Summary
In Graves v. Boston Maine R.R., 84 N.H. 225, 149 A. 70 (1930), the challenged evidence was unrelated to any issue in the case and was injected by the plaintiff.
Summary of this case from Kadiak Fish. Co. v. Murphy Diesel Co.Opinion
Decided February 4, 1930.
Where a witness is unable to testify to an occurrence from recollection he may read for the purpose of refreshing his memory a contemporaneous memorandum made by him. If thereby he recalls the occurrence he may testify thereto and the memorandum is inadmissible; if, however, his memory of the occurrence is not refreshed by the memorandum and the witness can testify that when made it truly stated the occurrence the memorandum thereupon becomes admissible. The use of a deposition at the trial is subject to all proper objections and exceptions to the evidence contained therein. Thus in an action for negligently injuring the plaintiff in an automobile collision the deposition of a witness was taken by the defendant and the answer of the witness to the defendant's interrogatory whether the witness carried liability insurance disclosed that he did not. At the trial the plaintiff cannot read that part of the deposition.
FOUR ACTIONS of CASE, to recover for personal injuries and property damage alleged to have been sustained by the plaintiffs at Allenstown on October 9, 1927, by reason of a collision between one of the defendant's electric street cars and an automobile operated by one John Ramamovitch. The cases were tried together by jury, with verdicts for the plaintiffs. The exceptions relate to the admission and exclusion of evidence.
At the time of the accident the defendant's street car was proceeding southward toward Manchester. John Ramamovitch and the plaintiff Catherine Kzykonka were traveling in the same direction in a Ford car owned by the plaintiff Helen Ramamovitch. The plaintiff Jane Graves was riding northward in an automobile owned by the plaintiff C. P. Rockwell, Inc. The street car tracks were within the limits of the highway and on its westerly side.
Shortly before the accident the Ramamovitch automobile passed the street car and ran either upon or very close to the rails just ahead of it. The resulting collision impelled the automobile across the highway and caused it to strike the Rockwell car. The negligence claimed was that of the motorman in failing to stop the street car in time to avoid the collision.
There was evidence that when the automobile passed the street car Ramamovitch waved his hand to the motorman and in so doing lost control of the steering wheel, with the result that the automobile suddenly swerved onto the track immediately in front of the electric car.
To corroborate the testimony on this point, the defendant called a witness who was a passenger on the street car. This witness was unable to testify from recollection whether Ramamovitch did or did not wave his hand. His attention was then directed to a written statement which he had given to a claims-agent four days after the accident. He identified the statement and his signature, but declared that his recollection was not refreshed by that part of the statement which read, "I saw the man in the Ford wave his hand either to someone on the electric or in the road." Counsel then asked the witness if the statement was a true statement. This question was excluded on the ground that neither the statement nor any of its contents was evidence. Thereupon, counsel for the defendant stated, in the form of an offer of proof, that the witness would testify that the memorandum in question "was true at the time he gave it, particularly with reference to the waving of the hand by the man in the Ford at the time he passed the electric car." This offer of proof was rejected and the statement excluded, subject to the defendant's exception.
The deposition of John Ramamovitch was taken by the defendant. Ramamovitch was not available at the trial, and his deposition was introduced by the plaintiffs. In answer to an interrogatory by defendant's counsel, Ramamovitch had stated that he did not carry insurance. The defendant excepted to the ruling of the court permitting that part of the deposition to be read to the jury.
A bill of exceptions was allowed by Oakes, J.
John M. Stark and David F. Dudley (Mr. Dudley orally), for the plaintiffs.
Demond, Woodworth, Sulloway Rogers (Mr. Willoughby A. Colby orally), for the defendant.
1. Since the statement offered by the defendant did not revive the witness' memory, it was admissible, if properly verified by him, as a record of past knowledge. The use of such records "now occupies a firm and unassailable place in our practice and doctrine." 2 Wig., Ev. (2d ed.), s. 736.
The rule is that a memorandum of this nature may be received in evidence if the witness, upon examination of the document, cannot remember all the material matters recorded, but is able to assert that it truthfully represented his knowledge at the time. The testimony of the witness in the present case, coupled with the defendant's offer of proof, embodied all the requirements of the rule. See Haven v. Wendell, 11 N.H. 112; Hall v. Ray, 18 N.H. 126, 129; Seavy v. Dearborn, 19 N.H. 351, 357, 358; Watson v. Walker, 23 N.H. 471, 495; Bowman v. Sanborn, 25 N.H. 87, 107; Heath v. West, 26 N.H. 191, 198; Webster v. Clark, 30 N.H. 245, 253, 254; Pillsbury v. Locke, 33 N.H. 96, 103; Currier v. Railroad, 34 N.H. 498, 508; Pembroke v. Allenstown, 41 N.H. 365, 369; Whitehouse v. Hanson, 42 N.H. 9, 25; Robinson v. Gilman, 43 N.H. 295, 297; State v. Shinborn, 46 N.H. 497, 504; Kelsea v. Fletcher, 48 N.H. 282; Watts v. Sawyer, 55 N.H. 38, 40, 41; Pinkham v. Benton, 62 N.H. 687, 690; Richardson v. Railroad, 80 N.H. 370, 372.
The plaintiffs rely upon the case of Dunklee v. Prior, 80 N.H. 270, and contend that the court, in rejecting the statement, must have found that the witness was merely undertaking to tell the claims agent "some narrative which had been told to him by some one else." There is nothing in the transferred case to warrant such a conclusion. The presiding justice did not profess to decide any preliminary question of fact, but ruled that the statement, though true when given, was inadmissible as a matter of law. Manifestly this ruling constituted reversible error.
2. Although the defendant took the deposition of John Ramamovitch, the plaintiffs were entitled to use it. Taylor v. Thomas, 77 N.H. 410. Such use was subject, however, to all proper objections and exceptions to the evidence therein contained, even to that which had been elicited by the defendant. 4 Jones, Ev. (2d ed.), 3766, 3767; Hatch v. Brown, 63 Me. 410; In re Smith, 34 Minn. 436, 439; Maldaner v. Smith, 102 Wis. 30, 40.
On all the evidence the jury might well have returned a verdict in favor of the defendant, believing that Ramamovitch was responsible for the accident and leaving the plaintiffs free to bring suit against him if they chose. The testimony objected to was an appeal to the sympathy and prejudice of the jurors, asking them in effect to find the railroad liable because Ramamovitch did not carry liability insurance. Piechuck v. Magusiak, 82 N.H. 429. The exception is sustained.
New trial.
All concurred.