Louisville Bridge Co. v. L. & N. R. R.

75 S.W. 285, 116 Ky. 258, 1903 Ky. LEXIS 183

Opinion

Opinion of the court by

JUDGE HOBSON

Affirming.

On June 5, 1872, a contract was made between the Louisville Bridge Company, the Louisville & Nashville Railroad Company, the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company, and certain other railroad companies,, by which the railroad companies agreed to send their traffic over the bridge, and hound themselves to pay the bridge company such rates therefor as would pay certain fixed charges, create a sinking fund to meet an outstanding debt, and pay the stockholders a given annual dividend. This contract is set out in the opinion of this court in the case of Pittsburg, C., C. & St. L. Railway Co. v. Dodd., 115 Ky., 176, 25 R., 255, 72 S. W., 822. By the terms of the contract, the railroad companies using the bridge were placed on terms of absolute equalitythat is, each was to pay at the same rate for traffic it did over the bridge. For convenience, the Louisville & Nashville Railroad Company did not pay its tolls directly to the bridge company, but paid them to the connecting lines north of the river, and they settled with the bridge company. After the rates had been fixed, and tilings had gone on for a number of years, an arrangement was made by which the bridge company did nqt require the roads north of the river to pay the full amount of their tolls, but at the end of each quarter the charges were rebated to them to the extent that there was. a surplus over and above what was called for by the contract, and they were only required to pay to the bridge company the balance. This was without the knowledge or consent of the Louisville & Nashville Railroad Company, which continued to pay the full tolls. The rebating of the tolls began about the year 1881, and was not discovered by the Louisville & Nashville Railroad Company until some time, in the year 1888, when some facts came to the knowledge of its president which led him to suspect what was going on. He wrote to the bridge company, complaining, but nothing was done, although various communications passed between the parties. Finally, in the year 1892, the Louisville & Nashville Railroad Company filed this suit against the bridge company and the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company, seeking to recover of'them on account of the excessive tolls charged for the years 1881 to 1891. About the same time it filed another suit to recover for the same matters for the year 1892. In the latter suit, amended pleadings were filed, setting up a like claim for the years- 1893, 189á and 1895. Finally this case was tried, and a judgment rendered in favor of the Louisville & Nashville Railroad Company. The defendants appealed to this court, and the judgment was affirmed. See Louisville Bridge Company v. Louisville & Nashville Railroad Company, 106 Ky., 671, 21 R., 271, 51 S. W., 185. After that judgment had been rendered, the defendants filed an amended answer in the other suit, involving the years from 1881 to 1891; pleading that judgment in bar of the action. The court sustained a demurrer to the pleading. Evidence was then .heard, and, the case being submitted, the court gave judgment in favor of the Louisville & Nashville Railroad Company for the years 1888, 1889, 1890 and 1891, but dismissed its claim as to the years prior to 1888. From this judgment the defendants have appealed, and the plaintiff prosecutes a cross-appeal. The matters mainly relied on for reversal on the original appeal are the ruling of the court on the plea in bar, and its admission of the evidence offered by the plaintiff t-o make out its case..

