Miller v. Northern Pacific Railway Co.

118 N.W. 344, 18 N.D. 19, 1908 N.D. LEXIS 103

Opinions

Fisk, J.

This is an appeal from a judgment of the district court of Eddy county in defendant’s favor rendered pursuant to a verdict directed by the court.

The action was brought to recover damages from defendant, as a common carrier of freight, for alleged negligence in transporting a certain car -of flax belonging to plaintiff from Barlow, in this state, .to Duluth', Minn., whereby it is claimed that a certain quantity of such flax was lost in transit. The car was consigned to Crumpton & Crumpton, commission brokers at West Superior, W-is., and in due course the same was sold by them at Duluth and a return of the proceeds made to plaintiff, which returns were based upon weights taken by the state weighmaster’s department of the state of Minnenosa at Duluth. Plaintiff, to prove his cause of action, relied solely upon the discrepancy between the weights taken at Barlow at the time the flax was loaded into the car and the weights as shown by the records in the office of the state weighmaster aforesaid ; no evidence being offered to show leakages in the car or that it had been tampered with while in transit. Appellant relies for a reversal of the judgment upon alleged errors of the trial court in rejecting testimony offered by him to show the records made in the office of the state weighmaster pertaining to the car of flax in question. This testimony consisted of a deposition of one J. B. Sutphin, state weighmaster at Duluth, who testified that, according to his records, -the car was weighed by one Bagley at the time of its arrival, who was at that time a properly qualified assistant weigher in his department, and that such assistant made a record in writing of the date, description, and weight of the car and turned the same into his office in regular course of business pursuant to his official duty, where it 'had been at all times 'since. The witness had no personal knowledge of such weighing and did not know of his own knowledge whether it was correctly weighed or not. All he knew about it was that it was weighed in accordance with the system in vogue in his department and in accordance with the -statutes of Minnesota in force at that time applicable thereto-.

The court was asked to take judicial notice of the 1894 General Statutes of the state of Minnesota, -creating the department of state weighmaster at Duluth, and especially to section W05 thereof, pertaining to the records to be kept by that department, which law requires the state weighmaster and his assistants to make true weights and to keep true records of all grain weighed by them. Plaintiff at the taking of the deposition, offered in evidence the original record of the date, description, and weight of the car as shown by the entries made by Bagley, the assistant weigh-miast-er; but defendant objected thereto, which objection was sustained by the trial -court and the testimony excluded. Plaintiff then -offered a copy of such record duly proved by the witness to be correct, which -offer was rejected upon the same grounds urged against the introduction of the original record. These rulings constitute the grounds upon which appellant’s assignments of error are predicated. It is appellant’s contention that the record, being a public record kept pursuant to law, was admissible in evidence and was at least prima facie proof of the facts therein stated, and that with such record in evidence he would have made out his cause of action, as, according to the facts stated and shown by such records, defendant delivered to the consignee about 90 bushels of flax less than it received from plaintiff at Barlow. If this testimony was properly rejected, this ends plaintiff’s case; but, if it was improperly rejected, a new trial must be ordered, provided such record would, with other evidence in the case, have made out ;a prima facie cause of action as alleged. The question is therefore squarely before us as to whether or not a record, such as the one in question, made by a public officer in a sister state, is any evidence per se in the courts of this state of the facts recited in such record as against a third person, a stranger thereto.

Under the provisions of the Minnesota law in question, we find nothing in express terms making such record prima facie evidence of the truth of the matters therein set forth in the courts of Minnesota; but .this law does provide that such weighmaster and his assistants shall, upon demand, give to any .person or persons having weighing done a certificate under his hand and seal showing the amount of each weight, number of car, etc., and that such certificate shall be admitted in all actions, etc., as prima facie evidence of the facts therein contained. The Code of this state (section 7298, Rev. Codes 1905) provides that: “Entries in public or other official books or records made in the performance of his duty, by an officer or board of officers, or under the direction and in the presence of either in the course of official duty is prima facie evidence of the facts stated therein.” And section 7299 of the same -Code provides that: “An entry made by an officer, or board of officers, or under the direction and in the presence of either in the course of official duty is prima facie evidence of the facts stated in such entry.” It is contended by counsel for appellant that the latter section refers to official records generally, and is not confined to those made by officers in this state. In this we think he is in error. It is apparent to our minds that it was the legislative intent that these sections should apply only to domestic records. There is therefore no express statute in force in this state making foreign records, such as the one >in question, prima facie or any evidence per se of the facts therein stated; but the sections above quoted, in our opinion, are not exclusive in their -provisions, and, as we construe them, there is nothing therein contained' which restricts or limits- the 'courts to domestic records in giving effect to them, when properly proved as prima facie evidence. While the question is not free from -doubt, and while there seems to be a dearth of authorities upon the precise point here involved, we are of the opinion that the testimony was admissible and should have been received. We think it comes within the well-recognized exception to the rule excluding hearsay testimony in cases of .public records made by public officers in the discharge of their official duties. We know of no -good reason why this exception should be limited to public records in the state where kept, and no such restriction of the rule seems to- have been recognized by the authorities. The ground upon which this exception rests is well stated in Wigmore on Ev. vol. 3, §§ 1630-1683 ; I Greenleaf on Ev. (16th Ed.) vol. 1, §§ 48-3, 484, 493; I Whart. Ev. §§ 639, 347; 9 Am. & Eng. Enc. Law (2d Ed.) 882-883; 17 Cyc. 306; and cases cited. In par. 2, § 1633, of Prof. Wigmore's valuable work on Evidence, it is stated: “The subjective influence of the official duty being the essential justifying circumstance, it follows that an -official statement by a foreign officer is equally admissible with one made by a domestic officer. That the duty is not recognized by the domestic law is immaterial; it exists for the foreign -officer; and so far as it exists, if affords an equally official sanction.. This application of the principle, though plain, has rarely been drawn in question.” And again, in section 1662, the same author states: “That an official statement authorized to be made as the statement of a foreign officer does not make it any the less admissible. The essential thing is the authority of the officer, and a foreign authority equally satisfies the principle. There is, in the United States, the additional consideration that, under the federal Constitution (article 4, § 1) and the federal Revised Statutes (section 906 U. S. Comp. St. 1901, p. 677), the courts of each state are required to give -full faith and credit to the reoords of other states, and this may well be held to imply that recognition should be given (not merely as a matter of comity, but as a matter of legal right) to an official authority created by the laws of -another state for its domestic recording officers.”

