(113 A.) Argued before BOYD, C. J., and URNER, these rulings are the subject of the 15 bills STOCKBRIDGE, ADKINS, and OFFUTT, JJ. of exception which the record presents for Isaac Lobe Straus, of Baltimore (J. Paul our consideration. Schmidt, of Baltimore, on the brief), for appellant. Lindsay C. Spencer, Asst. Atty. Gen., and Alexander Armstrong, Atty. Gen. (Robert F. Leach, Jr., State's Attorney, of Baltimore, on the brief), for the State. OFFUTT, J. Andrew Reid Myers, the appellant, was tried and convicted in the criminal court of Baltimore City on the 15th of March, 1920, of the larceny of an automobile, and sentenced to be confined in the Maryland penitentiary for ten years; the sentence to run concurrently with like sentences in two other cases. The indictment contained two counts, in the first of which the appellant was charged with the larceny of the automobile, and in the second he was charged with having and receiving it knowing it to have been feloniously stolen. The automobile was the property of Calvin C. Baker and Charles H. Lambeth of Norfolk, Va., and had been driven from Cape Charles, Va., to Baltimore by Mr. Baker, who left it there with Mr. Lambeth on August 12, 1919. On August 13th Mr. Lambeth left the car in front of the Maryland Theater while he attended a performance at the theater, and when he returned after the performance to where he left it, it was no longer there. He reported the loss to the police, and gave such identifying numbers and marks as he remembered, and which might aid them in locating it. On October 25th two detectives of the detective department of Baltimore noticed an automobile at the Hudson Service Station, the engine numbers of which had been changed, and when Myers, who proved to be operating the car, called for it and was about to drive it away, they arrested him. Myers when asked about his possession of the car said that he owned it and had bought it from a man by the name of Kane. This machine was subsequently identified by Lambeth and Baker as the car which had been stolen on August 13th, and Myers was indicted for the larceny thereof. His defense was that he had bought the machine in good faith from Joseph W. Kane, who lived at No. 4102 Park Heights avenue, Baltimore, on the 21st of August, and that when he bought it he took a bill of sale for it from Kane, but that this bill of sale and his own registration card had been removed from the automobile while it was stored at Griffin's Garage, or after it had been taken from there by the police department, and he denied knowledge of any changes in the numbers on the car. During the course of the trial exceptions were reserved to the rulings of the court in [1] The first exception relates to the action of the court in permitting a witness for the state to testify that the engine numbers on the automobile referred to in the testimony had been changed. The ground for this excep tion is not apparent, and in our opinion the evidence was properly admitted. The appellee was unquestionably entitled to show the condition of the car both when it was stolen and when it was recovered, and if the engine numbers had been changed there is no reason why the jury should not have been told of that fact. [2, 3] Calvin C. Baker testified that he and Charles H. Lambeth owned the automobile in question together. The traverser objected to this evidence, and to the action of the court in overruling this objection the fifth exception was taken. We find no error in this ruling. The ownership of the car was a relevant fact, and Baker as the purchaser thereof was a competent witness to prove it. The witness Calvin C. Baker, having testified to the value of the automobile and that he had the original motor number "in his pocket," was asked if he "had any card or anything bearing the original motor number." This question was objected to and the objection overruled, and the witness answered that the card in question was a plain card given by the Automobile Commissioner; that he got the card from the Hudson people when he notified the Hudson people his car was lost, and when he had the car insured he had to give the number which he got from where he bought the car; that he had the number he gave the insurance people, the motor number, in his pocket; and he was then asked to refer to the memorandum. The appellant objected, and the witness was then asked by the court, "Did you check it up yourself to see that the number was on the engine?" and he replied, "Yes, sir." After the card was shown to the judge presiding at the trial, he asked the witness the following question, "You say you checked the number up with the actual motor?" to which he answered, "Yes, sir." Objection to this question was also overruled, and these rulings are the subject of the sixth and seventh exceptions. These two questions were clearly preliminary and could not possibly have injured the appellant, and there was no error in allowing them to be asked. It cannot be assumed from anything contained in the record that the card, or memorandum referred to in them, was either referred to by the witness to refresh his recollection, or offered in evidence; but, on the contrary, the