Opinion op the Court by
Judge Hobson.
Reversing.
In December, 1904, A. Mussellam delivered to tbe Southern Railway Company at Knoxville, Tenn., some boxes of oriental goods, to be shipped to himself at Danville, Ky. The railway company gave him a bill of lading for seven boxes, weighing 1,065 pounds. When the goods were delivered to him at Danville, there were only six boxes. The weight of these six boxes is not shown. The goods were carried by the Southern Railway from Knoxville to Harriman, and then delivered to the Cincinnati, New Orleans & Texas Pacific Railway, which.took them to Lexington, and from Lexington they were shipped back to. Dan-ville. They did not reach Danville until January 10th. [504]*504He brought this suit against both railways to recover for the loss of the seventh box, the contents of which he valued at something over $1,800. The defense to the action was in effect that only six boxes were in fact delivered at Knoxville to the Southern Railway., On the first trial of the case, the jury found for him, fixing the damages at $900. The court granted a new trial. On the second trial, the court gave a ■ peremptory instruction to the jury on all the evidence to find for the Cincinnati, New Orleans & Texas Pacific Railway Company, and, the case being submitted as to the Southern Railway Company, the jury returned a verdict in its favor. Judgment was entered on the verdict, and the plaintiff appeals.
Mussellam, for a week before the shipping of the goods, had been selling at auction at Knoxville goods which he had brought there from St. Louis. The proof for the defendant showed that he did not have at Knoxville the goods which be charged were in the box that was lost. It also showed that these goods could not have been put into such a box, that, after the auction was over, what goods he had left unsold were packed into seven boxes, which were hauled by the transfer wagon to the station. The driver of the wagon said that, when he reached the station, only six boxes were taken out of the wagon; Mussellam telling him that he would take the other box with his trunk as baggage. The agent who cheeked the boxes said there were only six, weighing 1,065 pounds; that he placed them in a Lexington ear and sealed the car with the Knoxville seal. The agent at Lexington testified that, when the ear reached him, the seal was unbroken; that he opened the car, and there were only six boxes in it, which he then had placed in the freight depot, and afterward reshipped to Danville. On the other [505]*505hand, Mussellam testified that this box was not opened at Knoxville, that it was delivered with the other six to the railway company, and that it contained the articles sued for, which the Knoxville witnesses knew nothing about. He not only received a bill of ladingj at Knoxville for seven boxes, but the waybill which went with the car called for seven boxes. Tim Cincinnati New Orleans & Texas Pacific Railway receipted to the Southern Railway for seven boxes, and sent a similar waybill to Danville. The agent at Danville receipted for the freight on seven boxes, weighing 1,065 pounds, “one box missing.”
1. The rule is settled that a receipt is not conclusive between the parties, but is only prima facie evidence of what was received. The receipt given by the railway companies for the freight specifying that there were seven boxes created a presumption that they received in fact seven boxes, and the burden of proof is on them to show that only six boxes were in fact received. They may show what was received, but, unless they show to the contrary, the plaintiff is entitled to recover upon his receipt. The instructions which the court gave the jury do not conform to this rule. The court under our practice should not tell the jury that the burden of proof is upon one of the parties, or that the presumption of law is against him; but the instructions should be so framed as to indicate the burden of proof without especially referring to it. tTnder the instructions of the court, the jury were directed to find for the plaintiff if they believed from the evidence that he had delivered the box to the Southern Railway. This placed the burden of proof on him of showing that he had delivered the box, while the receipt made out a prima facie case for him. The court should have instructed the jury that they [506]*506should find' for the plaintiff against the Southern Railway Company, unless they believed from the evidence that the plaintiff had not delivered- the box to it; and that they should find for him against the Cincinnati, New Orleans & Texas Pacino Railway Company, unless they believed from the evidence that the Southern Railway Company had not delivered the box to the Cincinnati, New Orleans & Texas Pacific Railway.
2. The court should not have instructed the jury peremptorily to find for the Cincinnati, New Orleans & Texas Pacific Railway Company. It had in writing receipted for seven boxes. It had in writing acknowledged that one box was missing. While these writings were not conclusive upon it, they made out a prima facie ease, and the credibility of the testimony explaining them away was for the jury. The agent at Lexington received no- waybill for these goods. The agent at Danville seems to have received two waybills which did not agree. The delay in getting the goods from Lexington to Danville is not fully explained. It is the province of the jury to determine from all the evidence whether the box was delivered to the Southern Railway at Knoxville, and, if it was, whether it was lost there or after the car reached the Cincinnati, New Orleans & Texas Pacific Railway Company.
