Memphis & Charleston R. R. v. Hembree

84 Ala. 182 | Ala. | 1887

SOMERVILLE. J.

1. It is an established rule, many times reiterated by this court, that if any documents or papers, which are necessary as evidence in a court in one State be in possession of a person residing in another State, or jurisdiction, secondary evidence may be admitted to prove the contents of such documents or papers, without giving any preliminary notice to produce them. — Young v. East Ala. R'y Co., 80 Ala. 100; Martin v. Brown, 75 Ala. 442; Gordon v. Tweedy, 74 Ala. 236; Stephens’ Dig. Law Ev. (Reynolds’ Ed.), Art. 71; Burton v. Driggs, 20 Wall. 125.

The court, under this principle, erred in refusing to permit the defendant to prove by the witness White the contents of the written claim which the plaintiff: had filed with Mc-Gaughey for the alleged killing of the ox. The paper was shown to be in the possession of a person in another State, and not to be, in any manner, subject to the control of defendant.

2. Under the rule for the measure of damages laid down by us in Georgia Pacific R. R. Co. v. Fullerton, 79 Ala. 298, in cases where cattle, or stock of any kind, are killed by railroad companies, the Circuit Court erred in refusing to give the second charge requested by the defendant. The third charge requested was faulty only in pretermitting any inquiry by the jury as to the question of reasonable diligence being exercised oh the plaintiff’s part in utilizing for his own benefit the hide and carcass of the animal killed.

3. The motion to dismiss the case for want of jurisdiction, was properly overruled, the amount claimed by the plaintiff in his complaint, and the amount recovered by the judgment each being as much as sixty dollars. — Morris v. Robinson, 80 Ala. 291; Haws v. Morgan, 59 Ala. 508; Mills v. Long, 58 Ala. 458; King v. Palmer, 34 Ala. 416; Code, 1886, § 2739; Const. 1875, Art. 6, § 5; Code, §756.

The judgment is reversed and the caused remanded.