Consolidated Grocery Co. v. Hammond

Fifth Circuit

Consolidated Grocery Co. v. Hammond

175 F. 641, 99 C.C.A. 195, 1910 U.S. App. LEXIS 4187

CourtCourt of Appeals for the Fifth Circuit

DecidedFebruary 1, 1910

DocketNos. 1,909, 1,931

StatusPublished

Cited by7 cases

This text of 175 F. 641 (Consolidated Grocery Co. v. Hammond) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Consolidated Grocery Co. v. Hammond, 175 F. 641, 99 C.C.A. 195, 1910 U.S. App. LEXIS 4187 (5th Cir. 1910).

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Opinions

SHELBY, Circuit Judge

(after stating the facts as above). 1. One of the objections made to the admissibility of the letter was that it was not sufficiently proved or authenticated to make it admissible in evidence.

A letter is not a self-proving instrument, and proof of some kind tending to show its genuineness is always required. The mere contents of a written communication, purporting lo be a particular person’s, are, of themselves, not sufficient evidence of genuineness. 3 Wigmore on Evidence, § 2148. The only evidence offered to show that the letter was genuine was proof that the plaintiff received it “by regular mail.” It was received as evidence, without further proof, we presume, because it was construed as purporting to be an answer to a letter previously written by the plaintiff. It was written on April 27th, and contains a reference to “yours of the 24th.” It has been held that, where it appears from the evidence that a letter is received by due course of mail in answer to one previously posted to the writer, the letter may be submitted in evidence without further proof. 3 Wigmore on Evidence, § 2153. But, in such case, it must first be proved that a letter was written and mailed, to which the letter offered is an answer. National Acc. Soc. v. Spiro, 78 Fed. 774, 24 C. C. A. 334. The defect in the preliminary proof here is that it was not shown that Hammond wrote and posted a letter to Acosta. If that was shown, his reply, received in due course of mail, may have been treated as prima facie genuine. The statement in a letter offered that it is in answer to a letter previously received cannot, of itself, make the letter admissible. To so hold would make the statement in the letter prove the writing and posting of the previous letter, and also prove its own genuineness. That cannot be permitted. Smith v. Shoemaker, 17 Wall. 630, 21 L. Ed. 717.

2. But, if the letter had been sufficiently proved to be a genuine letter written by Acosta, could it then have been received as evidence? Acosta was not sued; he was not in the alleged conspiracy; lie was not the agent of the defendants, or either of them; he is a third person, not connected in any way with the defendants. The letter, having been written by a third person, without the knowledge of the defendants, and without their subsequent sanction or approval, seems to us to be hearsay testimony, so far as the defendants are concerned, [646]*646and, for that reason, inadmissible against them. Nevada Company v. Farnsworth, 103 Fed. 573, 43 C. C. A. 504; Dwyer v. Dunbar, 5 Wall. 318, 18 L. Ed. 489; Insurance Company v. Guardiolla, 129 U. S. 642, 9 Sup. Ct. 425, 32 L. Ed. 803; 1 Greenleaf on Evidence (16th Ed.) § 98 et seq.; 2 Wigmore on Evidence, § 1361 et seq.

3. It is urged that the admission of the letter should not cause a reversal because there is other legal evidence to support the verdict.

It is, of course, a sound principle that a judgment should not be reversed when the error complained of worked no injury. Referring to the application of this rule, in Smith v. Shoemaker, supra, page 639 of 17 Wall. (21 L. Ed. 717), the court said:

"It must appear so clear as to be beyond doubt that the error did not and could not have prejudiced the right of the party. The case must be such that this court is not called on to decide upon the preponderance of evidence that the verdict was right, notwithstanding the error complained of.”

The letter in question here bears so upon the issues joined that we cannot, in view of other evidence in the record, say that it was not injurious to the defendants.

Upon the exceptions to other rulings we give no opinion, because they may be presented in a different aspect in another trial.

The judgment of the Circuit Court is reversed, and the cause remanded for a new trial.

