118 N.W. 344 | N.D. | 1908
Lead Opinion
This is an appeal from a judgment of the district court of Eddy county in defendant’s favor rendered pursuant to a verdict directed by the court.
The action was brought to recover damages from defendant, as a common carrier of freight, for alleged negligence in transporting a certain car -of flax belonging to plaintiff from Barlow, in this
The court was asked to take judicial notice of the 1894 General Statutes of the state of Minnesota, -creating the department of state weighmaster at Duluth, and especially to section W05 thereof, pertaining to the records to be kept by that department, which law requires the state weighmaster and his assistants to make true weights and to keep true records of all grain weighed by them. Plaintiff at the taking of the deposition, offered in evidence the original record of the date, description, and weight of the car as shown by the entries made by Bagley, the assistant weigh-miast-er; but defendant objected thereto, which objection was sustained by the trial -court and the testimony excluded. Plaintiff then -offered a copy of such record duly proved by the witness to be correct, which -offer was rejected
Under the provisions of the Minnesota law in question, we find nothing in express terms making such record prima facie evidence of the truth of the matters therein set forth in the courts of Minnesota; but .this law does provide that such weighmaster and his assistants shall, upon demand, give to any .person or persons having weighing done a certificate under his hand and seal showing the amount of each weight, number of car, etc., and that such certificate shall be admitted in all actions, etc., as prima facie evidence of the facts therein contained. The Code of this state (section 7298, Rev. Codes 1905) provides that: “Entries in public or other official books or records made in the performance of his duty, by an officer or board of officers, or under the direction and in the presence of either in the course of official duty is prima facie evidence of the facts stated therein.” And section 7299 of the same -Code provides that: “An entry made by an officer, or board of officers, or under the direction and in the presence of either in the course of official duty is prima facie evidence of the facts stated in such entry.” It is contended by counsel for appellant that the latter section refers to official records generally, and is not confined to those made by officers in this state. In this we think he is in error. It is apparent to our minds that it was the legislative intent that these sections should apply only to domestic records. There is therefore no express statute in force in this state making foreign records, such as the one >in question, prima facie or any evidence per se of the
Having reached the conclusion that the -proof offered should have been received, we will next consider the question as to the suffiency of the evidence including the record evidence which
In conclusion, we hold that, while it was error for the trial -court to exclude the record testimony offered as to the weight of the flax at Duluth, the -ruling excluding the same in no manner prejudiced the plaintiff, -and hence, under the rule adopted by this court to- the effect that a reversal will not be ordered for error in excluding testimony when the plain-tiff, even /assuming that the excluded evidence is in the case, has failed to make -out his cause of action, the judgment should be affirmed. Brundage v. Mellon, 5 N. D. 74, 63 N. W. 209. See, also, 2 Enc. Pl. & Pr. 563, 499.
Judgment affirmed.
Rehearing
ON REHEARING.
A rehearing having /been granted in this ease, we have again considered the questions presented, and after mature delibration e are forced to -adhere to- the views expressed ¡in the foregoing opinion.
Counsel for appellant strenuously contends that there was sufficient evidence, when the record proof of terminal weight is considered, to require a -submission of the case to the jury. He also contends, iin -any event, that the ruling of the trial court in excluding
Thus far we have assumed that plaintiff sufficiently proved the fact that he delivered to the defendant, by placing in said car, the amount of flax -claimed by him to have been thus delivered. An examination of the testimony serves to convince us that his proof in this regard is by no means satisfactory. Plaintiff .testified. “My flax -was loaded in this car. I helped to load it. I couldn’t say that I was there during the entire loading. There might have been some work while I w-as away. There might have been some put in there before I was there to put it ¡in. I helped do the hauling. I hauled some loads. Quite a number of different men .assisted me doing that hauling. I knew their names, but I might miss some of them. I did not do the weighing. The weighing of th-e flax
Whether .plaintiff delivered to the defendant the number of bushels claimed by him. to have been delivered depends upon the assumption that these private scales at Barlow were accurate, and that these persons who did the weighing weighed the grain correctly, and, also, that all the grain so. weighed was placed in the car, as well as the further fact that none of such grain during said two days was taken thereirom. The amount of grain delivered by defendant to the consignees, as claimed, rests upon the assumption that the scales at Duluth were accurate, and that the deputy weighmaster correctly weighed said car. Is not the inference to be deduced from the mere discrepancy in these weights just as reasonable that one of these scales was inaccurate, or that one of these persons incoi rectly, through mistake or otherwise, weighed said grain, as that some of it was lost in transit, especially in view of the testimony that said car was a good car and in good condition, and there being no evidence of any leakage? If the seal was not intact when the car arrived at its destination, such fact could 'have been shown iby plaintiff ¡by the testimony of the inspector at Duluth. The burden was on plaintiff to establish his claim that grain was lost or taken from the car while in transit, and not on defendant to establish the contrary, and plaintiff was not relieved of this duty because of the difficulty in furnishing such proof.
Appellant’s next contention, that the ruling of t'he trial court in excluding the record evidence of the terminal weight was prejudicial error under the rule announced in Brundage v. Mellon, 5 N. D. 72, 63 N. W. 209, is clearly untenable. The case at bar is clearly distinguishable from the Brundage case. The ruling in that case made it impossible for plaintiff to prove his cause of action. As stated in the opinion: “The attitude of the court in sue'h case is that * * * the .plaintiff, as a matter of law, cannot recover on the theory of the case on which he is seeking to recover at the trial.” In the case at bar the attitude of the court by its ruling was that plaintiff could not prove one feature of his case by the method attempted, not that no recovery could be had if plaintiff proved the fact sought to be proved, to wit, the weight of the
Judgment affirmed.
Dissenting Opinion
(dissenting). I concur in the holding that the record of the weighmaster’s office at Duluth should have been admitted, but cannot concur in the conclusion that a new trial should be denied.
It is clear to me that the exclusion of the record referred to may have been 'highly prejudicial to appellant. He may thereby have been prevented from furnishing the very proof that in effect is held by my associates was necessary to have made his case. He had shown the quantity of flax delivered the defendant at Barlow, and had attempted to prove a smaller quantity delivered at Duluth; but the trial court rejected the evidence of the latter. The opinion holds that such evidence should have been received; but that, if if had been admitted, defendant would not have made a prima facie case, because there was no proof of actual leakage. After the denial of the plaintiff’s right to show the difference in weights, it would have been an idle ceremony for him to have offered proof of actual leakage from the car. This court, in the absence of any showing in the record, cannot assume that plaintiff might not 'have been able to show the very facts held to be essential to make his case. He should have the opportunity to malee proof of such facts if he can do so. The record does not present the question that would be presented if plaintiff had furnished his proofs in other respects before the record) evidence was excluded. As to whether, with the record evidence in the case, appellant would have made a prima facie case, I express no opinion.