78 F. 774 | 6th Cir. | 1897
alter making the foregoing statement of facts, delivered the opinion of the court.
The only questions presented by the assignment of errors relate to the proceedings on the trial of the issue joined on the plea in abatement. That issue was one of fact, and involved the single question as to whether H. D. McBurney was an agent of the National Accident Society of any kind at the time process was served upon him. The Tennessee statute of March 29, 1887 (Acts 1887, c. 226) concerning suits against corporations of other states “found
“That it shall be the duty of the plaintiff to lodge at the home office of the company, with any person found there, a written notice from him or his attorney, stating that such suit has been brought, accompanied by a copy of 'the process and the return of the officer thereon, of which fact affidavit shall be made by the person lodging the same, stating the facts and with whom the notice was lodged, or else the plaintiff or his attorney shall make an affidavit that he has been prevented from serving such notice by circumstances which should reasonably excuse giving it, which circumstances the affidavit of the plaintiff or his attorney shall particularly state; and no judgment shall be taken until one or the other of these 'affidavits shall be filed and the court be satisfied that the notice had been given, or that the excuse for not doing so be sufficient.”
All the steps required by this statute for the purpose of giving actual notice of the pendency of this suit in the circuit court of the state were complied with before the declaration was filed, and the only question made below upon the trial of the issues under the plea of abatement was in respect to the actual relationship of H. D. McBurney to the defendant below. The effect of the appearance in the state court for the purpose of removing the suit to the circuit court, unaccompanied by a plea in abatement, and unaccompanied by. any'qualification of the objects of the appear-, anee, did not operate as a waiver of the right to object to the jurisdiction of the state court over the person of the defendant below, and.did not cut off the right to plead in abatement after the removal had been perfected. This question was certified to the supreme court at a former term of this court. Society v. Spiro, 18 C. C. A. 382, 37 U. S. App. 639, 71 Fed. 897. The opinion of that court upon the question thus certified is reported in 164 U. S. 281, 17 Sup. Ct. 996. Upon the trial of the issues joined under the plea in abatement, Masterson Peyton, one of the attorneys representing the plaintiff below, testified without objection that the claim of Fannie Spiro was placed in the hands of Ingersoll & Peyton, a firm of lawyers at Knoxville, Tenn., for collection, and that he at once mailed a letter, duly addressed to the home office of the National Accident Society in the city of New York, asking for blank forms upon which he might make out formal proofs of the death of the assured, Hermán Spiro. He then said, “I received this letter in reply,” and started to read the same to the jury. The defendant objected to the introduction of this letter, “because
“1 am not acquainted with the handwriting of the defendant, or any of its officers. The letter is signed by Jos. I. Barnum, the secretary of the defendant, and the same person who has signed the plea in abatement filed in this cause. The signature to the letter seems to have been placed there by a rubber stamp-, and is a fac simile of the signature of said Jos. I. Barnum, as it appears on said plea.”
The objection to the introduction of the letter in evidence was renewed, “because the same had not been duly proven, and that comparison of handwriting could not be resorted to, to identify and prove a written instrument, especially so inasmuch as the signature affixed to said letter was done by a rubber stamp, and not under the seal of the company, or under its signature.” The objection was overruled, and the letter admitted as evidence. The letter was written upon what purported to be a printed letter head of the accident society, and described Jos. I. Barnum as the secretary and general manager of the company. The letter was as follows:
“New York, April 11, 1894.
“Messrs. Ingersoll & Peyton, Knoxville, Tenn. — Gentlemen: Keplying to yours of the 9th, I herewith inclose, without prejudice to the rights of o-ur society, blanks upon which to submit to us proofs of death in the case of Herman Spiro; and, with further reference to this matter, will say that our adjustor, Mr. McBurney, who is at present in Terre Haute, Ind., received instructions from us some little time ago to call at your office, and make a personal investigation into the matter of Mr. Spiro’s death. He has full authority to act for us, and will show the same to you on his arrival.
“Very truly yours, Jos. I. Barnum, Secy. & Genl. Mgr.”
