Fenn v. Timpson

New York Court of Common Pleas

Fenn v. Timpson

4 E.D. Smith 276

DecidedJune 15, 1855

StatusPublished

This text of 4 E.D. Smith 276 (Fenn v. Timpson) is published on Counsel Stack Legal Research, covering New York Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fenn v. Timpson, 4 E.D. Smith 276 (N.Y. Super. Ct. 1855).

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Opinion

[278]*278By the Court.

Ingraham, First J.

The action is against the defendants as common carriers. Upon the trial of the case, the justice granted a motion to discharge all the defendants except Timpson, and rendered judgment against him for the value of the property injured while in the charge of the company.

There can be no doubt that the evidence was sufficient to charge Timpson as a partner or person interested in the company. He admitted to the witness, Baker, that he was one of the proprietors of the Adams & Co.’s Express, and that the signature of Crane to the receipt for the goods was that of one of their clerks. The slight variation in the name is not sufficient to destroy the effect of this evidence. #

The terms of the receipt, as well as the evidence of Baker, show the business of the company to be that of common carriers. The testimony of witnesses to the same effect can only be founded on the same knowledge of facts as was presented to the court on the trial of this case.

To enable the defendant to avail himself of the exception in the receipt, he should, by evidence, show that the property was injured in one of the modes covered by the exception. The proof established the delivery of the property to the Express Company in good condition, and that the same property was injured before the goods passed out of their possession. This made out a grima fade case against them, and to relieve the company from the liability, the burden of proof was with them to show the mode of injury. There is nothing in the cases cited by the defendant’s counsel to relieve him from this obligation.

The objection to Baker’s competency was not taken before the justice. It cannot be noticed by us on the appeal. If it had been made in the court below, and the objection had been well taken, the same might have been remedied by a release, or by the production of other witnesses. To render such an objection available on appeal, it must, in the first instance, be presented to the court below on the trial.

Judgment affirmed.

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[278]*278By the Court.

Ingraham, First J.

The action is against the defendants as common carriers. Upon the trial of the case, the justice granted a motion to discharge all the defendants except Timpson, and rendered judgment against him for the value of the property injured while in the charge of the company.

There can be no doubt that the evidence was sufficient to charge Timpson as a partner or person interested in the company. He admitted to the witness, Baker, that he was one of the proprietors of the Adams & Co.’s Express, and that the signature of Crane to the receipt for the goods was that of one of their clerks. The slight variation in the name is not sufficient to destroy the effect of this evidence. #

The terms of the receipt, as well as the evidence of Baker, show the business of the company to be that of common carriers. The testimony of witnesses to the same effect can only be founded on the same knowledge of facts as was presented to the court on the trial of this case.

To enable the defendant to avail himself of the exception in the receipt, he should, by evidence, show that the property was injured in one of the modes covered by the exception. The proof established the delivery of the property to the Express Company in good condition, and that the same property was injured before the goods passed out of their possession. This made out a grima fade case against them, and to relieve the company from the liability, the burden of proof was with them to show the mode of injury. There is nothing in the cases cited by the defendant’s counsel to relieve him from this obligation.

The objection to Baker’s competency was not taken before the justice. It cannot be noticed by us on the appeal. If it had been made in the court below, and the objection had been well taken, the same might have been remedied by a release, or by the production of other witnesses. To render such an objection available on appeal, it must, in the first instance, be presented to the court below on the trial.

Judgment affirmed.

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Bluebook (online)

4 E.D. Smith 276, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fenn-v-timpson-nyctcompl-1855.