
    SCHAFF v. HOLMES.
    (No. 1521.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 22, 1919.)
    1. Teial &wkey;>251(3) — Instruction on issue
    NOT MADE BY PLEADING ERRONEOUS.
    In an action for damage to a shipment of cattle, an instruction on detention of cattle in cars without food, water, or rest was error, where there was no such issue raised by the' pleadings.
    2. Evidence <&wkey;489 — Evidence op loss in
    MARKET VALUE TO LIVE STOCK SHIPPER.
    In hn action against a carrier for damages for delay in shipment of cattle, where the issue was as to market on the day of arrival and day when they should have arrived, and witness stated he knew, he could state the difference.
    3. Appeal and error &wkey;>742(4) — Statement
    FOLLOWING ASSIGNMENT NOT GOOD 'WITHOUT
    EVIDENCE ON QUESTION.
    In an action for injuries to shipment of. live stock, an assignment of error that account sales were admitted in evidence without preliminary proof need not be considered, where statement following assignment does not show what evidence was given in reference to account sales, and hill of exceptions is in same condition.
    4. Evidence <&wkey;31,8(l) — Account of sales
    HEARSAY EVIDENCE OF INJURY TO CATTLE IN
    TRANSIT.
    In an action against a carrier for damages resulting from delay in shipment of live stock, the account sales was /inadmissible as hearsay; the entries and declarations therein being those of living third parties, and not of witness, and there being no testimony to their being made in professional, official, or other duty.
    Appeal from Baylor County Court; Nat G. Mitchell, Judge.
    Suit by H. E. Holmes against the Wichita Valley Railway Company and O. E. Schaff, receiver. From judgment against him, the defendant receiver appeals'.
    Reversed and remanded as to the receiver, and’affirmed as to the other defendant.
    Martin, Bullington, Boone & Humphrey, of Wichita Falls, and Dickson, Kenan & Newton, of Seymour, for appellant.
    Bert King, of Wichita Falls, for appellee.
   HUFF, C. J.

Holmes sued in the county

court of Baylor county the Wichita Valley Railway Company, C. E. Schaff, as receiver of the Missouri, Kansas & Texas Railway Company and the Missouri, Kansas & Texas Railway Company of Texas, for damages to a shipment of cattle from Bomarton, Baylor county, Tex., to Kansas City, Mo. The negligence charged was a delay of 24 hours over the schedule or usual time for the shipment and the negligent and rough handling of the cars, so that the cattle were damaged and injured. There is no allegation that the appellant refused to unidad, feed, water, and rest the cattle, as required by the statute. Upon the verdict of the jury in answer to special issues the court rendered against Schaff, receiver, $195, and the juiy found nothing against the Wichita Valley Railroad Company, and no judgment was entered against it.

The first assignment will not be considered over appellee’s objection, in that the assignment in the brief is not a copy of the assignment filed in the court below, but a reconstructed assignment. See Schaff v. Fancher et al., No. 1520, 215 S. W. 861, handed down by this court.

The second assignment urges there was error in giving appellee’s requested charge, which instructed the jury that if they found “that the cattle in the shipment in question in this case were held in the cars for an unreasonable length of time without being unloaded for feed and water and rest, and that áuch act, if any, was due to the negligence of defendants,” and that by reason thereof the cattle sustained injury, they would find for plaintiff such damages by reason of such negligence in respect to any of the matters submitted in the issues submitted by the court. The objection urged to giving the charge was because there was no pleading justifying or warranting such charge. As stated above; there was no allegation charging a failure to unload for feed, water, and rest. While appellant does not assert error in submitting special issues on this point, we find that the appellees requested such issues, and the court asked the jury if the appellants kept the cattle on the cars for a longer period than 28 hours without unloading for feed, water, and rest, which the jury answered in the affirmative, and also if the appellants kept the cattle in the cars without unloading, etc., for a longer period than 36 hours. If so, how long ih hours? The jury answered, “Ves, six hours.” The pleadings presented no such issues, and it was error to submit them. We are unable to say this charge did not influence the jury in finding damages and the amount thereof. The charge should not have been given, nor the issues submitted as above pointed out under the issues made by the pleadings.

The third assignment is not properly briefed, and should be disregarded. However, the answer of the witness -to the interrogatory as to the general condition of the market in the latter part of the week and the reason therefor perhaps was immaterial. The issue was: What was the market on the days inquired about? The witness stated he knew, and we think he could give the difference. The objection that he does not there state what market he was referring to, whether New York, Chicago, or somewhere else, we think not well taken. The witness shows what market he was buying on, and where and when the cattle were purchased. At this place, perhaps we should state the market value of cattle, etc., has to be ascertained by inference and not by direct testimony. The case was not fully developed. The assignment does not, however, present such error as would require a reversal.

The fourth assignment is to the action of the court in permitting the introduction of the account sales, as evidence, which was attached to the deposition of Le Bow, on the ground it was not shown to be a true and correct account of the actual facts as they existed, except as'to the weight of the cattle and to all other portions thereof objections were urged. The account sales shows and gives the names of the purchasers, the kind of cattle, and the number, the weight, price per hundred, and the total amount. The objection appears also to apply to the unloading certificate, which gives the car numbers and the initials, the weight of the ear, the rate, amount of freight, freight charges, yardage, pounds of hay, commission on sales, etc.