Did the court err in permitting this letter to go to the jury? The letter was one received in reply to one addressed to the plaintiff in error at its home office in New York. It came, or purported to come, from Yew York, and purported to be a communication from the plaintiff in error. It was written upon the business letter heads of the corporation, and to it was affixed, by stamping,” a fac simile signature of its secretary and general manager. The circumstances made a prima, facie case in favor of the genuineness of the letter, and justified its submission to the jury, who were the ultimate triers of the fact of its genuineness. The general rule which, requires proof of handwriting where the genuineness of a document or paper writing is involved, has its exceptions. There was no question in the case of proof of handwriting by comparison. The plea in abatement and other papers already in the case did show the undisputed genuine signature of Jos. I. Barnum; and, if it had been claimed that this letter had been written or signed in the handwriting of the same Jos. I Barnum, it would have been competent for the jury to have tried the question of handwriting by comparison of the disputed signature with the admittedly genuine signatures already in evidence for other purposes, though such comparison wras probably not admissible by experts. Moore v. U. S., 91 U. S. 270; Hickory v. U. S., 151 U. S. 303, 14 Sup. Ct. 334. Of course, no such comparison could have
“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 he 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.”
The same exception is approved in Wharton on Evidence, at section 1328.
The next error assigned is in these words:
“The court erred in allowing the witness for the plaintiff, Masterson Peyton, to give to the jury the contents of the paper writing which said witness, said H. D. McBurney, showed him upon his arrival in Knoxville, and which, according to Mr. Peyton’s testimony, was a power of attorney from the defendant to the said H. D. McBurney, without first showing that said writing was lost or destroyed, that it was in the possession of the defendant and therefore could not he produced.”
The witness Peyton, after identifying the letter of April 11, 1894, and after it had been allowed to go to the jury, proceeded to say, that:
“After the receipt of this letter on April 17, 1894, a man came to my office, and introduced himself as a Mr. McBurney of New York, and presented to- me written authority from the defendant company to settle and adjust the claim of Fannie Spiro; and said that he was acting for the defendant, and had come here to adjust the claim of Fannie Spiro, the plaintiff, against the defendant. He told me he had full authority from the company. He also showed me an instrument, with the seal of the company attached, which”—
Here the attorneys for the defendant objected to the witness giving the contents of said paper writing, because it had not been shown that the paper writing had been lost or destroyed, or that the plaintiff could not have had the same produced, and submitted to the jury. The court overruled said objection, and allowed the witness to give the contents of said paper writing to the jury as he remembered it. The said witness, resuming, said:
“It was a pbwer of attorney or authority from the company to Mr. BlcBurney to act for it. BlcBurney took the paper with him. He did not leave it with us. He and I talked some time, and tried to settle the claim; hut we failed to come to any agreement. ' He then left rñy office. Before he left town, on the same day, the plaintiff commenced her case against the defendant in the circuit court of Knox county, Tennessee, and on the same day process was served on Mr. McBurney, as agent of the defendant.”
For the defendant in error it is urged that the assignment of error does not comply with rule 11 of this court (21 C. C. A. cxii., 78 Fed. cxii.) in several respects: First, that it does not quote the full substance of
The third and fourth assignments of error are to the refusal of the court to give in charge certain requests. These requests are not made a part of the bill of exceptions. They appear in the record following the bill of exceptions, but are not part thereof. Yo journal entry either sets them out or refers to them, so that they are in no way made a part of the record, as in Wilson v. Pauly, 18 C. C. A. 475, 72 Fed. 129. Neither does it appear whether these requests were made before or after the charge. To the charge no exception wás taken. The assignments of error based upon these requests must therefore be overruled.
The ninth assignment is that the court erred in rendering judgment upon the policy of insurance, because the suit was premature, the policy providing “that all claims under this certificate
The eighth assignment of error was that it was error to render final judgment against the defendant, and the judgment should have been respondeat ouster. This assignment was properly withdrawn by counsel for plaintiff in error, as it was manifestly bad.
The judgment must be affirmed.