As to the plea in bar, it is earnestly maintained by the appellants that the whole claim for all the years from 1881 to 1895 was based on the' same contract, and, being an entirety, the plaintiff could not split its cause of action and sue for part of it in one suit and for the remainder in another. Numerous authorities are cited by counsel in support of the proposition that, where an entire cause of action is split, a judgment in one case will bar a second action for the rest of the claim. The principle is sound, and has been applied very often by the courts. But it has no application where the defendant consents to the splitting of the cause of action. A party, to an action is never allowed to take advantage of that which he consented to, ánd his consent may be shown expressly, or it may be implied from the circumstances, as in other cases. Both the actions referred to were brought in the same court, and near the same time. The defendants appeared in both actions, and, without making any objection to the cause of action being split, or the bringing of two suits, filed a general demurrer to the petitions. These demurrers were heard by the court together, but one opinion being delivered, the court treating the two actions as one. The demurrer was sustained, amended pleadings were filed, the general demurrer was filed again, and again the two actions were heard together by the court, and the demurrers were overruled, the court delivering, as before, but one opinion in the two actions. After this, without any objection to the bringing of two suits, the defendants filed answer in each, and the issues were made up, the two actions moving on together side by side; and no> abjection was made until the year 1897, or something like five years after the suit was brought, when, one of the actions having been tried, an amended answer was filed, pleading the judgment in that action in bar of the other., In the one action the plaintiff sought to recover for the time down to the year 1891, and in the other for the time after 1891. If' objection had been made to the separation of. the cause of action, the plaintiff might have dismissed ■one suit without prejudice, and set up the entire cause of action in the other. This would have profited the defendants nothing. It was more convenient to'the parties' to practice the claim for the two periods separately, for the reason that the evidence was different, and it would have been somewhat confusing to have prepared the^whole matter in one suit. Besides, a very large sum of money was sued for — one half a million of dollars — and the bridge company had nothing to gain by advertising the lai*ge claim, against it in one suit. When a party is put to an election, and elects what course he will follow, he can not thereafter abandon that election to the prejudice of the other party.. When the two suits were filed and were heard together as one action on the demurrers, it was incumbent on the defendants to make objection to the form of proceeding then or not at all. Their silence then was an acquiescence in the prosecution of the two actions. One' of the objects of the Code is to expedite legal proceedings by requiring objections not going to the merits of the action to be made when the occasion for them arises. All such objections are waived if not made before issue is joined on the merits. Gunn v. Gudehus, 15 B. Mon., 449. All objections of mere form come within this rule, which is founded upon reasonable principles', for otherwise the rules of procedure, which are intended to facilitate the administration of justice, become in the hands of the skillful practitioner the instruments for defeating justice. Curd v. Lewis, 1 Dana, 351; Warren v. Glynn, 37 N. H., 340. Under the facts as shown by the record, we conclude that the defendants acquiesced in the bringing of the two separate actions, and by their course led the plaintiff to understand that the prosecution of the two actions was consented to by them, or at least .that the objection thereto was waived. After all this, it was too late, after one action had proceeded to judgment, to> object in the other action to that which for three years had at least impliedly been consented to.

