LEE 'MILES ARK.] 'CHICAGO, R. I. & P. RY. CO. v. GREER. 101 CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. GREER. 4-2941
Opihimi delivered March 27, 1933. 1. APPEAL AND ERROR—SUFFICIENCY OF EVIDENCE.—A bill of exceptions showing that it Contained all of plaintiff's testimony and that defendant introduced no testimony held to be sufficient. showing that it contained all of the evidence. 2. APPEAL AND ERROR—FILING MOTION FOR NEW TRIAL.—Showing by the record that the motion for new irial was overruled on the, day the trial was had showed that the motion was . filed on the. day the judgment was rendered and .within . the . required time limit. 3. E VIDE N CE— HEARSAY.—In • a shipper's suit_ against a carrier for damage to freight, a letter of the carrier's superintendent advising the shipper about facts which be learned from the agent at destination held incompetent as hearsay. 4. EVIDENCE—LETTER OF THIRD PERSON.---4 consignee's letter to a shipper concerning the condition of a shipment on its arrival was inadmissible in the shipper's suit against the carrier for damage to the shipment. 5. APPEAL AND ER ROR—NECESSITY OF MOTION FOR NEW TR IAL.—Alleged error in the admission of evidence is waived unless assigned - as error in the motion for new trial.: „ . 6. CARRIERS—NE GLIGENCE—BURDEN OF PROOF. — Evidence showing that a shipment was received in goad order and a letter of the delivering carrier's agent showing that the shipnient arrived in a damaged condition makes a prima facie case against the initial carrier, so that the carrier has the burden to negative negligence in handling the shipment. .
1:62 CHICAGO, R. I. & P. RY. C-0. V. GREEE. [187 7. CARRIERS—SUFFICIENCY ' OF EviDENCE. Where the carrier fails to sustain the burden of disproving negligence in handlibg freight, a verdict for the plaintiff will be sustained. Appeal from Arkansas Circuit Court, Northern District ; W. J. Waggoner, Judge ; affirmed. Geo. B. Pugh and Thos. AS. ' Buzbee, for appellant. Ingram ct Molter, for appellee. MEHAFFY„J. Tbe appellee, in December, 1931, delivered to the appellant, Chicago, Rock Island & Pacific Railway Company, a gasoline underground tank in good order, of the value of $50 consigned to A. L. Fuqua at Brewton, Alabama. Appellee brought suit in the justice court, alleging that said tank was damaged by the negligence of appellant and was refused by the consignee at destination; that the damage was such as to render , the tank worthless. • Appellant did not appear in the justice of the peace court, and judgment was rendered against it for the amount sued for: An 'appeal was prosecuted , to the circuit court, where the case was tried, and the jury returned verdict for $50, and judgment was 'entered accordingly. The case is here on appeal. .The appellee contends that-the bill of exceptions does not show that it contains all of the evidence. We do not agree with the appellee in this contention. The record shows that the appellant did not offer any proof, and _tile record als6 contains the following stateMent : "The foregoing was all of the testimony introduced by the plaintiff." If the recOrd shows that it contains all of the testiMony introduced 1:;37 plaintiff, and also shows that. defendant did not introduce any testimony, this is a. sufficient showing that the . bill of . exceptions contains all of the evidence. • Appellee a/ lso contends that the record does not show when the motion for new trial was filed. The statute requires a motion . for • new trial to be filed within three days. The record shows that the trial was had on AugUst 10; 1932, and the r -ecord also shows that the motion for new trial was overruled on August 10th. It
ARK.] CHICAGO, R. I..& P. RY. CO..v; GREER. 103 therefore must have been filed , on -the same day the Judgment was rendered, and was overruled the same .day. Several letters were introduced in evidence over the objection of appellant.. The first letter was one Written by W. 0. Bunger, superintendent of freight claims.. The objection made to this lette-i was that it was hearsay. The writer advised the appellee about facts which be stated he learned from the agent at deStination. Appellant's contention is correct. This letter was incompetent because. it purported to state what another party 'had told Bunger. • • The next letter introduced and objected to was from W. 0. Bunger to the appellee, but the statementS in this letter were also about facts *not within tbe knowledg of the writer. This letter was . imprOperly admitted in evidence over - the objection of the appellant.. The next letter objected , to . was a letter from the consignee to the appellee... The Consignee; Fuqua, could of course have testified -as to the condition of the tank when it arrived at Brewton, but a letter written by him was not competent. Tbe appellee should have taken - Fuqua's testimony, and tbe other party . should have had an opportunity to cross-examine him. There was a letter introduced, however, written on the letterhead of the Louisville & Nashville Railroad Coinpany, and addressed tO the agent of appellant at Stuttgart, Arkansas, and signed by S. A. JaCkson, agent. This letter shows . that the agent at Brewton had received a letter on the Gth with reference ° to the shipment , of the tank, and this letter of the agent- at . Brewton was in response to the letter written by appellant's agent. It shows that the tank was in. bad condition when it arrived at its destination. • In appellant's motion for a new trial, it did not assign as error the court's tiding . in permitting UPs . letter to be read as evidence,-andas objection to this -letter is therefore. waived. The undisputed eVidence shows -that this • Jank was -delivered in good order. Mr. J. M. Grimes, ' the freight agent for appellant at Stuttgart, testified as to having received the tank from appellee for shipment to . Brew"-
ton, Alabama. He made out the bill of lading. The bill of lading which was introduced showed that the tank was in good- order when delivered to the carrier. There was no notation on the waybill that there were any holes in the tank. This witness also testified about the claim havin ff been presented to him, but he was unable to say whether the letter signed by Jackson which he received was written by the agent of the delivering carrier. • The tank having been received in good order, and the letter of the agent of the delivering carrier showing that it arrived at its destination in bad order—in a damaged conditionmade a prinia f acie case, and the burden was then upon appellant to . show that it was not negligent in handling the shipment. Appellant offered no evidence at all, or no explanation, and the evidence introduced by• appellee was sufficient to justify the Sury in finding for the appellee. The judgment is' affirined.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.