last reference clearly referring to it was that of the presiding judge, who said, "I do not see how it is permissible." It does not appear to [4] The same witness was then handed a paper and asked to state what it was. The defendant objected and the state made the following offer: "I want to lay the foundation and show where this memorandum was made, and the examination that he made of the car, and that there was a checking up at that time." An objection to this offer was overruled, and the witness again asked to tell what the paper was. The objection to this question was also overruled, and the witness replied that The paper was a "receipt for the car from Mr. Aaronson, New York, from whom he bought the car; that the receipt bears the motor number, and that he had compared the motor number on the receipt with the motor number on the car himself. The comparison was made when he bought the car on July 5, 1919." He was then permitted over defendant's objection to read the receipt to the jury. These rulings are the subject respectively of the eighth, ninth, and tenth exceptions. The testimony involved in the eighth and ninth exceptions was clearly preliminary, and since it could not have injured the defendant, it is sufficient to say that there was no error in the rulings in respect to it. [5, 6] The appellant in his brief assumes that the "receipt" offered in evidence and referred to in the tenth exception was the "card" referred to in the seventh and eighth exceptions, but not only is there nothing in the record to warrant that assumption, but, on the contrary, the record clearly indicates that the "receipt" and the "card" so referred to are different papers, and as we are bound by the record before us, from which alone we can be informed of the facts of the case, they will be treated as separate and distinct, and not as one and the same paper. The witness testified that the "card" was "given by the Automobile Commissioner and that he got it from the Hudson people," while the "receipt" was from the man who sold the car "given him at the time," and as his is the only testimony on the subject it is apparent that the "card" was not the "receipt" referred to by the witness. The question then is: Was the "receipt" properly admitted in evidence? It may have been offered, either to prove Baker's ownership of the car, or to prove the original motor number. One of the questions in issue was the ownership of the automobile. The state charged that the car was the property of Calvin C. Baker and another. The defendant, on the other hand, contended that the car was his and that he had bought it in good faith from one who claimed and apparently was its owner. If that was true, he could not have been guilty of stealing the car, and whether it was true was the most important fact in the sworn statement of a third party that he had sold the automobile to Baker, violated the rule against hearsay and was not competent evidence to prove that fact. Leatherbury v. Bennett, 4 Har. & McH. 392; Ellison v. Albright, 41 Neb. 93, 59 N. W. 703, 29 L. R. A. 737; Doherty v. Doherty, 155 Mo. App. 481, 134 S. W. 1112. But while it was not admissible in connection with the issue of ownership, it was admissible as a memorandum showing the engine number of the car made at the time it was sold to Baker, to prove what that number was. Conner v. Mt. Vernon Co., 25 Md. 55. The paper was not in the handwriting of the witness, but he had compared the "motor number on the receipt with the motor number on the car" when he bought the car. [7] It has been "held that where a witness is unable after examining a memorandum, to testify to an existing knowledge of the fact independently of the memorandum, but can testify that, at or about the time the writing was made, he knew of its contents and of its truth or accuracy," both the memorandum and the "testimony of the witness" are admissible. "That the two are the equivalent of a present positive statement of the witness affirming the truth of the contents of the memorandum." Jones on Evidence, par. 883, or, stated in another way, that— "Where the witness cannot refresh his memory as to the facts, he must be able to state that because of such memoranda he knows the facts stated therein existed." Wharton on Cr. Ev. par. 203. And the rule in this state is even broader, for in Owens v. State, 67 Md. 307, 10 Atl. 210, 302, it was said: "If the witness swears that he made the entry or memorandum in accordance with the truth of the matter, as he knew it to exist at the time of the occurrence, whether he retains a present recollection of the facts or not, the entry or memorandum is admissible." Nor is it necessary that the witness should have made the memorandum himself, for if he recognizes it as one which he examined at the time it was made and knew it to be true then, and at the time of his examination still believed it to be true, it should be given the same effect as if he had himself made or written it. Green v. Caulk, 16 Md. 556; Jones on Ev. par. 877. Applying these principles to the facts before us, in our opinion there was no error in the admission of the receipt in evidence, for it is apparent