Having reached the conclusion that the -proof offered should have been received, we will next consider the question as to the suffiency of the evidence including the record evidence which was' rejected, to have required the trial court to submit the case to the jury, for, of course, -the error in rejecting the offered proof was without prejudice, if it would have been the duty of the court, with, such record) evidence in the case, to have directed a verdict as it did. As the proof would have stood bad such record been received, we think plaintiff would have failed to establish his cause of action. The prima facie proof furnished by the records as to the weight of the flax, when delivered at its destination by defendant, was, we think, entirely overcome by the other evidence contained in the deposition of the witness Sutphin, the state weighmaster at Duluth, .wherein he testified, in substance, that the assistant weighers, under a rule in force in his department at the time the car in question was weighed, were required -to make a careful examination to see if there was any leak or defect in the car by which grain might escape, and to malee a notation on the records in case any such leak or defect is discovered, and that no such notation appears on his records, and that so .far tas 'his records indicate, this' car was in perfect condition when it came to his department. He also testified that the men under him are supposed to carry out his instructions, .and that be is very careful to see that they do. It is presumed that these instructions and rules were observed, and hence there is prima facie evidence in this deposition that the car was in perfect condition, and that there were no leaks. This testimony is corroborated by that of the plaintiff himself that he examined the car before and after loading it, and that it was a good car. He testified: “It was not a new car, but .it was a good car. It seemed to me to be all right. Although it wasn’t a grain car, I had no hesitancy in loading my flax into ift. I did not have ¡any anxiety afterT found out (that the car was 'Overloaded that some of the flax would leak out. I felt that the car was a good one any way. I examined it previously and was satisfied that it was good.” Plaintiff knew ¡when he accepted the car that it was not a grain car and was not provided with a grain door, and he accepted the same and prepared it himself for the shipment of the flax by placing boards across the doorways in place of the usual grain doors. There .is no evidence of an actual loss of any of this grain through defects in the car causing leakages, but on the other hand, the -proof tends to show the contrary. The only evidence of a loss at all, as we said before, is the discrepancy between the weights at Barlow and the prima facie weights at Duluth as- disclosed by the state weigh-master’s records. Plaintiff’s testimony therefore consists of a mere conclusion deduced' from two- facts, one of which rests wholly upon a prima facie presumption, and the other is by no means conclusively established. The flax was weighed by three different persons at Barlow, none of whom, so far as the evidence discloses, was familiar with the scales or with such work, land furthermore no proof was offered showing the correctness of such scales, except the testimony of the witness -Peterson, to the effect that they were in good order at the time, and the testimony of the witness College, who said: “All I know about the scales upon which I weighed this flax is that they were balanced right. I took it for granted that they weighed correctly. We conclude therefore that it would have 'been mere guesswork on the part of the jury -as to' whether or not any of this flax, and, if any, how much, was in fact lost in transit, as claimed by plaintiff, and hence the .plaintiff conceding the record to have been admitted, wholly failed to prove his cause of -action by a fair preponderance of the evidence. It is- at least just as probable, if ndt more probable, under the evidence, that all the flax placed in the -car was delivered by defendant, as that a portion thereof was lost in transit.

In conclusion, we hold that, while it was error for the trial -court to exclude the record testimony offered as to the weight of the flax at Duluth, the -ruling excluding the same in no manner prejudiced the plaintiff, -and hence, under the rule adopted by this court to- the effect that a reversal will not be ordered for error in excluding testimony when the plain-tiff, even /assuming that the excluded evidence is in the case, has failed to make -out his cause of action, the judgment should be affirmed. Brundage v. Mellon, 5 N. D. 74, 63 N. W. 209. See, also, 2 Enc. Pl. & Pr. 563, 499.

Judgment affirmed.

All concur.