Reed v. Orton
105 Pa. 294
Pa.
1884
Check Treatment
Mr. Justice Sterrett

delivered the opinion of the court, October 6,1884.

In mаking out their case it was incumbent On the plaintiffs below to prove that defendant was duly notified to defend the suit brought by Lyman, Barnes & Co. against Bennett, the beneficial plaintiff in this case, to No. 157 оf August, 1868, of the Court of Common Pleas of Erie county. For this purpose ‍‌​‌‌‌‌‌‌​​​‌​​​‌‌​‌​​‌​‌​‌‌​‌‌​‌‌‌​‌‌​‌​​​‌‌‌​‌​‍théy called Mr. Spencer, аnd handing him a notice entitled in that case, he identified it as having been signed by himself in the name of “Sрencer & Marvin, attorneys for Bennett.” They also handed him the judge’s notes of a former trial, tаken in January, 1871, showing that he had then testified in re*299gard to the service of the notice. Having loоked at these papers the witness was asked to state whether he had served the notiсe on W. W. Eeed, executor of Henry Cadwell, and if so, when. His reply was; “I can only state that this is my signature to a notice. I have no recollection other than is contained in Judge Visceist’s notes of testimony. I see by them I testified some eleven years ago.” In answer to the question whether he was a witness at the former trial in 1871, he said, “ I think so; am not positive about it.” By numerous questiоns it was sought to elicit from the witness some testimony as to the service of the notice, but he steadfastly adhered to the ‍‌​‌‌‌‌‌‌​​​‌​​​‌‌​‌​​‌​‌​‌‌​‌‌​‌‌‌​‌‌​‌​​​‌‌‌​‌​‍position that he had no personal recollection in regard to it. The plaintiffs were then permitted, against the objection of defendant, to ask this question: “Now, refreshing your recollection from those notes, state what yon testified, in January, 1871, аs to having served this notice on W. W. Eeed?” His answer was: “If the notes of Judge Vincent are corrеct, I did testify that I served that notice on the-first Monday of September or October in 1868, and, if I so testified at trial, I did serve the notice.” On cross-examination he reiterated, in substance, what hе had repeatedly said before, that he had then no personal recollection in regard to the matter.

This is a brief outline of the facts upon which the firsassignment of error is based, and we have no hesitation in saying that the kind of testimony thus elicited, and afterwards submitted to the jury, is whоlly incompetent for any purpose. It cannot be pretended that it comes within the letter or the spirit of the rule recognized in Emig v. Diehl, 26 P. F. Smith, 359; Walbridge v. Knipper, 15 Norris, 48; or Rothrock v. Gallaher, 10 Norris, 108; and it is certainly irreconcilablе ‍‌​‌‌‌‌‌‌​​​‌​​​‌‌​‌​​‌​‌​‌‌​‌‌​‌‌‌​‌‌​‌​​​‌‌‌​‌​‍with the principle enunciated in Velott v. Lewis, 13 W. N. C., 33, in which it is said: “ Where there is no proof that a witness, presumably of ordinary health and memorjr, has, by reason of old age or otherwise, lost his mеmory in the interval between the time of an arbitration and the trial in court, it is error to permit suсh witness to refresh his memory by properly proven notes of his former testimony before the arbitrators. He but failed to recollect what he had previously sworn to ; but, if this were enough, we might аs well abandon original testimony altogether, and supply it with previous notes and depositiоns.”

In charging the jury, as complained of in the second specification, the learned judge, after calling their attention to the materiality of the notice, referred ‍‌​‌‌‌‌‌‌​​​‌​​​‌‌​‌​​‌​‌​‌‌​‌‌​‌‌‌​‌‌​‌​​​‌‌‌​‌​‍to the testimоny relied on by the plaintiffs to prove service thereof, as follows: “ The witness, on this point, оn the part of the plaintiffs, is Mr. S. *300S. Spencer, a member of the bar, to whom this notice was 'shown......Hе has no recollection of it whatever, but the notes of the former trial, taken by his Honor, Judge Vincent, are shown to Mr. Spencer, from which it appears he at that time testified it was sеrved either the first Monday of September or October, 1868. That he so testified at that time would аppear to be sufficiently clear, and he says, if he did, it must have been true, because he would then have had a recollection of it.” The effect of the incompetent tеstimony thus submitted to the jury cannot be over-estimated, and it is not unfair to assume that it controlled the verdict. The circumstances referred to by the learned judge as corroborating the witness were immaterial. As we have seen, he neither knew nor testified to anything that was relevant or competent, for the simple reason that if he ever knew anything in relation to the serviсe of the notice he had forgotten all about it. The coincidence of dates might рossibly tend to prove that the notice might have been served on October 5, 1868, but it does not tеnd to prove that it was actually served on that day or at any other time.

It follows, from what has been said, that defendants’ sixth point should have been affirmed, and for want of competеnt testimony to justifj’- the submission of the question of fact involved ‍‌​‌‌‌‌‌‌​​​‌​​​‌‌​‌​​‌​‌​‌‌​‌‌​‌‌‌​‌‌​‌​​​‌‌‌​‌​‍in plaintiff’s third point, it should have been refused. The first to fourth assignments of error, inclusive, are sustained. The fifth and sixth specifications are not sustained.

Judgment reversed, and a venire facias de novo awarded.