 N. W., 280; Lyon v. Railway Pass. Assur. Co., 46 Iowa, 631; Melby v. Osborne, 33 Minn., 492, 24 N. W., 253; Atlantic Ins. Co. v. Manning, 3 Colo., 224; Chicago, etc. R. Co. v. Roberts, 10 Colo. App., 87, 49 Pac., 428; J. H. Sanders Pub. Co. v. Emerson, 64 Mo. App., 662.
We see no reason why the rule should not be extended so as to apply to the facts of this case. Here plaintiff proved that he had sent a letter to S. W. Moore, agent of the Erie Railroad at Louisville, Kentucky. He introduced in evidence a copy of the letter. In this letter he asserted a claim against the railroad for damages to the tobacco in question. The natural thing for the agent to do would be to send the letter to the particular agent of the company having jurisdiction of freight claims. The letter in dispute shows on its face that it is in reply to the letter of plaintiff addressed to S. W. Moore, the local agent of the Erie Road at Louisville, and forwarded to the writer. It is written on the letter head of the Erie Railroad and purports to come from the office of the
Finding in the record no error prejudicial to the substantial rights of the defendant, it follows that the judgment should be affirmed, and it is so' ordered.