from the evidence that the witness did examine the receipt when it was first made and had knowledge of the facts it recorded and believed it to be accurate then, for he made it the basis of his application for insurance on the car; and the receipt (113 A.) ceipt produced at the trial which he still be- touring car, owned by the appellees and allieved to be true. leged to have been caused by the negligence of the appellant, in operating a Peerless touring car, at the intersection of North Charles street and Twenty-Seventh street, in the city of Baltimore. [8] In the oral argument and in the brief At the trial of the case in the superior filed in the case, counsel for the traverser court of Baltimore City, the plaintiffs' first, asked the court to reverse the judgment in third, fourth, sixth, seventh, and eighth praythis case on the ground that the evidence beers were granted, but their second and fifth fore the jury was not legally sufficient to were refused. All of the defendant's praywarrant a conviction. This request is not ers were granted, except the first and secbased upon any exception contained in the ond, and these were rejected. record or on any ruling of the lower court The only exception presented by the recand is without precedent or authority to sup-ord is to the ruling of the court in granting port it. [9] It should be unnecessary to point out that in its consideration of appeals in criminal cases, this court cannot review or weigh the evidence as it might do in appeals from courts of equity, and as there is no exception in the record to which the request could refer and in the absence of any reason or authority for it, it cannot be further considered. For the reasons stated the judgment will be affirmed. Judgment affirmed. (137 Md. 601) FISHER v. CITY DAIRY CO. et al. (No. 74.) the plaintiffs' eighth prayer, and in refusing the defendant's first and second prayers, which were offered at the close of the plaintiffs' case, and re-offered at the close of the testimony of the entire case. The plaintiffs recovered a verdict of $716, and from the judgment entered on the verdict this appeal has been taken. The rules of law, controlling and applicable, in the trial of negligence cases, have been so often stated and applied by this court, in recent cases, that it would seem to be unnecessary to discuss them on this record. The defendant's first and second prayers were demurrers to the evidence and upon the state of proof, disclosed by the record, could not properly have been granted by the court. These prayers asked the court to instruct the jury that, under the pleadings, there was no Damages 113—Measure of damages to auto-evidence legally sufficient to entitle the plainmobile is cost of repairs with value of use tiffs to recover and the verdict of the jury while being repaired. must be for the defendant. (Court of Appeals of Maryland. Jan. 13, 1921. Rehearing Denied March 3, 1921.) Where an automobile, damaged in a collision, was not destroyed but was capable of being repaired at a reasonable cost, the measure of damages was the cost of repairs with the value of the use during the time it would take to repair it, and not the difference between the value immediately preceding and immediately following the accident. The law of the case, it will be seen, was practically conceded at the trial by the granted prayers, presented on the part of the plaintiffs and defendant. The negligence vel non of the defendant and the contributory negligence of the plaintiffs were clearly questions properly for the consideration of a jury, upon the proof set Appeal from Superior Court of Baltimore out in the record, and the defendant's first City; John J. Dobler, Judge. "To be officially reported." Action by the City Dairy Company and another against Frank Fisher of J. From a judgment for plaintiffs, defendant appeals. Reversed, and new trial awarded. and second prayers were therefore properly refused by the court. The eighth prayer of the plaintiffs, however, upon the measure of damages, did not state the proper and correct rule in cases of this character and should not have been granted. Argued before BOYD, C. J., and BRISCOE, By this prayer, the jury were told that the THOMAS, PATTISON, URNER, STOCK-true measure of the plaintiffs' damage in this BRIDGE, ADKINS, and OFFUTT, JJ. J. Kemp Bartlett, Jr., of Baltimore (Robert D. Bartlett and Bartlett, Poe & Claggett, all of Baltimore, on the brief), for appellant. E. Allan Sauerwein, Jr., of Baltimore, for appellees. case is the difference between the value of the plaintiffs' automobile immediately preceding the accident complained of and its value immediately thereafter. In the recent case of W. B. & A. Ry. Co. v. Fingles, 135 Md. 578, 109 Atl. 431, this court held that the measure of damages for injury BRISCOE, J. This is a suit at law, to re- to personal property, where the property has cover damages for certain injuries to a Dodge | been damaged but not entirely destroyed, is miles. For the reasons stated, there was reversible error in granting the appellees' eighth prayer, upon the measure of damages, and for this error the judgment appealed from must be reversed, and