The objection as to the admissibility of the evidence arises in this way: The bridge company kept no record of Jthe •business done by the Louisville & Nashville Railroad Company, as it paid its tolls to the connecting lines, and they settled with the bridge company.' When it became necessary to ascertain how much the tolls of the Louisville & Nashville Railroad Company amounted to, a very difficult question was presented, as no record of the payments of the money had been kept. Previous to the year 1888, the Louisville & Nashville Railroad Company had no records at all on the subject; but after the year 1888 it kept the waybills on the freight, or, where the waybill followed the goods, the transfer slip, from which the waybill was made out, was preserved. From these original papers kept by the railroad company, with much labor, it made out a detailed statement of the tolls paid by it subsequent to the year 1888. Objection is made as to tlie competency of these papers, on the idea that they were simply loose memoranda. This can, not be maintained. They were the original and best evidence of the transaction, and were the record kept by the railroad company to show its transactions. In cases of this sort the law; does not demand impossibilities-; it only demands the best evidence practicable; and no witness could carry in his mind these transactions. The only-possible way to prove them is from the record kept at the time the transactions occurred. It is also objected that these original papers were not in fact produced before the commissioner to whom the case was referred to state the account; but he reports that he examined them, and that they were not filed for the reason that they would fill up the commissioner’s office, and were too numerous to be brought into court. This was all'that the plaintiff could do. The defendants and their attorneys were also afforded opportunities to examine the papers. The defendants also complain that the statements of the account made out from these papers were allowed in- evidence. Proof was takerr by the officer of -the railroad under whose supervision and oversight the work was done, and he testifies to its correctness, and that it was done under his eye; that is, that he superintended it, checked it up, and knew it to be correct. It was unnecessary to bring in all the clerks who had made out the original wajdnlls or prepared the numerous state..ments. The waybills, being the records of the company of its transactions made at the time, were original evidence, .-and admissible without further proof, because made and kept as a record in tile usual course of business. The proof by the two witnesses who testify to the correctness of the ■statements made up from these waybills was sufficient to make out a prima facie case, which was supported by the commissioner’s own investigation, and his finding the statements correct in so far as he tested them; but, of course, he could not examine all the items. The papers would, perhaps, hare filled the courtroom, and no good could have come from bringing them in before the judge, for no sourt could go through all these papers and make up a statement. If he did it, not being a practiced accountant, his work might have been worth intrinsically less than his commissioner’s. Besides, the defendants took no proof. . The roads north of the river had their records, and, if,the proof by the plaintiff was not correct, they had it in their power to show the truth. This they made no effort to do. For the. years after 1892 there was little dispute about the amount of the tolls. The result reached by the commissioner for the. years from 1888 to 1891 corresponds substantially with the.amount fixed for the years after 1892. The cardinal feature: of the common law is its want of specific rules. It rests on a few general principles. It requires the best evidence that the case is reasonably capable of, but it requires no more. The issue in this case depended upon a statement to be made up from thousands of waybills, which, if all brought in, would have filled up the commissioner’s office. The only practical way of getting at the truth was to make out a statement from these waybills. If either party doubted the accuracy of the statement when prepared, the court could afford him access to the papers, and give him opportunities to manifest the truth to him. To demand of the plaintiff more than was shown here would be to deny a recovery in cases of this character; The rule of evidence is that no evidence shall b'e received where there is better evidence which may reasonably be hhd. It is intended to prevent fraud, but it is not intended to prevent the administration 'of justice, where all the 'evidence is produced by .the party of which the case is reasonably susceptible. In Northern Pacific Ry. Co. v. Keyes (C. C.), 91 Fed., 47, where similar tables were introduced in evidence and objected to, the court said: “To have called each of the clerks would have added very little to the trustworthiness of the evidence. No clerk conducted any entire investigation, but various details were placed in the hands of forty or fifty different employes, and each contributed his computation to the general result. No clerk could have testified that the tables were correct, for the reason that they were not made by him; neither could any single clerk testify that the figures from which the tables were compiled were correct, for he only contributed a small fragment to the general result. The method adopted was the only practicable one for conducting the investigation. It would have been' absolutely impossible for any one man to have compiled the general result without delaying the ease for years. A reasonable safeguard against falsification in the preparation of such statements is furnished by placing the records from which they are compiled freely at the disposal of the adverse party. It was the duty of the companies to do this, and to give the Attorney General the fullest assistance in explaining such records, and to allow him to place the same fin the hands of expert accountants, if he so desired, for the purpose of detecting error or falsification in the testimony as prepared by the companies. The record shows that this was done throughout the taking of the testimony in these cases. _We must assume that the Attorney General was satisfied of the correctness of the testimony, from the fact that he. declined to investigate its trustworthiness/’ This seems .applicable to the case before us. The evidence in the case' is the original record kept by the railroad company of the transactions as they occurred. The statements or tables prepared by the clerks are not, properly speaking, evidence a,t all. They are only exhibits of the facts shown by the evidence. If the court' doubted their correctness, he should have had correct statements or tables prepared; but it was not necessary to do this when those offered were proved to be presumptively correct, and there was no showing made that they were incorrect. The court has a sound discretion in determining matters of this sort, in the interest of substantial justice, and we see no error in the admission of the matters in question.

The defendants complain that interest was allowed on the amount found due the plaintiff. In the former case above referred to, of Louisville Bridge Company v. Louisville & Nashville Railroad Company, 106 Ky., 674, 21 R., 271, 51 S. W., 185, it was held not only that the defendant was liable, but that it was liable for interest from the date of the illegal exactions — at least, from the time it hád information of the amount 'due the plaintiff. The chancellor seems to have followed this ruling. As to the cross-appeal of the appellee for the years previous to 1888, there being no record of the amount of tolls paid, we concur with the chancellor in refusing to give relief. The. court will not guess at the amount of a judgment. The plaintiff must make out his case. If he can not do it, it is his misfortune that he has no evidence. It is true, we might infer from the facts shown by the record that appellee is entitled to something for these years, yet, after all, it would be a bald guess to fix any amount.' But while we are unwilling to disturb the judgment on the cross-appeal, we have no doubt from the record that at least as much was due the appellee, as the chancellor entered judgment in its favor for, and that, on the whole case, appellants have no substantial ground of complaint.

As the bridge company and the Pittsburg, Cincinnati,, Chicago &’ St. Louis Railway Company are not adversary parties herein, their rights as between themselves are not determined.

Judgment affirmed.

Petition for rehearing by appellant overruled.