3. The plaintiff offered to read in evidence the writing given him at Danville, and to prove that the agent there told him that one box was missing, and that it would be along in a few days. The agent was the representative of the railway company to deliver the freight, and what he said in delivering it, or as an excuse for not delivering it, is competent against the company. The weight of the evidence is for the jury. It should not have been excluded by the court. The plaintiff should also be allowed to read to the jury the [507]*507bill of lading received by him at Knoxville and the waybills which went with the freight. The writings are written documents made by the defendants, and are competent against them. While they are not conclusive, the credibility of the evidence explaining them on behalf of the defendants is for the jury. When, a paper is shown to be in the possession of the defendant, the plaintiff should, before the trial begins, notify the defendant to produce it on the trial, or procure a rule for the production of the paper. If the paper is not then produced, or is shown, to be lost, secondary evidence of its contents may be given. In this case there was no notice before the trial for the production of the papers, and no rule, so the court did not err in refusing to require the production of the papers by the defendant.
4. The plaintiff testified that the articles in the box were rugs of certain sorts and dimensions, of good quality and of certain value. He then introduced two witnesses who had dealt in such rugs, and testified they knew their value, and proposed to prove by them that rugs of the size and sort described by plaintiff of good quality were of the value claimed. The evidence was rejected, on the ground that the witnesses had not seen the rugs and did not know their quality.
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Opinion op the Court by
Judge Hobson.
Reversing.
In December, 1904, A. Mussellam delivered to tbe Southern Railway Company at Knoxville, Tenn., some boxes of oriental goods, to be shipped to himself at Danville, Ky. The railway company gave him a bill of lading for seven boxes, weighing 1,065 pounds. When the goods were delivered to him at Danville, there were only six boxes. The weight of these six boxes is not shown. The goods were carried by the Southern Railway from Knoxville to Harriman, and then delivered to the Cincinnati, New Orleans & Texas Pacific Railway, which.took them to Lexington, and from Lexington they were shipped back to. Dan-ville. They did not reach Danville until January 10th. [504]*504He brought this suit against both railways to recover for the loss of the seventh box, the contents of which he valued at something over $1,800. The defense to the action was in effect that only six boxes were in fact delivered at Knoxville to the Southern Railway., On the first trial of the case, the jury found for him, fixing the damages at $900. The court granted a new trial. On the second trial, the court gave a ■ peremptory instruction to the jury on all the evidence to find for the Cincinnati, New Orleans & Texas Pacific Railway Company, and, the case being submitted as to the Southern Railway Company, the jury returned a verdict in its favor. Judgment was entered on the verdict, and the plaintiff appeals.
Mussellam, for a week before the shipping of the goods, had been selling at auction at Knoxville goods which he had brought there from St. Louis. The proof for the defendant showed that he did not have at Knoxville the goods which be charged were in the box that was lost. It also showed that these goods could not have been put into such a box, that, after the auction was over, what goods he had left unsold were packed into seven boxes, which were hauled by the transfer wagon to the station. The driver of the wagon said that, when he reached the station, only six boxes were taken out of the wagon; Mussellam telling him that he would take the other box with his trunk as baggage. The agent who cheeked the boxes said there were only six, weighing 1,065 pounds; that he placed them in a Lexington ear and sealed the car with the Knoxville seal. The agent at Lexington testified that, when the ear reached him, the seal was unbroken; that he opened the car, and there were only six boxes in it, which he then had placed in the freight depot, and afterward reshipped to Danville. On the other [505]*505hand, Mussellam testified that this box was not opened at Knoxville, that it was delivered with the other six to the railway company, and that it contained the articles sued for, which the Knoxville witnesses knew nothing about. He not only received a bill of ladingj at Knoxville for seven boxes, but the waybill which went with the car called for seven boxes. Tim Cincinnati New Orleans & Texas Pacific Railway receipted to the Southern Railway for seven boxes, and sent a similar waybill to Danville. The agent at Danville receipted for the freight on seven boxes, weighing 1,065 pounds, “one box missing.”
1. The rule is settled that a receipt is not conclusive between the parties, but is only prima facie evidence of what was received. The receipt given by the railway companies for the freight specifying that there were seven boxes created a presumption that they received in fact seven boxes, and the burden of proof is on them to show that only six boxes were in fact received. They may show what was received, but, unless they show to the contrary, the plaintiff is entitled to recover upon his receipt. The instructions which the court gave the jury do not conform to this rule. The court under our practice should not tell the jury that the burden of proof is upon one of the parties, or that the presumption of law is against him; but the instructions should be so framed as to indicate the burden of proof without especially referring to it. tTnder the instructions of the court, the jury were directed to find for the plaintiff if they believed from the evidence that he had delivered the box to the Southern Railway. This placed the burden of proof on him of showing that he had delivered the box, while the receipt made out a prima facie case for him. The court should have instructed the jury that they [506]*506should find' for the plaintiff against the Southern Railway Company, unless they believed from the evidence that the plaintiff had not delivered- the box to it; and that they should find for him against the Cincinnati, New Orleans & Texas Pacino Railway Company, unless they believed from the evidence that the Southern Railway Company had not delivered the box to the Cincinnati, New Orleans & Texas Pacific Railway.
