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but I do know it was an expressman.

I! The appellant contends that the evidence don't know where the trunk was taken.” | produced at the trial failed to show that No chrck or receipt for the trunk was ever the trunk and contents in question ever asked for or received by Ramsay or Mrs. came into the possession of the Seattle Gagle from the appellant or expressman Transfer Company by virtue of any contract who removed the trunk. The respondent or arrangement made or had with respondat that time was in Alaska. In the spring ent or in any other manner. The onus proof the year 1900 Young wrote Ramsay from bandi was upon respondent at the trial as Alaska, requesting him to go to the trans- to the issues tendered by him, above noted. fer company

and get his trunk, pay the The jury, having rendered a verdict in restorage charges, and send it to him. Ram- spondent's favor, must necessarily have say, pursuant to such request, went to the found that the trunk and contents came into office of appellant, and after diligent search appellant's possession by virtue of some conthe company was unable to find any trace of tractual relation entered into between some the trunk or its contents, either by con- agent of appellant and Mr. Ramsay, represulting its books or by searching through its senting the respondent. Verdicts of juries warehouse. Respondent testified that he as well as findings of courts, in determining left Seattle for Alaska in February, 1898, questions of fact, must be based upon testicorroborated Mr. Ramsay with regard to mony. Reidhead v. Skagit County (Wash.) leaving the trunk and contents with him, 73 Pac. 1118. Communications, when maand authorizing him to store same with ap- terial to the issues, through the medium of pellant; and testified, further, that he never the telephone, may be shown in the same at any time saw the trunk in the possession manner and with like effect as conversations of the transfer company; that he personally had between individuals face to face, but the had had no agreement with the company identity of the party sought to be charged concerning the trunk, but had left the mat- with a liability must be established by so

some ter in Ramsay's hands; that on his return from Alaska he went to the office of appel. It is not always necessary that the voice of

testimony, either direct or circumstantial. lant, and had a conversation concerning the the party answering, or of either party for trunk with Mr. Shaubut, in charge of the that matter, be recognized by the other in baggage departinent of the transfer company. Respondent testified:

such conversations, but the identity of the

“We went down into the storage room to see if witness person or persons holding the conversation, could pick out the trunk, and were unable in order to fix a liability upon them or their to find it. Mr. Shaubut claimed that the principals, must in some manner be shown. company did not have it.” The date of this To hold parties responsible for answers conversation and search was not definitely made by unidentified persons in response to fixed by Mr. Young, but Mr. Shaubut, testi- calls at the telephone from their offices or fying on behalf of appellant, said it was places of business concerning their affairs about one year prior to the trial of the opens the door for fraud and imposition, and cause, thereby fixing the date about June 12, establishes a dangerous precedent, which is 1901. On behalf of appellant, the testimony not sanctioned by any rule of law or princitended to show that no record was ever ple in ethics of which we are aware. made with reference to the trunk; that party relying or acting upon a communicathorough search was had, and no trace of it tion of that character takes the risk of esor its contents could be found; that the tablishing the identity of the person concompany in the month of August, 1898, did versing with him at the other end of the an extensive storage and transfer business; line. The able counsel for respondent argue that mistakes had sometimes occurred in that the case at bar presents the question as handling merchandise; that the three wit- to the weight of evidence; that, the jury nesses examined on behalf of appellant, who having found in respondent's favor on these were at that time agents and officers of the issues, the court will not interfere. transfer company, had no knowledge or rec- On that branch of the case relating to ollection of the communications over the communications over the telephone as evitelephone alleged to have been made by Ram-dence our attention is directed to volume 25, say, witness Shepard testifying that in the Am. & Eng. Enc. Law, p. 885, where the folmonth of August, 1898, he was clerk in the lowing language is used: “There may be office of appellant company, that it was his cases, however, in which the fact that the business to receive orders communicated voice is not recognizable, and that neither over the telephone, and that while he hap-party can be absolutely sure of the identity pened to be out of the office attending to of the person conversing with him, may the company's affairs someone else might necessitate the application of exceptional answer calls at the telephone.

