Davis v. New York, Ontario & Western Railway Co.

COLLINS, J.

This was an action brought to recover for an alleged injury to a quantity of lemons, delivered to defendant company at Weehawken, New Jersey, to be transported to Minneapolis by it and its connecting carriers. A verdict for one thousand dollars was rendered against defendant, and its appeal is from an order denying a motion for a new trial. A new trial must be had because of erroneous rulings by the court below when receiving testimony.

It appears that at the time these lemons were delivered to defendant company, as initial carrier, one J. C. Anderson was its general freight agent, with his office in New York. At the same time one W. L. Martin was the general freight agent, and one A. H. Bode was the freight claims agent, of the “Soo Railway Line,” the terminating carrier, both having offices in Minneapolis. As soon as the lemons (two car loads) reached their destination and their damaged condition was discovered, Martin wired Anderson, notifying him of the fact and asking advice. Anderson replied to this telegram. Then Bode, as freight claims agent, wrote Anderson a letter in which he severely denounced the defendant company in respect to the manner in which the lemons were loaded upon the cars and asserted that, unless other methods were adopted, large claims for damages would have to be paid. To this letter Ander *43 son, as defendant’s general freight agent, replied, referring to two cars of lemons, with, Weehawken waybills numbered 515 and 516. Bode, as freight claims agent, again wrote to Anderson in respect to the damages; and in reply the latter, on defendant’s behalf, insisted that the lemons were properly loaded and that no injury had resulted for which his company would be liable. It was shown by oral evidence at the trial that Martin and Bode were in fact acting for plaintiff’s assignors when corresponding with Anderson, although there was nothing in the correspondence indicating the fact.

At the trial plaintiff’s counsel called defendant’s attorney as a witness, questioned him about these telegrams and letters, and, upon the admission that they were in his possession, obtained a ruling of the court compelling him to produce them. Later plaintiff’s counsel introduced them in evidence. The order for their production and the subsequent introduction in evidence was strenuously resisted and objected to by defendant’s attorney on the ground that while in his possession they were privileged communications,— writings which had been intrusted to him in his professional capacity by his client, the defendant, — and, under well-settled rules of evidence, he could not be compelled to produce them or to disclose their contents.

If all of these writings had been intrusted to the attorney by his client, the rule laid down in Stokoe v. St. Paul, 40 Minn. 545 , 42 N. W. 482 , if correct, would have been applicable to all. It was there said, in substance, that an attorney is not obliged to produce a writing intrusted to him by his client or to disclose its contents, without the client’s consent. That was a case where one of the attorneys for defendant railway company had in his possession, it was supposed, an alleged release for plaintiff’s claim for damages, which the latter’s counsel wished to have produced; and, where the rule is invoked, no distinction can be pointed out between such a writing as a release, and a part, at least, of the writings herein involved.

But from the testimony of counsel it appeared that a part only of these papers were placed in his hands by defendant, and, even to reach the conclusion that a part had been intrusted to him by *44 his client, we have to indulge in a presumption. According to the evidence, all of these papers were delivered to counsel by an attorney named Bradish, formerly employed in this action by defendant, but for whom the witness had been substituted. The latter had no means of knowing, nor did it appear, where Bradish obtained the writings; but the presumption is that they came into his hands from those who were entitled to possession, and with whom we should naturally expect them to be found. It is therefore to be presumed that the telegram addressed to Martin and the letters addressed to Bode were delivered to Bradish by the officers of the Soo line, not by defendant, and also that the telegram and letters addressed to Anderson were intrusted to Bradish by the officials of his then client, this defendant, and by no other person. These being the presumptions, it is obvious that, as to the telegram and letters last mentioned, the court ruled incorrectly when it compelled counsel to produce them, that they might be introduced in evidence. That their contents were prejudicial to defendant’s cause is beyond question, when we consider the admissions therein contained, and, further, that without them the communications addressed to Martin and Bode would have had little weight as evidence.

On the presumption that the communications just mentioned were delivered to Bradish by the Soo line officials, they were not privileged. The rule does not extend to facts or writings obtained by attorneys from other sources than their clients, or from third parties, whether strangers or opponents. Weeks, Attys. 324, 327. It must not be understood from what has been said that there is, in our opinion, no way in which the contents of these communications could properly be put in evidence. We are of a contrary •opinion.

In view of another trial, it is not improper for us to refer to the question of damages. The bill of lading introduced in evidence, there being a number of connecting carriers, contained a stipulation that no carrier should be liable for loss or damage to the •described property not occurring on its own road or its portion of the through route, and a further stipulation that the amount of any loss or damage for which any carrier became liable should be computed at the value of the property at the place and time of ship *45 ment, unless a lower value had been agreed upon. This last condition is identical with that considered in Shea v. Minneapolis, 63 Minn. 228 , 65 N. W. 458 , and which was there held to be unjust, unreasonable, and contrary to public policy, because of the fact that freight charges paid or incurred by a consignee had been ignored. On the argument of that case there was no suggestion that the condition could be cut down or construed so as to uphold it.

On further reflection and consideration, we are of the opinion that, in a condition of this nature, there is nothing which excludes from a computation of damages such sums as may have been paid or incurred by a consignee as transportation charges. The condition is simply that the amount of any loss or damage shall be estimated and fixed at the value of the property at the time and place of shipment, and, in the absence of some such special contract, the measure of damages is settled by the value at the place of destination, charges for transportation entering into the computation. 3 Sutherland, Dam. (2d Ed.) §§ 906, 918, 923, 932; Hutchinson, Carr. (2d Ed.) § 770a. If it had been specially provided that the measure of damages in case of loss or injury was to be determined by the value of the property at the place of destination, or if the bill of lading had been silent on the subject, no one would have .insisted that freight charges should be excluded from consideration. So, if transportation charges paid or incurred by or on behalf of the consignee, or earned by the carriers, but not paid, are to be taken into consideration, we cannot say that the condition is on its face unjust or unreasonable, or opposed to public policy.

The defendant requested the trial court to charge the jury that, if they found for plaintiff, they would first ascertain the total damages, and then determine what proportion of this damage occurred upon defendant’s road, which extended from Weehawken to Oswego, New York; their verdict to be for only such part of the total damage as occurred on defendant’s road. This request was properly refused. If the damage resulted, as plaintiff claimed, from the unskillful, improper, and negligent manner in which defendant’s servants piled the boxes containing the lemons in the cars in which they were brought to Minneapolis, defendant company would be liable for the total damage. The deterioration in the quality of the *46 lemons would be continuous and progressive from one end of the entire route to the other, so that, in a certain sense, injury and loss occurred after the cars had been delivered by defendant to its connecting carrier at Oswego; but the primary, proximate cause of the total damage was the defendant’s negligence, and therefore it is liable to the full extent of that injury which was the natural result of its negligence.

Order reversed.