the case remanded for a new trial. the cost of repairing the property, together it had been driven between 5,000 and 6,000 with the value of the use of the property during the time that it would take to repair it. The same rule is recognized and announced by this court in previous cases on the measure of damages. Western Md. R. Co. v. Martin, 110 Md. 564, 73 Atl. 267; Con. Gas v. Getty, 96 Md. 683, 54 Atl. 660, 94 Am. St. Rep. 603; Piedmont Coal Co. v. Kearney, 114 Md. 496, 79 Atl. 1013; Mullan v. Belbin, 130 Md. 313, 100 Atl. 384. In Western Md. R. Co. v. Martin, 110 Md. 564, 73 Atl. 267, it is said the record contains evidence tending to show injury to the plaintiff's household furniture for which the measure of damages for so much thereof, if any, as was entirely destroyed, would be its value at the time of destruction, and for so much thereof as was merely damaged would be the cost of repairing it. In the case at bar, the testimony shows that the automobile was not destroyed by the collision and the car was capable of repairs at a reasonable cost. The car was a Dodge touring car converted into a sedan, by a winter top. The car was purchased in March, 1917, and had been driven between 5,000 and 6,000 miles. The car completely equipped cost when new $893.97. Mr. Harper, secretary, assistant treasurer, and manager of the Eastwick Motor company, testified: Judgment reversed, and a new trial awarded; the appellees to pay the costs. (137 Md. 534) WEITZELL et ux. V. WEST VIRGINIA (Court of Appeals of Maryland. Jan. 12, Mines and minerals 122-Mining of coal destroying lateral support of adjoining land separated by road held not to entitle owner to damages. Removal of coal from land by owner did not render it liable for damage to other land separated from such owner's land by public highway, on theory that the mining of such coal destroyed the lateral support of such other land, where there was no evidence that the intervening road was in its natural state, and where the evidence showed that such other land was not in its natural state, and that the coal had been taken therefrom by a third person causing damage to land for which the I was connected with that company in No-owner had been compensated. vember and December, 1917. Our company is a distributor for the Dodge car. I have been examining damaged cars and estimating on visible damage for about 10 years. I recall the Schier car that had an accident in November, 1917. I made a personal examination of that car and wrote a letter or a report to Mr. Schier. In the letter that we wrote in Decem-pany. ber, 1917, we told Mr. Schier that it would cost $466.07 to replace the visible damage; that is, an itemized bill, prices taken from Dodge Bros.' price catalogue. In that letter we told Mr. Schier we would allow him $200 for the car, and we did. We allowed him $200, as the car was in a wrecked condition. It was a very fair | allowance. The estimate of $466.07 included $90 for labor. Appeal from Circuit Court, Allegany County; Robert R. Henderson, Judge. "To be officially reported." Action by Lawrence Weitzell and wife against the West Virginia Pulp & Paper ComJudgment for defendant, and plaintiffs appeal. Affirmed. He further testified that between March, 1917, and December, 1917, Dodge cars advanced in price, but I do not know the exact date of the advance nor the amount of the advance. According to the receipted bill for the new car, the price of a Dodge car in De cember, 1917, was $885, with war tax and freight $970, but no claim is made because of that fact. The jury by its verdict, it will be seen, assessed the damages at $716, and with the additional sum of $200, allowed for the damaged car, the appellees will receive as compensation for their car a sum more than was expended in the purchase of the car eight months before when it was new, and before Argued before BOYD, C. J., and THOMAS, PATTISON, STOCKBRIDGE, ADKINS, and OFFUTT, JJ. Albert A. Doub, of Cumberland (Edward J. Ryan, of Cumberland, on the brief), for appellants. Horace P. Whitworth, of Westernport, for appellee. ADKINS, J. This was an action of tort for alleged injury done the property of appellants by the appellee in pillaring and removing coal from its property up to the county road lying between the properties of the appellants and the appellee. There are two counts in the narr. The first alleges the ownership of the respective properties; the valuable buildings and other improvements on the appellants' lot; the situation of said lot on a steep slope known as "Westernport Hill"; that said lot and the land contiguous, adjacent to, and in the neighborhood thereof were underlaid with coal which supported and maintained the (113 A.) At the conclusion of appellants' (plaintiffs') testimony the trial court granted a prayer instructing the jury: "That under the pleading in this case there is no legally sufficient evidence permitting the plaintiff to recover, and their verdict must be for the defendant." The only bill of exception is based on the In granting the granting of this prayer. prayer Judge Henderson said: surface of all the said property; that appel- [ for the repairs on the demand of