Spring Garden Mutual Insurance v. Evans ex rel. Riley

| Md. | Feb 24, 1860

Le Grand, C. J.,

delivered the opinion of this court.

This case was before this court at .Tune term 1856, and the decision then given must control the one now to bo made, the record not having boon materially altered as to its facts. We regret this because, there is nothing appearing in the evidence from which we can infer there had been any concealment or fraud on the part of the insured or his assignee. But this case, like all others, is to be made out by legal evidence, and this, in our opinion, has not been done,

At the former trial it was held by this court, that: there was no waiver of preliminary proof, and. that the refusal- of the defendant, after notice to do so, to produce the papers left at its office with its president, in. Philadelphia, did not authorize any inference against the party refusing; that its only legal effect was, to allow the opposite party to prove their contents. 9 Md. Rep., 17.

We consider it unnecessary to pronounce upon each of the exceptions, because the recovery of the plaintiff depends on the affidavit of George W. Hammond, of the 18th day of August 1849, and the testimony of Hammond in regard to it. If the testimony was inadmissible, then, the third prayer of the defendant was improperly rejected.

Much has been written and decided as to the use which may he made of memorandums in relation to the matter inquired of at the trial, and great difference of opinion expressed. In the case of Martin vs. Good, 14 Md. Rep., 398, decided at the June term 1859, this court adopted the rule, as it had been relaxed from its former strictness by some of the courts of this country.

In that case a paper containing the terms of a settlement. between partners, was placed in the hands of a witness to refresh his memory. The witness recognized the paper as in Ms handwriting, but did not remember where or when he wrote it, though he thought it was on the day of the settlement, and it must have been within a week thereafter. His. memory was not refreshed, by reading the paper, so as to enable him to recollect the amount of accounts taken, or the particular debts assumed by each partner, but from the fact of its being in his handwriting, he had no doubt it did contain the true terms of the agreement made in his presence, and each and all the terms of the contract, as stated in the paper. This testimony was admitted, the court holding, that where the writing is neither recognized by the witness as one which he remembers to have seen before, nor awakens-his memory to the recollection of anything contained in it, but, nevertheless, knowing the writing to be genuine, his mind is so convinced that he is, on that ground, enabled to swear positively to the fact, the testimony will be received.

In the case now before us, the fire took place on the 20th March 1849, and the affidavit of the witness was made on the 18th day of August of the same year, nearly five months thereafter. The paper is in the handwriting of the witness, recognized by him as such; and the question is, whether after such a lapse of time, the witness may be permitted to testify to his belief of the correctness of the facts set forth in it? We think not. In the case of O’Neale vs. Walton, 1 Richardson, S. C. Rep., 234, the court review and explain the case of State vs. Rawls, 2 Nott. & McCord., 332, and decide that, in order to allow a witness to refresh his memory by looking at the memorandum, it must have been made at the moment, or recently after the fact, but if made weeks or months thereafter, he will not be permitted, nor, if made at the recommendation (which is the case here) of one of the parties. We adopt this interpretation, and, in doing so, must reverse the judgment. In 9 Md. Rep., 18, it was said, ‘'there was no obligation on the defendant to show any defect in the preliminary proof until the plaintiff had first made out a prima jade case of compliance with tlie requirements of the policy.” It may btf, that this can be done, and, therefore, the plaintiff will be alkrwed, at any time, during this term, to move for a procedendo.

(Decided February 24th, 1860.)

Judgment reversed.