121 Ky. 322 | Ky. Ct. App. | 1905
Opinion by
Affirming.
This appeal is from a judgment for damages for a property loss caused by an erroneously transmitted telegram. The facts are briefly as follows: The appellees were wholesale fruit merchants in Louisville. On April 28, 1899, .through one Adolph Anderson, a fruit broker employed by them in New York, they purchased from the Fruit Auction Co. a carload of lemons. The instructions to the broker were-to purchase a long-keeping lemon. On May 3, 1899, the lemons arrived, and the appellee telegraphed their broker as follows :
“Adolph Anderson, 106 Warren street, New York, N. Y.:
“Lemons not as represented. Not keeping lemons,, as you stated. Turning rotten already., Very hollow.
“J. B. CORSO & SONS.”-
Receiving no answer to this, on May 4th the appellees telegraphed to the broker again as follows: Lemons still in car. Will spoil from heat. Wire immediately what to do. Explain fully. Can we unload at importer’s expense?” In answer to this the broker delivered to the Western Union Telegraph Co. the following telegram:
““J. B. Corso & Sons, Louisville, Ky.:
“Importer of last car at Montreal. Take lemons. ¡Something will be done.
“ADOLPH ANDERSON.”
Tn answer to this the broker delivered to the Western Union Telegraph Co. the following telegram:
“J. B. Corso & Sons, Louisville, Ky.: Importer of last car at Montreal takes lemons. Something will be done.
“ADOLPH ANDERSON.”
Acting upon this telegram, and believing that the. importer had been seen by the broker and he had agreed to take charge of the lemons, the appellees gave them no further attention, and they were left in .the heated car on the railroad track until May 12th, when they were unloaded by the railroad company and subsequently sold. The appellees did not know of the mistake in the transmission of the telegram, and that the importer had not agreed' to take the lemons, until they were unloaded. It was shown in the testimony that the weather was warm, and that the lemons very rapidly spoiled and depreciated in value during the time they were in the car, the witnesses fixing the depreciation at 75 cents per box.
The appellees testified that they understood from
With reference to the first assignment of error, it is necessary to the understanding of the question to make a brief statement of the facts with reference to the original petition and the amendments. It appears that the appellees considered it to their interest to not pay the Fruit Auction Co. for the car load of lemons and suffered themselves to be sued therefor. Then they filed their suit against the appellant, and claimed their damages to be whatever judgment the Fruit Auction Co. might recover against them. The Fruit Auction Co. recovered judgment for the amount of its claim, and appellees then amended their petition, laying the damages in the amount of that judgment. After this, and before the trial of this cause, this court, delivered an opinion in the case of Postal Telegraph Co. v. Schaefer, 110 Ky.,907, 23 Ky. Law Rep., 344, 62 S. W., 1119, which fixed the criterion of damages in
As to the second proposition, it is sufficient to say that there was sufficient evidence to authorize a recovery. The appellant claims that the court erred in the use of the following language in one of its instructions: “That by said mistake or error in the said telegram a person of ordinary prudence, under the facts and circumstances in evidence, would have been induced to leave the lemons in the care of the railroad company, and the plaintiffs were so induced by such error, ’’ etc.; that in this the court submitted a matter to the jury which had not been put in issue by the pleadings; that it was alleged in the pleadings of appellees that by reason of the erroneous telegram they had been induced to refuse to receive the lemons, while the instructions submitted to the jury the question whether or not they had been induced to leave the lemons in the care of the railroad company. There is not any substantial difference between the pleadings and the instruction. The refusal to receive them necessarily left them where they were — that is, with the railroad; and leaving them with the rail
As to the third assignment of error, to wit, the court failing to suppress the deposition of Adolph Anderson, it is necessary to give a short statement of the facts with reference to it. The deposition was taken on notice on May 20, 1902, before a notary public in the city of New York, the appellant being represented in person and by counsel, while the appellees were not. The deposition was filed in the record June 23, 1902. On June 25th the appellant filed an exception to it, for the reason that the certificate of the officer failed to show that it had been read to and subscribed by the witness in the presence of the officer, and failed to state who, if any, of the parties were present at the taking thereof. Upon these exceptions the court allowed the appellee to return the deposition to the officer who took it for correction, which was done, and it was returned to the clerk’s office on April 22, 1903. On November 17, 1903, another exception to the form of the deposition was filed by the appellant, to the effect that the officer taking the deposition acted as attorney for the appellees. This exception was supported by the affidavit of one Benedict. The deposition was again returned to the officer for his statement as to whether he had, or not, acted as attorney for the appellees, and was again returned to the clerk’s office on December 25, 1903, with a certificate showing that the questions propounded by the examiner were written questions furnished him to be asked on behalf of the appellees, and that he did not act- as the attorney for them. Afterwards, on February 4, 1904, for the first
It is contended by appellant that this is an infraction of sec. 582 of the Civil Code of Practice, which provides that the officer’s certificate shall, among, other things, show that it was written and subscribed by the witness in the officer’s presence, or was written by the officer in the presence of the witness, and read to and subscribed by the witness in the presence of the officer. The purpose of this provision was to procure an authentic statement of the witness under oath, and also that it be definitely ascertained to what the witness has made oath, and therefore either that the witness himself shall write the deposition or that the officer shall write it, and, when the officer writes it, to bring it directly to the attention of the witness after it is written, it must be read over to and subscribed by him. The object of having the officer write the deposition is to prevent the substitution of false depositions or the coloring of answers by having them written by parties who are interested in the litigation. It was not intended by the Code that the officer should do the manual labor of writing the deposition. The purpose was that the officer should be responsible for its writing, and that he in person
In the case last cited above, the statute of New Hampshire authorized the magistrate to take depositions, and directed that the magistrate should write the answers of the witnesses without the interference of either party. In the case referred to, the person who wrote the answers was a person employed by the magistrate. The court held this to be a compliance with the statute and was the act of the magistrate. The court said: “It is stated in Kidder v. Prescott, 24 N. H., 267, as a well settled principle, that an act done by one in the presence and under the control of another, for that other, is regarded, not as the exercise of a delegated authority, but as a personsal act of the party in whose behalf it was performed.”
If appellant’s position as to the deposition was tenable, it can not avail it, for the reason that it permitted nearly two years to elapse after the deposition was filed in the record before it made this objection.
The appellant contends that this section has no application to courts having a continuous session; that, such courts have no terms. After án investigation of the statutes applicable to courts of continuous session, we are of the opinion that a term of such court is regarded, in civil actions, as 60 days.
"Wherefore, the judgment of the lower court is affirmed.