using evidence that a document was mailed in the regular course of business as proof that it was actually mailed
How later courts described this case
- using evidence that a document was mailed in the regular course of business as proof that it was actually mailed
- “a presumption that a letter was mailed may arise from the testimony of an officer of a corporation that he dictated and signed the letter and placed it in the regular course for mailing.”
- Texas law, but see Texas Employers Ins. Ass’n v. Wermske, supra note 6
Written by the judges who cited it.
The opinion
KING, Circuit Judge
(concurring). In the above-stated case the writer of the letter testified that he dictated the letter and handed it to his stenographer, whose duty it was to mail the same; that this was the custom of liis office. The addressees of the letter testified that it never reached thefti. The stenographer was not produced as a witness, and no reason for not calling her was offered.
I do not think her testimony as to her invariable practice in regard to addressing and mailing all letters would be only cumulative to the testimony of the writer of the letter. While that testimony proved the conduct and custom of the writer of the letter, it did not extend to the custom or conduct of the stenographer in carrying out her part in the mailing.
As an original proposition, I do not think the proof adduced would meet the requirement stated in the quotation from Knickerbocker Idle Ins. Co. v. Pendleton, 115 U. S. 339, 345 , 6 Sup. Ct. 74, 29 L. Ed. 432 ; nor would it be sufficient under the weight of authority, Gardam & Son v. Ballerson, 198 N. Y. 175 , 91 N. E. 371 , 139 Am. St. Rep. 806 , 19 Ann. Cas. 649; Goucher v. Carthage Novelty Co., 116 Mo. App. 99 , 91 S. W. 447 .
I concur in the judgment of the court upon the single ground that the sufficiency of the proof offered has been settled as a rule of evidence in Texas by the Supreme Court of that state. Bucher v. Cheshire R. R. Co., 125 U. S. 555 , 8 Sup. Ct. 974, 31 L. Ed. 795 ; Nashua Savings Bank v. Anglo-American Co., 189 U. S. 221, 228 , 23 Sup. Ct. 517, 47 L. Ed. 782 ,