2. The court should not have instructed the jury peremptorily to find for the Cincinnati, New Orleans & Texas Pacific Railway Company. It had in writing receipted for seven boxes. It had in writing acknowledged that one box was missing. While these writings were not conclusive upon it, they made out a prima facie ease, and the credibility of the testimony explaining them away was for the jury. The agent at Lexington received no- waybill for these goods. The agent at Danville seems to have received two waybills which did not agree. The delay in getting the goods from Lexington to Danville is not fully explained. It is the province of the jury to determine from all the evidence whether the box was delivered to the Southern Railway at Knoxville, and, if it was, whether it was lost there or after the car reached the Cincinnati, New Orleans & Texas Pacific Railway Company.
3. The plaintiff offered to read in evidence the writing given him at Danville, and to prove that the agent there told him that one box was missing, and that it would be along in a few days. The agent was the representative of the railway company to deliver the freight, and what he said in delivering it, or as an excuse for not delivering it, is competent against the company. The weight of the evidence is for the jury. It should not have been excluded by the court. The plaintiff should also be allowed to read to the jury the [507]*507bill of lading received by him at Knoxville and the waybills which went with the freight. The writings are written documents made by the defendants, and are competent against them. While they are not conclusive, the credibility of the evidence explaining them on behalf of the defendants is for the jury. When, a paper is shown to be in the possession of the defendant, the plaintiff should, before the trial begins, notify the defendant to produce it on the trial, or procure a rule for the production of the paper. If the paper is not then produced, or is shown, to be lost, secondary evidence of its contents may be given. In this case there was no notice before the trial for the production of the papers, and no rule, so the court did not err in refusing to require the production of the papers by the defendant.
4. The plaintiff testified that the articles in the box were rugs of certain sorts and dimensions, of good quality and of certain value. He then introduced two witnesses who had dealt in such rugs, and testified they knew their value, and proposed to prove by them that rugs of the size and sort described by plaintiff of good quality were of the value claimed. The evidence was rejected, on the ground that the witnesses had not seen the rugs and did not know their quality. The dimensions, description, and quality of the rugs being shown, it still remained to show their value. One witness may show the dimensions of the rugs, another their quality, a third their description, and a fourth, who is an expert, may testify what the things thus described are worth'in the market. Expert testimony is not confined to opinions as to what the witness has seen, but is oftener given as to matters described to the witness. If expert testimony as to the value of lost articles were confined to persons who had seen [508]*508them, the jury might be often misled, for the persons who have seen them may be much mistaken as to their value, although entirely accurate as to what the things are. The evidence here offered, while not of great weight as the case stood, should have been admitted, as it served to establish a material fact in the case. The plaintiff should also have been allowed to prove that the goods he claimed could be.packed in a box of the size of the one in controversy. The defendants had given evidence that the goods could not be put in such a box, and he should have been allowed to prove by himself and two other witnesses that he had packed in-their presence goods of the same description and amount as those in controversy in a similar box.
5. The testimony of George Alexander and wife was properly rejected. They only testified to seeing the plaintiff at the St. Louis fair in possession of oriental goods similar to those said to be in the box, but they do not show that he then owned the goods. On the contrary, their evidence shows he was only a salesman selling the goods for another person. The law requires the best evidence, and the mere fact that he was in possession of such goods at St. Louis proves nothing material to the case.
6. Mussellam should have been allowed, while testifying in chief, to state where he had lived, and what business he had followed, so as to give the jury a better idea of who the witness was, and what weight should be attached to the opinion evidence which he gave. He should also have been allowed, while on the stand in rebuttal, to tell what took place between him and the driver when the goods were taken to the station, in so far as the driver had testified to any statements then made by him. He offered to testify that'he did not tell the driver to leave one of the boxes [509]*509in the wagon, and, as the driver had testified to this for the defendant, he should have been allowed to testify that he did not make the statement attributed to him by the driver.
7. The defendants should be allowed to prove that, when a car was shipped through, the waybill to Harriman was made out from the waybill which- accompanies the ear, and not from an inspection of the contents of the car where the car was sealed. This evidence would serve to explain how it was that the Cincinnati, New Orleans & Texas Pacific Railway receipted for seven boxes. In the same manner, proof was properly allowed as to how and under what circumstances the receipt for seven boxes was made out at Knoxville.
8. The weight of the evidence sustains the verdict of the jury in favor of the defendant; but, in view of the whole record, we conclude that the plaintiff did not have a fair trial before the jury on the merits of his case, and that, as he is entitled to a jury trial and a fair trial, a pew trial should be awarded. We see no reason for disturbing the action of the circuit court in granting a new trial after the first trial of the case. Circuit courts have a wide discretion as to new trials, and much greater effect is given to the order of the circuit court granting a new trial than to one refusing a new trial, for the reason that he is upon the ground, and that, when he concludes that the ends of justice require a new trial, this court will not interfere with his discretion, unless it is palpably abused.
Judgment reversed, and cause remanded for a new trial and further proceedings consistent herewith.
Petition for rehearing by appellee overruled.