# Myers v. Moore-Kile Co.

> Court of Appeals for the Fifth Circuit · February 9, 1922 · 279 F. 233

URL: https://www.frixlaw.com/law-library/cases/8824577

## Case

- **Full name:** MYERS v. MOORE-KILE CO.
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** February 9, 1922
- **Citations:** 279 F. 233; 25 A.L.R. 1; 1922 U.S. App. LEXIS 1523
- **Precedential status:** Published
- **Opinion:** Concurrence by King
- **Judges:** King, Walker
- **Cited by:** 62 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8824577

## Opinion text

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 ,

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8824577. Public record. Not legal advice.