February 16, 1924. The opinion of the Court was delivered by These cases were heard together, marked A and B.
The exceptions in case A are:
"First Exception. It is respectfully submitted that his Honor, the trial Judge erred in admitting, over the objection of the defendant, the testimony of the witness Boller; the error being that the testimony was given from a memorandum made by a person other than the witness, was hearsay testimony, and was incompetent.
"Second Exception. It is respectfully submitted that his Honor, the trial Judge, erred in failing to strike out, upon the motion of the defendant, the testimony of the witness Boller that was not based on the witness' own recollection, but on a memorandum made by some other person."
These exceptions must be sustained under the authority of Gwathmey v. Foor Hotel Co., 121 S.C. 237;113 S.E., 688, and Copeland Co. v. Davis (S.C.), 119 S.E., 19; but inasmuch as there is enough evidence without this to sustain the verdict of the jury, we are of the opinion that the admission of this evidence was not prejudicial, and the judgment should be affirmed. *Page 3
The exceptions in case B are:
"First Exception. Because it is respectfully submitted that his Honor, the trial Judge, erred in overruling the motion of the defendant to strike out the testimony of the witness Aaron Levy as to the price at which the material was sold; the error being that the witness having testified that he did not, of his own knowledge, know the price, he could not thereafter testify as to that price from memoranda made by some other person.
"Second Exception. Because it is respectfully submitted that his Honor, the trial Judge, erred in refusing to grant the motion of the defendant for a nonsuit that was made on the ground of failure of plaintiff to prove the condition of the vegetables at the inception of transportation; the error being that the motion should have been granted because the burden is on the plaintiff to show that the alleged damage to the vegetables was caused by the railway company, and there is no presumption that damage occurred in transit."
These exceptions are overruled. The witness Aaron Levy testified sufficiently of his own knowledge independently of the memorandum, to carry the case to the jury; his Honor committed no error in so ruling; there is ample evidence to sustain the verdict of the jury.
The judgment in both cases is affirmed.
MESSRS. JUSTICES FRASER, COTHRAN, and MARION concur.
MR. CHIEF JUSTICE GARY did not participate.
CONCURRING OPINION IN CASE A.