The judgment of reversal makes it unnecessary to decide the assignment of error, made on' the cross-writ of error, that the Circuit Court erred in refusing to grant the motion of the plaintiff to enter judgment for three times the amount of the verdict.

The costs in both cases will be taxed against the plaintiff.

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SHELBY, Circuit Judge

(after stating the facts as above). 1. One of the objections made to the admissibility of the letter was that it was not sufficiently proved or authenticated to make it admissible in evidence.

A letter is not a self-proving instrument, and proof of some kind tending to show its genuineness is always required. The mere contents of a written communication, purporting lo be a particular person’s, are, of themselves, not sufficient evidence of genuineness. 3 Wigmore on Evidence, § 2148. The only evidence offered to show that the letter was genuine was proof that the plaintiff received it “by regular mail.” It was received as evidence, without further proof, we presume, because it was construed as purporting to be an answer to a letter previously written by the plaintiff. It was written on April 27th, and contains a reference to “yours of the 24th.” It has been held that, where it appears from the evidence that a letter is received by due course of mail in answer to one previously posted to the writer, the letter may be submitted in evidence without further proof. 3 Wigmore on Evidence, § 2153. But, in such case, it must first be proved that a letter was written and mailed, to which the letter offered is an answer. National Acc. Soc. v. Spiro, 78 Fed. 774, 24 C. C. A. 334. The defect in the preliminary proof here is that it was not shown that Hammond wrote and posted a letter to Acosta. If that was shown, his reply, received in due course of mail, may have been treated as prima facie genuine. The statement in a letter offered that it is in answer to a letter previously received cannot, of itself, make the letter admissible. To so hold would make the statement in the letter prove the writing and posting of the previous letter, and also prove its own genuineness. That cannot be permitted. Smith v. Shoemaker, 17 Wall. 630, 21 L. Ed. 717.

2. But, if the letter had been sufficiently proved to be a genuine letter written by Acosta, could it then have been received as evidence? Acosta was not sued; he was not in the alleged conspiracy; lie was not the agent of the defendants, or either of them; he is a third person, not connected in any way with the defendants. The letter, having been written by a third person, without the knowledge of the defendants, and without their subsequent sanction or approval, seems to us to be hearsay testimony, so far as the defendants are concerned, [646]*646and, for that reason, inadmissible against them. Nevada Company v. Farnsworth, 103 Fed. 573, 43 C. C. A. 504; Dwyer v. Dunbar, 5 Wall. 318, 18 L. Ed. 489; Insurance Company v. Guardiolla, 129 U. S. 642, 9 Sup. Ct. 425, 32 L. Ed. 803; 1 Greenleaf on Evidence (16th Ed.) § 98 et seq.; 2 Wigmore on Evidence, § 1361 et seq.

3. It is urged that the admission of the letter should not cause a reversal because there is other legal evidence to support the verdict.

It is, of course, a sound principle that a judgment should not be reversed when the error complained of worked no injury. Referring to the application of this rule, in Smith v. Shoemaker, supra, page 639 of 17 Wall. (21 L. Ed. 717), the court said:

"It must appear so clear as to be beyond doubt that the error did not and could not have prejudiced the right of the party. The case must be such that this court is not called on to decide upon the preponderance of evidence that the verdict was right, notwithstanding the error complained of.”

The letter in question here bears so upon the issues joined that we cannot, in view of other evidence in the record, say that it was not injurious to the defendants.

Upon the exceptions to other rulings we give no opinion, because they may be presented in a different aspect in another trial.

The judgment of the Circuit Court is reversed, and the cause remanded for a new trial.

The judgment of reversal makes it unnecessary to decide the assignment of error, made on' the cross-writ of error, that the Circuit Court erred in refusing to grant the motion of the plaintiff to enter judgment for three times the amount of the verdict.

The costs in both cases will be taxed against the plaintiff.

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175 F. 641, 99 C.C.A. 195, 1910 U.S. App. LEXIS 4187, Counsel Stack Legal Research, https://law.counselstack.com/opinion/consolidated-grocery-co-v-hammond-ca5-1910.

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