DocketNumber: No. 7496.
Citation Numbers: 35 S.W.2d 229
Judges: McCLENDON, C.J.
Filed Date: 9/17/1930
Status: Precedential
Modified Date: 1/12/2023
Appeal from a judgment in favor of appellee upon a directed verdict in a suit for damages for personal injuries sustained as a result of appellant, a trespasser, being pushed off of a moving freight train of appellee by a brakeman.
This appeal presents two questions: First, whether the directed verdict was proper; and, second, whether the court properly excluded the testimony of two witnesses to the effect that under the printed rules of appellee it was within the scope of a brakeman's duties to eject trespassers from trains.
In this state, under the holding in International G. N. Ry. Co. v. Anderson,
We have carefully read the entire statement of facts in this case, and we find no evidence of such custom or practice, and no evidence of authority in brakemen to eject trespassers. The trial court, therefore, correctly directed a verdict for the defendant.
The evidence excluded was by deposition, one of the witnesses testifying that he had printed rules at home and could produce them at the trial. No notice was given by appellant to the appellee to produce the printed rules and no other effort so far as the record reveals was made to obtain them. The evidence was objected to at the time it was *Page 230 offered, but the objection overruled. After appellant had closed his case appellee renewed its objection to this testimony, and moved to strike it out. This motion was granted, and the ruling excepted to and assigned as error.
Clearly the ruling was correct, since the printed rules themselves, which formed the basis of the witnesses' testimony, were the best evidence, and parol evidence of their contents or effect was not admissible in the absence of a proper predicate for the admission of secondary evidence. Missouri Pac. Ry. Co. v. Lamothe,
The trial court's judgment is affirmed.
Affirmed.
"Where the nature of the action or defense, or the form or contents of the pleadings, give notice to the adverse party that it is fairly incumbent upon him, in his own interest, to be prepared to produce a particular instrument or writing, no other notice to produce the instrument is necessary before introducing secondary evidence of its contents." 22 C.J. 1060, § 1360.
This rule has been repeatedly followed in this state; the following cases presenting its various applications; Hamilton v. Rice,
The gist of plaintiff's action was compensation for an injury inflicted by a brakeman of defendant. The petition alleged:
"* * * That in so acting and in making such assault said brakeman was acting for and on behalf of the defendant railway company and was acting in the course of his employment and while transacting the defendant's business."
The alleged fact that the brakeman was "acting in the course of his employment" was an essential element to recovery, and the terms of the employment, if in writing or represented by printed rules of defendant, constituted one of the essential bases of plaintiff's suit; and while no express notice to produce was given, such notice we think was clearly implied under the above rule, which is thus stated in 10 R.C.L. 920:
"Notice to produce is always dispensed with, and secondary evidence allowed, when from the very nature and character of the suit the party must know that he is charged with the possession of the instrument. In such a case, the reason for giving notice and the necessity for giving it cease."
Furthermore, testimony excluded was by oral deposition taken some months before the trial, at which taking defendant was represented by counsel. Defendant was therefore cognizant of the testimony, and that it would be offered at the trial. It related to printed rules of the defendant for the government of its employees which necessarily must have been in its possession.
The following is from a note in 22 C.J. 1060:
"The object of requiring notice to produce an original document, before secondary evidence of its contents can be given, is to afford a sufficient opportunity to the opposite party to produce the writing and thereby secure, if he desires it, the best evidence of its contents, and is not to enable him to prepare evidence to explain or confirm the document. McDowell v. Ætna Ins. Co.,
The record clearly shows that such opportunity was afforded.
The motion for rehearing is granted, our former judgment is set aside, and the trial court's judgment is reversed and the cause remanded to that court for a new trial.
Motion granted.
Cause reversed and remanded.
In so far as appellant's brief is concerned, which is criticized in the same regard, the following quotation from Medearis v. Granberry,
"A rigid enforcement of the rules in reference to the preparation of briefs would deprive the appellants of consideration of most of the assignments of error relied on for reversal; but as the record shows that they are so poor as to be compelled to resort to a pauper's oath in order to prosecute their appeal, this court has, in the exercise of its discretion, considered the questions presented. * * *"
The motion for rehearing is overruled. Overruled.
Land Co. v. McClelland Bros. , 86 Tex. 179 ( 1893 )
I. G. N. Ry. Co. v. Anderson , 82 Tex. 516 ( 1891 )
Curlee Clothing Co. v. Lowery , 275 S.W. 730 ( 1925 )
Givens v. Turner , 225 S.W. 403 ( 1920 )
Ellis v. Sharp , 20 Tex. Civ. App. 482 ( 1899 )
Medearis and Wife v. Granberry , 38 Tex. Civ. App. 187 ( 1905 )