315 Mass. 59 | Mass. | 1943
This is an action of contract, begun May 11, 1939, to recover for money lent to the defendant’s intestate, Maurice Bendett, who died in September, 1938. There was a verdict for the plaintiff, and the case is here on exceptions of the defendant to the admission of evidence.
Evidence was introduced by the plaintiff from several witnesses, to the effect that his brother, the defendant’s intestate, needed about $10,000 with which to buy an agency; that the deceased said he had difficulty in repaying to the plaintiff the money lent, because of excessive overhead; that the deceased made certain payments to his father to be given to the plaintiff and credited in the plaintiff’s “little book”; that the deceased said that he thought he would incorporate his business and give the plaintiff most of the stock so that he could realize some of his money that the deceased owed him when he began business, as that was the only way in which the deceased could pay him; and that the deceased said that he owed his family a large sum of money, over $5,000, and, according to the memory of one witness, around $10,000.
The judge admitted the.foregoing evidence “de bene,” that is, conditionally upon prerequisites of its admission being later shown. Clarke v. Fall River, 219 Mass. 580, 586. Solomon v. Dabrowski, 295 Mass. 358, 360. He was of opinion that the plaintiff was required to show that “the statements were made in good faith from personal knowledge.” At the conclusion of the evidence, the defendant moved that the evidence of statements made by the defendant’s intestate be struck out. No further evidence had been introduced that the statements were made in good faith upon personal knowledge. The judge denied the motion to strike out, and the defendant excepted.
Apparently the judge thought that the statements could be admissible only under G. L. (Ter. Ed.) c. 233, § 65, since amended by St. 1941, c. 363, and St. 1943, c. 232. The parties argue the case upon the same assumption. But in truth the statements of the defendant’s intestate were admissible at common law, as admissions. The defendant administratrix is defending against an alleged debt claimed to be due
The only other exception is to the admission in evidence of a “little book” or “small red diary,” which the plaintiff had kept since 1921. He testified that that book was the only record that he kept in the ordinary course of business concerning his loans to the defendant’s intestate. An inspection of the book, which is before us, shows that it contains various informal accounts and memoranda in pencil. One account in it purports to be with the defendant’s intestate, and the items in that account are the same as those in the account annexed to the declaration, except that there is no item of interest.
The entries in the book were not admissible at common law as entries in a shop book or book account. For one reason, each of the items exceeded $6.66, which was the limit for items of cash payments or loans provable by entries in a book account. Cleave’s Case, 3 Dane’s Abr. 319 (1782). Union Bank v. Knapp, 3 Pick. 96, 109. Burns v. Fay, 14 Pick. 8, 12. Henshaw v. Davis, 5 Cush. 145. Turner v. Twing, 9 Cush. 512. Townsend Bank v. Whitney, 3 Allen, 454, 456. Maine v. Harper, 4 Allen, 115. Davis v. Sanford, 9 Allen, 216. Cheney v. Cheney, 162 Mass. 591. Produce Exchange Trust Co. v. Bieberbach, 176 Mass. 577, 587. Wigmore, Evidence (3d ed.) § 1539.
The entries were not admissible under G. L. (Ter. Ed.) c. 233, § 78. By that statute, certain prerequisites of admis
The plaintiff, while testifying, “refreshed his recollection” from the “little book” or “small red diary,” already described. He was cross-examined about the items in the book. On redirect examination counsel for the plaintiff offered the book, and it was admitted in evidence over the exception of the defendant. Did these facts make the book admissible in evidence?