appellants. lee prior to the happening of the injuries There was no testimony offered to show that complained of was engaged in the operation appellants' land was in its natural state at of removing coal from under the property ad- the time of the pillaring and removal of coal jacent to and adjoining the premises of the complained of in this suit. appellants, which coal helped to support the appellants' said property; that appellee on or about the 1st day of August, 1918, dug into and under the tracts or parcels of land lying contiguous to appellants' property and on the lower side thereof and removed the coal therefrom without leaving any support or pillars to maintain appellants' property or the property adjacent and contiguous thereto, well knowing that the said coal could not be so removed without damaging and ruining the said land and buildings of appellants, and so recklessly dug, removed, and pillared the said coal that as a result therefrom the lateral support of the appellants' property was taken away and the foundation of their house was injured, and the walls, plaster, and papering thereof were damaged, and a The only case cited by counsel and the only valuable cistern thereon was destroyed, and one we have been able to find where the minother damage to the property was thereby ing complained of was under land owned by caused, and the said property has thereby one whose lines did not extend to the lines of been rendered unfit as a dwelling, and has the property claimed to be injured is the depreciated in value, all of which damage English case of Corporation of Birmingham resulted from the negligence of the defendant | v. Allen, 6 Chancery Div. 284. In that case as aforesaid. James, L. J., said: The second count differs from the first in that it attempts to cover injury done by removing coal from under property not immediately adjacent to appellants' property by adding the words "or under the property below and within a very few feet of said premises, and almost adjacent to and almost adjoining said premises, and so near said premises that such pillaring could not safely be done without damage to the plaintiffs' property under all the circumstances, and which said coal so pillared helped to support and maintain the plaintiff's said premises," and that "the defendant knew, or ought to have known, that the said coal could not be removed without damaging and ruining the said land and buildings of the plaintiffs." Appellee pleaded the general issue plea and the plea of res adjudicata, on the first of which pleas issue was joined. The second was traversed and issue joined on the trav erse. There was no testimony offered on either side on the question raised by the second plea, nor was there any evidence tending to show negligence in the manner of removing the coal. And it is strongly contended by appellee that there was no evidence legally sufficient to show that the injury to appellants' property was caused by any of the acts of the appellee complained of. But in the view we take of the case it will not be necessary to decide that point. There is evidence in the record that in 1912 or 1913 appellants' house was injured while coal was being dug from under their property by the Davis Coal & Coke Company, and that the company paid "The court is of the opinion that the plat, taken in connection with Mr. Brown's testimony, shows that the two properties do not adjoin and are separated at least by the width of the county road and possibly a little bit more." # * * "As the Master of the Rolls in this case has pointed out [referring to the meaning of the word "adjacent"], it does not necessarily apply to a case where the adjacent owner is the owner of a mere strip of land not affording support; that is the adjacent land, that is the neighboring property, which in extent would in the natural state of things have afforded the requisite support to the dominant tenement." "I cannot upon principle find any reason for extending the liability to an owner of some land beyond the zone There is no distinction in principle whether the intermediate acts which have changed the natural position of the properties are due to the plaintiff himself or to somebody else, because if he has lawfully worked his mines he would say, I have done no wrong; I have done nothing that I was not lawfully entitled to do. I have worked out my mines under my own land as far as I might lawfully do so, and having done that I have now a cavity under my land, and I now warn you, my neighbor, that you must not follow my example and work your mines, because if you work your mines in addition to my working my mines you will let down my house or the surface from which I have removed my support'-thus throwing it entirely upon him"-citing Partridge v. Scott, 3 M. which is so described. * & W. 220. The Lord Justice holds that the same principle applies if some one other than the plaintiff or defendant has intervened and destroyed that which was the natural support of the plaintiff's property; that is to say, that portion of the neighboring land which in a state of nature did exist for the purpose of support. Without discussing other interesting ques |