Alabama & Vicksburg Railway Co. v. Coleman

78 Miss. 182 | Miss. | 1900

Whitfield, C. J.,

delivered the opinion of the court.

It is perfectly clear that the verdict is excessive. ■ Granting that, on Murray’s testimony, all else can be upheld — which we do not now decide. Murray expressly states that he knew nothing of his own knowledge, or from his books, as to any death or injury of or to any animals in cars No. 10536, N. E.; 25067, V., S. & P.; 5029, V., S. & P.; 35040, M. & O., and 8003, A. G: S., and yet the jury rendered a verdict for the whole amount claimed. It cannot be upheld on the plaintiff’s very unsatisfactory testimony, as contained in this record, and on Murray’s it is excessive.

We decline to pass upon the competency of the testimony of Coleman, based on memoranda or statements, whatever they were, which Coleman was allowed to use to refresh his memory. If they were memoranda — the ones he testified from— made by himself or under his direction at the time of the occurrence of the events recited in them, with personal knowledge that they so occurred, they could be so used. If they were— the ones used on the trial — -copies from entries made by a bookkeeper, without personal knowledge of the truth of the entries, long afterwards, it would be idle to say Coleman could refresh his memory from such memoranda, made, not by himself, but by another. In such case the witness must once have known personally the truth of the fact recited in the entry, and so have had once, as to it, a memory, now, on the witness Stand, by the entry then made by himself or one under his direction, to be refreshed. As to a happening touching- which a witness never had any actual personal knowledge, he never, at any time, had any memory to be refreshed. The memoranda in such case, where sought to be used to refresh memory, as here, are not substantive proof of the truth of the entry recited in them. They do not go to the jury. They are allowed to be used only when they were made by the witness himself, or by one under his direction, so that he knows or knew of the truth of the recitation in the entry. Railroad Co. v. Provine, 61 Miss., 288. In Railroad Co. v. Echols, 54 Miss., at page 270, the court say, “He had stated the cost from memory.” And he had bought in Cincinnati, and knew the cost, once, personally. In Cooper v. State, 59 Miss., 272, Pannell spoke from personal knowledge once had, and revived by the memorandum. See, specially, for instructive discussion, Bates v. Preble, 151 U. S., 155, s.c. 38 L. Ed., 106, and Curtis v. Bradley (Conn.), 31 Atl., 591, s.c. 28 L. R. A., 146. See, also, 1 Greenl. Ev. (16th ed.), secs. 439a-439c, note; Chamberlayne’s Best Ev., pp. 216, 217; Maxwell's Ex'rs v. Wilkinson, 113 U. S., 656, s.c. 5 Sup. Ct., 691, 28 L. Ed., 1037; 9 Am. & Eng. Enc. L. (1st ed.), 278 (2).

The law is thoroughly settled on this point. But in this case it is absolutely impossible, from the very irregular course of the examination, to tell what these memoranda were, or when made. It would seem that Coleman made the original entries, at varying times, in some sort of book or books; that he made copies from these books for some purpose, but that these were copies made by his bookkeeper, who made them from what is not shown. We decline to pass upon an assignment of error thus obscurely presented, since it is not necessary to the decision.

Reversed and remanded.