When a witness, while testifying, uses a writing to “refresh his memory” or recollection, either in the sense of stimulating and reviving a present recollection (Wigmore, Evidence [3d ed.] §§ 758-765; Director General of Railroads v. Eastern Steamship Lines, Inc. 245 Mass. 385, 399), or in the sense of enabling him to testify to the fact from a record of his past knowledge (Ibid. §§ 734-735; Commonwealth v. Ford, 130 Mass. 64; Guiffre v. Carapezza, 298 Mass. 458, 125 Am. L. R. 1, and note; Santarpio v. New York Life Ins. Co. 301 Mass. 207, 210), the opponent may examine the writing or so much of it as relates to the case on trial, may cross-examine about it, and may introduce it in evidence to show that it could not or did not aid the witness in any legitimate way. Commonwealth v. Haley, 13 Allen, 587. Commonwealth v. Lannan, 13 Allen, 563, 569. Commonwealth v. Burke, 114 Mass. 261. Commonwealth v. Jeffs, 132 Mass. 5. Donovan v. Boston & Maine Railroad, 158 Mass. 450, 457. Commonwealth v. Burton, 183 Mass. 461, 471. Capodilupo v. F. W. Stock & Sons, 237 Mass. 550. Common
Where the writing actually stimulates or revives a complete present recollection, the witness must testify to the fact as he remembers it. He may not read or show the writing to the jury, Vicksburg & Meridian Railroad v. O’Brien, 119 U. S. 99, 102. Kelsea v. Fletcher, 48 N. H. 282. Graves v. Boston & Maine Railroad, 84 N. H. 225. Lawrence v. Farwell, 86 N. H. 59, 63. National Ulster County Bank v. Madden, 114 N. Y. 280. McCarthy v. Meaney, 183 N. Y. 190, 193. Acklen’s Executor v. Hickman, 63 Ala. 494. Roll v. Dockery, 219 Ala. 374. Crothers v. Caroselli, 126 N. J. L. 590. State v. Coffey, 8 Wash. (2d) 504. Wigmore, Evidence (3d ed.) § 763. See in this Commonwealth, Commonwealth v. Fox, 7 Gray, 585.
But where the writing is merely a record of past knowledge, and does not stimulate or revive a complete present recollection, in most jurisdictions the witness, in the discretion of the judge, is permitted to adopt the writing as his expression of the fact and as part of his testimony, and to read it and even to show it to the jury as such. Ordinarily that is fully as fair to the opponent as for the witness to translate the writing into terms of present assertion and to state the result to the jury. Technically, it is not the same as putting the writing itself in evidence. Mason v. Phelps, 48 Mich. 126, 130, 131. Roll v. Dockery, 219 Ala. 374. Howard v. McDonough, 77 N. Y. 592. Clark v. National Shoe & Leather Bank, 164 N. Y. 498, 502. Curtis v. Bradley, 65 Conn. 99, 108. Williams v. Wager, 64 Vt. 326, 336. Manning v. School District No. 6 of Fort Atkinson, 124 Wis. 84, 99, 100. Myers v. Weger, 33 Vroom, 432, 440, 441. Cottentin v. Meyer, 51 Vroom, 52. Phoenix Ins. Co. v. Public Parks Amusement Co. 63 Ark. 187, 203, 204. Wigmore, Evidence (3d ed.) §§ 754, 755. See also Jacob v. Lindsay, 1 East, 460; Birchall v. Bullough, [1896] 1 Q. B. 325.
We see no reason for denying to the trial judge discretion to permit a witness to incorporate in his testimony a writing expressive of his past knowledge, and to read it and even to show it to the jury.
In the present case, however, the judge went farther. He admitted the writing as independent evidence, and not as a part of the testimony of the plaintiff. It was marked as an exhibit.
It is true that in some jurisdictions, because of the slight practical difference between the incorporation of a writing in the testimony of a witness and the admission of the writing as evidence by itself, a written record of the past knowledge of a witness is held admissible in evidence. Wigmore, Evidence (3d ed.) §§ 754, 755. Graves v. Boston & Maine Railroad, 84 N. H. 225. Lawrence v. Farwell, 86 N. H. 59, 63. See also Crittenden v. Rogers, 8 Gray, 452; Fletcher v. Powers, 131 Mass. 333, 334. It is conceivable, however, that
But although the entries in the book were not competent evidence, the exception of the defendant to their admission cannot be sustained if she was not harmed, or,, in the language of G. L. (Ter. Ed.) c. 231, § 132, if this court “deems that the error complained of has not injuriously affected the substantial rights of the parties.” The plaintiff had already testified, without objection, to the items of account contained in the book, using the book to refresh his memory of those items. He had been cross-examined about those items. 'Thus the jury had been made familiar with everything material that was contained in the book. The admission of the book in evidence merely put before their eyes what they knew already. So far as appears there was nothing in the sight of the items in the book that was more convincing than the testimony of the plaintiff that they were the items in an account that he knew to be true. We do not see how the defendant was harmed. The burden was on the excepting party to show not only technical error, but also reasonable probability of harm. The admission or exclusion of merely
In the opinion of a majority of the court the entry should be
Exceptions overruled.