Under the statement following the assignment we might assume the trial court found that the necessary preliminary proof was made for the introduction of the account sales, and the unloading certificate. As the statement does not show what the evidence was with reference to keeping the account or entering it upon the books, or in making out the account sales, or whether there was any testimony as to its correctness, and the bill of exception is in the same condition, there is nothing shown in the statement or the bill of exception other than the account sales and the objection made. But as we have concluded to reverse the case under assignment No. 2, we will give our views as to the admissibility of the account. The witness C. L. Le Bow, was the cattle salesman, who sold the cattle as an employé of the commission company. He does not testify as to the grades of the cattle, number, the price for which they sold or their market value, or any other item shown in the two instruments, the account sales and unloading certificate. Appellee introduces the account sales upon the following predicate taken from Le Bow’s testimony:

“As requested, I am attaching a copy of the account sales (marked Exhibit A, by the notary for .identification), covering this shipment also unloading certificate (marked Exhibit B by the notary for identification), showing the time these cattle were unloaded. The copy of the account sales attached is a true and correct copy, and shows the correct weights of the cattle. The said copy of the account sales attached was taken from the books of the National Live Stock Commission Company, that are kept in the regular course of the business of selling cattle. The entries made on the account sales were made by one of our bookkeepers, and it is our custom to have such entries made directly after, and from the data furnished by the weighmaster. This account sales and the record hereto attached was handled every way in the usual manner of our company.”

This is all the evidence as to the correctness of the account. The account sales, as will be seen from • the evidence above, was inadmissible, and is in that class of eases holding that it is hearsay. Railway Co. v. Startz, 97 Tex. 167, 77 S. W. 1; Railway Co. v. Cauble, 41 Tex. Civ. App. 348, 91 S. W. 244; Railway Co. v. Leggett, 99 S. W. 176; Id., 86 S. W. 1066; Railway Co. v. Curtis, 190 S. W. 837; Texas Glass Co. v. Reese, 187 S. W. 723; Randle v. Barden, 164 S. W. 1063. 1 The evidence introduced does not fall under the shop book rule. But the account sales, in cases of this kind, falls under the exception, admitting entries made by third parties unconnected with the controversy. The rule, or the exception to the hearsay rule, apparently is that entries and declarations of third parties made in books, minutes or memoranda in writing in the usual course of business and in the discharge of professional, offidial, or other duty, and made at or about the time when the fact they record took place, are admissible on proper preliminary proof after the death of the person who made the entry. Elliott on Evidence, vol. 1, §§ 479, 480, et seq.; I-Heidenheimer v. Johnson, 76 Tex. 200, 13 S. W. 46. However* there are jurisdictions which hold that entries are admissible when the entrant is absent from the jurisdiction, but in some jurisdictions — and we believe in this state — when the person making the entry is still living and such entries have all the requisites except the death of the declar-ant, and in addition are authenticated by oath of the declarant, they are held admissible. In such cases the entries should be made by persons having knowledge of the facts, or in those" cases 'where two or more persons have combined in making the entry, one or more reporting the fact and another writing it down, the entrant may testify to its correctness. See Greenleaf on Evidence (16th Ed.) p. 206; Underwood v. Parrott, 2 Tex. 168. And the courts holding books are admissible, even though the entrant is alive, require the living person who made the entry be called, or his deposition taken. Chaffee v. United States Book, 18 Wall. 516, 21 L. Ed. 908. It is sufficient if he then states the entries are correct, and were made in the regular course of business and on the discharge of his duty, and entered at the time they purport to have been made. Shove v. Wiley, 18 Pick. (Mass.) 558; Moots v. State, 21 Ohio St. 653. The most satisfactory discussion of this class of evidence that we have been able to find is by Judge Fisher in Railway Co. v. Startz, 94 S. W. 207, where the authorities are collected and reviewed. If the witness Le -Bow had used the account sales to refresh his memory and testified to their correctness, we doubt not but the account sales would have been admissible. If the bookkeeper making the entry had testified to the correctness of the items and their entry in the course of his' duty at the time the facts occurred, and in the regular course of business, the entries thepselves, would be admissible, and especially would this be true if the salesman and bookkeeper used, the account sales to refresh their memory, and testified to its correctness. Startz Case, supra. In this case the salesman Testified as to the correctness of the weights. If he had testified, as did the witness Overstreet in the Startz Case, there would have been no error in admitting the account sales, perhaps. But in this case the witness discloses he did -not make the entries, but they were made by another. Just how and when they were made is not shown — whether from the personal knowledge of the entrant, or from reports to him by the salesman or weigher; whether from oral statements, or from tickets furnished. And there is no testimony as to the correctness of the account sales or unloading certificate, only that it is a correct copy, presumably of the original entries. We believe the court was in error in admitting in evidence the account sales and the unloading certificate.

Assignments 5 and 6 present no reversible error, and will be overruled.

The judgment as to the receiver, Schaff, will be reversed and remanded, but affirmed as to the Wichita Valley Railway Company, not appealing, and there are no cross-assignments as to the judgment in its favor. 
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