On Petition for Rehearing.
Myers, J.The learned counsel for appellant urgently insists that the court was in error in upholding the admissibility of the bill of lading copied into the complaint, without, as is claimed, laying the ground for its introduction.
17. The evidence shows that the copy was made from a duplicate original bill of lading, issued to appellee’s decedent, and lost by her attorney.
Appellant has set up in its answer the same contract, and it was in the record declared and relied on by each party. If appellee had introduced in evidence appellant’s answer containing that copy, it could scarcely be claimed that that was not an admission of the execution of the specific contract. When it was offered as it was, the entire pleadings, including the copy in appellant’s answer, were before the court, and as it Avas for the court to determine its admissibility, the admission by the answer, in Avhich it is alleged that it is a copy, was necessarily an admission of its being a true copy, and the court was bound to take notice from the pleadings, as to whether they were the same.
There is no such fixed rule of evidence, that it may not be varied under any circumstances or conditions. The evidence *30shows that the bill of lading was prepared by appellant, and delivered to decedent. It was appellant’s own act, and by making and delivering it in duplicate, appellant not only consented that it was genuine, but that it ivas an original, and primary evidence, and it was not required, in order to admit one of the originals or a copy thereof, when one original is lost, that there be notice to produce the other original. And when the loss of one original is shown, can it be said that a copy admitted by the pleadings cannot be shown, without notice to produce the other original? The reason for such rule is wholly wanting, and forms an exception to the general rule. Totten v. Bucy (1882), 57 Md. 446; Hubbard v. Russell (1857), 24 Barb. 404; Walker v. Southern R. Co. (1906), 76 S. C. 308, 56 S. E. 952; Dyer v. Fredericks (1874), 63 Me. 173; Cincinnati, etc., R. Co. v. Disbrow & Co. (1886), 76 Ga. 253; Breed v. Nagle (1872), 46 Ga. 112; Johnson v. Haight (1816), 13 Johns. 470; Philpson v. Chase (1809), 2 Camp. 110; Gotlieb v. Danvers (1796), 1 Esp. 455; Eisenhart v. Slaymaker (1826), 14 S. & R. 153; Jory v. Orchard (1799), 2 B. & P. 39.
It is said by Professor Wigmore (2 Wigmore, Evidence §1231), in discussing the question of “original” and “copy”, that “in order to state the rule then (with respect to their admission) in terms which will indicate in the rule itself what documents are included in its scope, it must be noted that the production required is the production of the document whose contents are to be proved under the issues.” The practical situation in this ease was that both parties were counting on the same contract. So in Carroll v. Peake (1828), 1 Pet. *18, 7 L. Ed. 34, it was held on the'facts that an opponent’s copy of an agreement of lease was an original.
27. Where duplicates are produced by mechanical means, all are duplicate originals, and any of them may be introduced in evidence without accounting for the nonproduction of the other. Federal Union Surety Co. v. In*31diana, etc., Mfg. Co. (1911), 176 Ind. 328, 95 N. E. 1104; International Harvester Co. v. Elfstrom (1907), 101 Minn. 263, 112 N. W. 252, 118 Am. St. 626, 11 Ann. Cas. 107, 12 L. R. A. (N. S.) 343 and eases cited and note.
If the duplicates are originals, it is a necessary corollary upon proper proof of destruction or loss of an original, which is primary evidence, that the groundwork is laid for introducing a copy. The rule would, of course, he otherwise if it took different parts to constitute the whole, as in an indenture at common law. Other questions presented are fully covered‘in the original opinioh.
The court was not in error in its holding with respect to the contract, and the petition for a rehearing is denied.
Note.—Reported in 97 N. E. 145 and 98 N. E. 625. See, also, under (1) 6 Cyc. 513; (2) 1913 Cyc. Ann. 404; (3) 31 Cyc. 648; (4) 6 Cyc. 438; 61 Am. St. 89; (5) 6 Cyc. 626; (6) 6 Cyc. 579, 580; (7, 8) 13 Cyc. 343; 17 L. R. A. 71; (9) 2 Cyc. 1014; (10) 2 Cyc. 1013; (11) 6 Cyc. 505; (12) 31 Cyc. 207; (13) 13 Cyc. 375; (14) 17 Cyc. 471; (15) 17 Cyc. 460; (16) 17 Cyc. 564; 12 L. R. A. (N. S.) 343; (17) 17 Cyc. 557; (18) 3 Cyc. 245; (19) 38 Cyc. 1578; (20) 38 Cyc. 1632; 6 Ann. Cas. 799; (21) 13 Cyc. 385; 32 L. R. A. (N. S.) 867; (22) 13 Cyc. 353; (23) 13 Cyc. 385; (24) 38 Cyc. 1711; (25) 6 Cyc. 653; (26) 9 Cyc. 567; (27) 17 Cyc. 517; 12 L. R. A. (N. S.) 343. For notice of loss or injury to goods, required by carrier’s contract as a condition precedent, see 17 L. R. A. (N. S.) 642; as to validity of stipulation in carrier’s contract requiring notice of loss within a specified time, as applied to loss due to carrier’s negligence, see 17 L. R. A. (N. S.) 628.