Graham & Morton Transportation Co. v. Young , 117 Ill. App. 257 ( 1904 )

Mr. Presiding Justice Stein

delivered the opinion of the court.

Eirst. It was not necessary that there should be “ conclusive ” proof that the trunk was delivered to appellant, or was ever in its possession, or that there should be other proof in this regard than appellee’s possession of appellant’s check. It is sufficient for appellee to make out a prima facie case, and this she did by producing the check. The burden of proof was then upon appellant to show a nondelivery. Davis v. R. R. Co., 22 Ill. 278; C., R. I. & P. R. R. Co. v. Clayton, 78 Ill. 616; Hutchinson on Carriers, secs. 717 and 718.

Second. By its general agent in Chicago, appellant offered to show “ that it is not customary when exchanging checks from one transportation company to another to examine and see whether they have the baggage on hand or not.” Upon objection, the offer was excluded. Whether or not such 'custom existed was wholly immaterial. Ho other attempt was made or proof offered by appellant to show that it had not received the trunk; and the offer as made, standing by itself and not coupled with other proof,' was not competent for any purpose.

Third. Appellee testified that she packed the trunk and knew its contents; that she made a list of the articles within ten days afterwards, and did not put down on the list anything which she did not pack into the trunk; that the list set forth “ only those things that were in the trunk.” Over appellant’s objection the court permitted the list to be received in evidence and read to the jury. This was error. A party cannot in that way make evidence for himself. Nevertheless, the error is not of such a character as to warrant or justify a reversal. The witness had an undoubted right to refresh her memory from the memorandum. She, had a distinct recollection of the articles put into the trunk and of their respective values. Permitting the list to go into evidence was in substance and effect the same thing as if in answer to questions of counsel she had stated the artioles one by one by referring to the list and refreshing her memory from it.

Fourth. At the close of plaintiff’s evidence, the defendant moved the court to direct a verdict for it on the ground that she had not shown herself entitled to recover for the property in the trunk belonging to her son, and that there was no proof enabling the jury to distinguish between what was her property and what her son’s. The court thereupon allowed appellee to supply the missing proof and overruled the motion. This was a matter strictly in the discretion of the court, and no abuse of the discretion is shown.

The judgment appealed from is affirmed.

Affiw'med.