Wiseman v. N. P. R. R.

26 P. 272, 20 Or. 425, 1891 Ore. LEXIS 95

Opinion

Bean, J.

By section 691, Hill’s Code, it is provided that “there shall be no evidence of the contents of a writing other than the writing itself, except in the following cases: * * *

“2. When the original cannot be produced by the party by whom the evidence is offered, in a reasonable time, with proper diligence, and its absence is not owing to his neglect or default.” * * * This section is a declaration of the common law rule. The theory upon which secondary evidence of the contents of a writing is admitted is that the original writing cannot be produced by the party by whom the evidence is offered within a reasonable time by the exercise of reasonable diligence. The question is always one of diligence in the effort to procure the original. No precise rule has been or can be laid down as to what shall be considered a reasonable effort, but the party alleging the loss or destruction of the document is expected to show “that he has in good faith exhausted in a reasonable degree all the sources of information and means of discovery which the nature of the case would naturally suggest, and which were accessible tc him.” (1 Greenleaf on Ev. § 558; Simpson v. Dall, 3 Wall. 460; Johnson v. Arnwine, 42 N. J. L. 451, 36 Am. Rep. 527; Kelsey v. Hanmer, 18 Conn. 310.) Thus in Mariner v. Saunders, 5 Gilm. 117, the court says: “From the nature of the subject, there is some difficulty in laying down a general rule defining thb extent and vigilance of the search which a party must make before the court may conclude that the paper is destroyed or lost. As a general rule, however, we may say that when, from the ownership, nature or object o a paper, it has properly a particular place of deposit, or where from the evidence it is shown to have been in a particular place or in particular hands, then that place must be searched by the witness proving the loss, or the person produced into whose hands it has been traced. The extent of the search to be made in such place or by such person must depend in a great degree upon the circumstances. Ordinarily, it is not sufficient that the paper is not found in its usual place of deposit, but all papers in the office or place should be examined. On the whole, the court must be satisfied that the paper is destroyed and cannot be found. It is true, the party need not search every possible place where it might be found, for then the search might be interminable, but he must search every place where there is a reasonable probability that it may be found.” This rule is founded on reason and justice, and to require any less degree of diligence would be to defeat the object of reducing agreements to writing. As was said in Rankin v. Crow, 19 Ill. 629: “The party wishing to avail himself of the benefit of such secondary evidence should be required to make at least the same effort that it is expected the party would make if he were to lose the benefit of the evidence if the instrument were not found.”

The degree of diligence which shall be considered necessary, in any case, will depend upon the character and importance of the document, the purposes for which it is expected to be used, and the place where a paper of that kind may naturally be supposed to be found. If the document be a valuable and important one, which the owner would be likely to preserve, a more diligent search will be required than if the document is of little or no value. The purposes for which it is proposed to use it on the trial will also have an important bearing in determining the degree of diligence required. If the cause of action or defense is founded on the supposed writing, the party offering the evidence will be required to show a greater degree of diligence in the attempt to produce the original than if it is desired to be used as evidence in some collateral matter. The proof of search and proof of loss required is always proportionate to the character and value of the paper supposed to be lost. (American Life Ins. Co. v. Rosenagle, 77 Pa. St. 507.)

The existence and contents of the supposed contract, as well as the claim of defendant based upon it, is denied by the plaintiff in the case at bar. The issue thus being joined, its execution and contents were very material to defendant in establishing its defense. Indeed, defendant seeks to exempt itself from liability solely by reason of this contract. It admits having received as a common carrier plaintiff’s goods, and that while in its possession they were destroyed, but it seeks to escape liability by virtue of this contract. It then became of the utmost importance to both plaintiff and defendant that the original contract, if such a contract was made at all, be produced on the- trial, so that there might be no controversy as to its contents, and that the court might declare its legal effect to the jury. Before defendant should be permitted to give secondary evidence of its contents, it should prove that it had exercised the utmost diligence to procure the original (Smith v. Cox, 9 Or. 327), and this it failed to' do. No competent evidence whatever was offered to prove any search in the office of the traffic manager at Chicago, where' it was shown the document was most likely to be found. All that the witness Watts said about the supposed search was clearly hearsay and incompetent evidence. (Lawrence v. Fulton, 19 Cal. 683.) It did not in any way tend to prove that any effort had been made in the Chicago office to find the original paper. The testimony of the traffic manager, or some person in his office having the custody of such pápers, should have been had, or some proper effort made to obtain it, showing what effort, if any, had been made to find the original. Indeed, counsel for defendant did not seriously contend that it had brought itself within the rule concerning the admission of secondary evidence, if proof of the loss of the original is required, but he claimed that all that was necessary for defendant to do was to show that the original was in the possession of a person outside of this state, and that no further proof was required. That when it showed that the original contract was in Chicago, it was entitled to give secondary evidence of its contents without further proof, and in support of his position cites the following authorities: Burton v. Driggs, 20 Wall. 134; Gordon v. Searing, 8 Cal. 49; Beattie v. Hilliard, 55 N. H. 428; Brown v. Wood, 19 Mo. 475; Shepard v. Giddings, 22 Conn. 282; Ralph v. Brown, 3 Watts & S. 395; Gordon v. Tweedy, 74 Ala. 232, 49 Am. Rep. 813. The broad doctrine is stated in these authorities that if books or papers necessary as evidence in a court in one state be in the possession of a person living in another state, secondary evidence without further showing may be given to prove the contents of such papers. As we have already said in effect, each case must largely depend on its own particular circumstances as to what showing is sufficient in order to admit secondary evidence of the contents of a writing, and the language used in the cases above cited must be interpreted in the light of the facts of each case. None of these cases goes so far as to hold that where a defendant relies upon the contents of a writing to exempt himself from liability, and both the execution and contents of the supposed writing are denied, and the alleged writing is shown to be in the possession of a person outside of the state, that secondary evidence of the contents of such writing is admissible unless an effort is made to produce it. And besides, the doctrine stated in these authorities is denied by authorities of equal weight, and even by some of the same courts. Thus in Turner v. Yates, 16 How. 14, it was held that proof that an invoice of goods was in London was not a sufficient showing to admit secondary evidence of its contents in the circuit court of the United States for the district of Maryland, the court saying: “If the paper was in the hands of the consignees in London, secondary evidence was not admissible. If as parties, they were entitled to notice to produce the paper; if as third persons, their depositions should have been taken, or some proper attempt made to obtain it.” (Wood v. Cullen, 13 Minn. 394; Dickinson v. Breeden, 25 Ill. 186; McGregor v. Montgomery, 4 Pa. St. 237; Wharton on Ev. § 130.) The rule laid down in the authorities just cited we think is founded on reason and justice and imposes no hardship on the defendant. By defendant’s own showing, the last known place of deposit of the contract it claims plaintiff executed was in the office of the traffic manager in Chicago, and the law provides an easy and simple method of taking the deposition of a witness residing out of the state, and his deposition should have been taken, or some proper effort made to obtain it. The fact that the person to whose possession the paper was traced resided out of the state, did not excuse defendant from a diligent effort to procure it.

Judgment of the court below is therefore affirmed.