rules." Several cases are cited in the foot

note in support of this proposition. Wolfement on Franklin avenue, the city of St. v. Missouri P. R. Co. 97 Mo. 473, 3 L. R. A. Louis, and another at his livery stable, on 539, 10 Am. St. Rep. 331, 11 S. W. 49, was Olive street; that witness was not certain an action brought by plaintiffs (respond- which number he called, but that his best ents) against the company (appellant) to recollection was that it was the Olive street recover damages for breach of a contract for number; that there was an answer from the the carriage and delivery of merchandise. defendant's number to the telephone call; At page 477, 97 Mo., page 540, 3 L. R. A., that he (the witness) did not know whose page 333, 10 Am. St. Rep., and page 50, 11 voice it was, and does not now know; that S. W., Barclay, J., delivering the opinion of the witness did not know the defendant's the court, observes: “In the progress of voice, and did not know the defendant, but thie trial the court admitted testimony of al. that he asked, through the telephone, if that leged conversations by telephone connected was Stahl (the defendant), and the answer with plaintiff's office, though the witness did was, 'Yes.' The witness was then asked to rot identify the voice he heard at their in- give the conversation then had through the strument." The opinion states subsequent- telephone with the party answering the call. ly that there was ample testimony to sup- In response to this question the witness tesport the finding of the trial court, and that tified, against the objection of the defendits instructions were correct. Then pro-ant, that he asked why defendant did not ceeds to remark: “A question arose inci- pay the bill for which this suit was brought, dentally at the trial upon the admission in and that the party answering said, 'All evidence of a conversation held through the right; I will attend to the matter about the telephone between someone at the instru- first of the month.' A previous witness had ment in plaintiffs' private office and the testified for the plaintiff to a conversation witness.” It is significant that the subject through the teleplione in a similar manner matter of the conversation is not discussed with the defendant, whose voice the former by the court. The language, in connection witness identified.” The court ruled that with facts of the case as shown by the de- the testimony was admissible. In that case cision, would imply that the alleged com- it appeared that the bookkeeper of respondmunication was not very material to the is- ent identitied Stahl by first inquiring if it sues. As the court remarked further on: were he who answered the call at the tele“The ruling here announced is intended to phone. Receiving an affirmative response, determine merely the admissibility of such he talked with Stahl about the debt for conversations in such circumstances, but not which suit was brought, though Stahl's the effect of such evidence after its admis-voice was not recognized. Still it should be sion.” In the controversy at bar appellant borne in mind that the alleged conversation does not question the admissibility of Ram-related to prior dealings had between the say's alleged conversations over the tele- parties to the litigation. It further appears phone with reference to the trunk, but con- that a previous witness had testified to a tends that they fail to connect appellant conversation had with Stahl over the telewith the transaction.

phone, who recognized the voice. The court The case of Globe Printing Co. v. Stahl, very properly held that the testimony was 23 Mo. App. 451, bears more directly on the admissible. While it appears in the case at propositions discussed by the respective bar that neither respondent nor Mr. Ramsay counsel in the case at bar. The action was had any previous dealings with the appelbrought by the printing company (respond-lant concerning the trunk in question, Rament) against Stahl (appellant) for the pur-say did not on either of the occasions named pose of collecting a debt. The facts appear make any effort to identify the party or parin the opinion of the court at page 452, and ties. The facts in the other cases cited by are thus stated: “The sole question which the author were so dissimilar to those prearises upon the record is whether the court sented in this controversy we deem it unerred in adınitting evidence of a conversa necessary to comment upon them. The retion had through a telephone between the spondent offered no evidence to supply "the plaintiff's bookkeeper and a person, who an- missing link” in that regard. The jury was swered to the defendant's name. The book permitted to guess, and base its findings keeper testified that he called up by tele. thereon, that some agent or employee of the phone to the general office of the Bell Tele-appellant answered witness Ramsay's comphone Company for defendant's number, and munications, or at least one of them; that was, by the central office, connected there in pursuance thereof an employee of the with; that the list of the telephone com- transfer company, who was unknown and pany showed that the defendant had two unidentified by the testimony, called and retelephones, one at his undertaking establish- | moved the trunk from the Yesler residence. This is not a question as to the weight of and for a new trial, that the verdict of the evidence, but one of failure of proof on ma- jury was not sustained by the evidence, that terial issues tendered by respondent and de. the judgment of the Superior Court should nied by appellant. A verdict based on such be rerersed, and the case remanded, with diconsiderations cannot stand. We are there. rections to dismiss the action; and it is so fore of the opinion that the trial court erred ordered. in denying appellant's motions for a nonsuit 63 L. R. A.



SHOWING the Changes, Progress, and Development of the Law during the Third Quar ler of the Judicial Year Beginning with October 1, 1903, Classified as Follows.



As to Liability of Public Officers, see infra, V.

Eminent domain.

That practically the whole capital of a The condemnation of private property for corporation is represented by patent rights the erection of public mills and machinery which are not subject to taxation is held not generally, without anything to show what to prevent the assessment against it of a is meant by a public mill, or anything to franchise tax regulated by the amount of give the public any interest in a mill after the capital which is employed within the it is erected, is held to be beyond the power state. (N. Y.) 87. of the legislature. (Ill.) 582.

Bankruptcy. That a particular use will be of benefit to Permitting a mortgagee to take possesthe public is held not to be, alone, sufficient sion of mortgaged chattels after the mortto make it a public use, within the meaning gagor has become insolvent, under an unof a constitutional provision that private recorded mortgage which had been in existproperty shall be taken only for public use. ence a long time, is held to be an act of (Wash.) 820.

bankruptcy under the act of Congress of A corporation organized to build a bridge 1898, and the preference thereby secured is is held to be entitled to exercise the powers held to be defeated by the institution of possessed by such corporations in a foreign bankruptcy proceedings within four months state in which it undertakes to do business after that time. (Mass.) 738. by consent of such state, including that of

Ferries. acquiring land for approaches and terminal The state of Ohio is held to have the right facilities by an exercise of the power of to establish ferries on the Ohio side of the eminent domain, although no such power is Ohio river, and to fix their charges for fer, expressly conferred upon it by its charter. riage over that river from Ohio to West (Mo.) 301.

Virginia. (W. Va.) 877.

The sprinkling of streets is held to be a
public purpose, within the meaning of a

The right of a state to require the delivconstitutional provision that taxes shall ery of interstate freight by one carrier to be levied only for such purposes.

another within its borders, in order that the

(Ky.) 655.

freight may reach a particular depot withThe obligation of a contract is held not in a certain municipality, is denied. (C. C. to be impaired by the taxation of a special

A. 6th C.) 213. franchise of a corporation. (N. Y.) 884.

The mere fact that a train is run by a The constitutional requirements of equal railroad company at the solicitation of a ity and uniformity of taxation are held not newspaper publisher, who agrees that the to be infringed by a statute permitting daily revenue shall amount to a certain mortgage indebtedness to the extent of $700 sum in consideration that he have the exto be deducted from the assessed value of clusive right to use it for the transportation real estate. (Ind.) 116.

of papers, is held not to make it a chartered The exemption of honorably discharged train, so as to enable the carrier to exclude soldiers of the Rebellion, citizens of the other publishers from its use, where it is state, from the provisions of a statute replaced on the regular schedule of the road, quiring peddlers to pay a license tax, is held and advertised to carry persons and propto be a denial of the equal protection of the erty generally the same as other trains. Jaws. (Vt.) 179.

(Tenn.) 150.



art. 5, § 3, providing that for voting pure Acceptance of a highway dedicated to pub- poses no person, while kept at an almshouse lic use is held to be effected by long-con- or asylum at public expense, shall, by rea. tinued user, without the necessity of formal son of his presence, be deemed to have acts of acceptance on the part of public gained a residence. (Kan.) 275. authorities, where the road dedicated is a

Liquor license. benefit to the public. (Ky.) 642.

A license to sell intoxicating liquors is Railroads.

held to confer no vested right upon the liAn electric railway to be operated be censee, and to be revocable before the expitween two cities in different states, and ration of the time for which it has been carry passengers and freight, is held to be granted, by act of the legislature, or by mua trunk railway, within the meaning of an

nicipal officers acting under statutory auexception of such railways from a constitu- thority, with or without notice to the li

(Nev.) 337. tional provision prohibiting municipal cor

Grant of tide lands. porations from granting franchises, except

The legislature is held to have the right to the highest bidder. (Ky.) 637.

to grant to the board of park commissionrs Telephone rates.

the title to the submerged land along the The right of a municipality having stat- shore of a navigable lake, so as to prevent utory authority to regulate the use of its the owner of the upland from constructing streets for telephone wires to impose, as a wharves out to the line of navigability with. condition to the use of such streets by a tel out their consent. (Ill.) 264. ephone company, the duty to furnish service

Municipal corporations. at specified rates, is sustained. (Md.) 727.

See also infra, V.
Medical attendance to minors.

The expense of erecting and operating The constitutional guaranty of religious plants for supplying water and electric freedom is held not to be violated by a stat- light for municipal use and sale to persons ute requiring the furnishing of medical at- residing in the municipality is held to be a tendance to minors, where the Constitution necessary one within the meaning of a conprovides that liberty of conscience shall not stitutional provision permitting a municipal justify practices inconsistent with the safe corporation to incur such expenses without ty of the state. (N. Y.) 187.

submitting the proposition to its voters. Free employment agency.

(N. C.) 870. A statute establishing free employment A statute providing that, whenever pero agencies to be maintained at public expense, sons desiring to remove any tract of land which forbids those in charge of them to fur- from the corporate limits of the city shall nish help to persons whose employees are on petition for such removal, it shall be made, a strike, or to mit them to have access provided that after published notice the to the names of applicants for service, while district court shall find that no public or expressly entitling other employers to their private right will be injured or endangered, services, is held to be void. (Ill.) 73. all considerations as to anỳ right of the city Saloons.

or its creditors to look to the property for A statute forbidding keepers of saloons to taxes being excluded, is held to be unconpermit women to enter them for the purpose stitutional, in that it attempts to confer of being supplied with liquor is held to be a legislative power upon such petitioners. valid (Colo.) 61.

(Kan.) 630. Schools.

Requiring air-brakes on street cars. A school law which classifies school dis- Before a municipal ordinance requiring tricts without adhering, either to the com

the equipment of street cars with air-brakes mon-law classification of municipalities, or will be declared unconstitutional, it is held to any method of classification that is ger. that it should be made clearly to appear mane to the purposes of the enactment, is that there is no necessity for a more efheld to be unconstitutional, as being a local fective brake than those in use, or that the and special law providing for the manage air-brake will not be so. (Mich.) 746. ment and support of free public schools.

Cutting weeds. (N. J. Err. & App.) 485.

Requiring one to cut weeds on his propVoters and elections.

erty is held not to be a taking of the propA member of the National Home for Dis- erty within the meaning of a constitutional abled Volunteer Soldiers is held not to be provision that private property shall not be deprived of the right to acquire a residence taken for private use, or for public use there for voting purposes, by Kan. Const. I without compensation. (Mo.) 778.

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