Koehler v. Abey

Ostrander, C. J. (after stating the facts). The learned trial judge expressed his views in the following language: “It does not seem to me, in view of the fact that the burden of proof in cases of this description is upon the plaintiff, and in view of the fact that the plaintiff must make out a prima facie case before there is anything to be submitted to the jury, that a jury can be permitted to guess from documentary evidence originating with a live witness whether or not his * * * recollection is a prompted recollection or not. And, when he is unable to say to you that he gave the notice contemplated by the statute, I don’t think that these other documents under the circumstances of this case are receivable in evidence. It appears beyond controversy that at some time (the) commissioner of labor had cleaned house in and about his office, and the records of 25 years’ standing and upwards were all destroyed. So there is no way of show — 119 — ing whether the duplicate notice, the notice contemplated by the statute, was ever made; whether there was ever any such notice or not.” The ultimate fact sought to be proved was that an order to guard the planer had been made. The witness testified, in substance, that, with or without the aid of the memorandum, he had no present recollection of the fact. If he had testified that the writing refreshed his recollection, so that he had a present recollection of the fact sought to be established, the writing would not have been admissible as further substantive evidence of the fact. In such a ease it is the testimony of the witness, the recollection, which is evidence, not the document or writing used to refresh recollection. In testifying that the memorandum or notation made by him in his field book indicated that at the time when it was made the planer knives were not guarded, the witness testified to what is obvious. The memorandum indicates, not only that, but it indicates, also, that the inspector left an order to guard the planer knives. The book was kept for the purpose of recording just such facts as the memorandum imports. It is supplemented by the printed, authoritative report of the commissioner of labor, which indicates that the inspector, witness, pursuant to law, made to the commissioner a report in harmony with the memorandum of fact which was made in the field book.' In Fisher v. Kyle, 27 Mich. 454, it appeared that the trial court refused to permit an attorney to read to the jury the minutes taken by him of testimony given on a former trial. This court, speaking by Cooley, J., said: “Had Draper testified to any present recollection of what these witnesses swore to, he would have been allowed to state what it was. But clearly his minutes, taken at the time, and which he swore were correct, were much less liable to err than any recollection he might have could possibly be. His minutes embodied his understanding of the evidence at the time, and would remain the same, and not become varied in the lapse of time; but his recollection, which would start with the same understanding, was — 120 — constantly liable to be more or less perverted and changed, or in material parts obliterated from the memory. It could not possibly, therefore, be more certain than the minutes, and, as every variation from the minutes must render it more uncertain and unreliable, any rule of evidence which would admit the recollection and exclude the minutes must obviously be illogical and unsound. We approve, in this regard, of the case of State v. Rawls, 2 N. & McC. [S. C.] 334, and Halsey v. Sinsebaugh, 15 N. Y. 486, which we think lay down the true rule, and explain the origin of some misapprehensions regarding it.” See, also, Spalding v. Lowe, 56 Mich. 366 (23 N. W. 46); Lucker v. Liske, 111 Mich. 683 (70 N. W. 421); Draper v. Brown, 153 Mich. 120, 132 (117 N. W. 213). In Halsey v. Sinsebaugh, 15 N. Y. 485, referred to by Mr. Justice Cooley, the opinion was written by Judge Selden. He said, in part: “The learned judge who presided at the trial seems to have followed the rule laid down by Mr. Phillips in his work upon Evidence, which is, in substance, that such memoranda may be used to refresh the recollection of the witness, but can have no force as evidence, unless the witness, after referring to the memorandum, has a present recollection of the facts to which the memorandum relates. “This was, no doubt, at one time, supposed to be the true rule; and, as such, it was adopted and followed in several cases by the courts of this and other States. Lawrence v. Barker, 5 Wend. [N. Y.] 301; Feeter v. Heath, 11 Wend. [N. Y.] 485; Calvert v. Fitzgerald, Litt. Sel. Cas. [Ky.] 388; Juniata Bank v. Brown, 5 Serg. & R. [Pa. ] 232. But in the case of State v. Rawls, 2 Nott & McC. [S. C.] 334, this rule was subjected to a critical examination by the Constitutional Court of South Carolina, and was, as I think, proved to have originated in a misapprehension of the cases of Doe v. Perkins [3 D. & E. 752], and Tanner v. Taylor [MSS.], cited by Mr. Phillips in its support. The commentary by Nott, J., upon those cases shows conclusively that the memoranda there produced were not the originals made by the witness at the time the events occurred, but mere copies or extracts from such originals taken long afterwards. “This commentary, which is quoted in extenso and approved by Cowen, J., in the case of Merrill v. Rail — 121 — road Co., 16 Wend. [N. Y. ] 586 [30 Am. Dec. 130], seems to me entirely just and sound; and I entertain no doubt that Mr. Phillips fell into an error from not discriminating with sufficient care between the original memorandum itself and a mere copy. This subject is treated with much learning and ability in the Notes to Phillips’ Evidence, by Messrs. Cowen & Hill (note 528 to p. 290), where the authorities bearing upon it are elaborately reviewed; and I fully assent to the principle there stated, ‘that an original memorandum, made by the witness presently after the facts noted in it transpired, and proved by the same witness at the trial, may be read by him, and is evidence to the jury of the facts contained in the memorandum, although the witness may have totally forgotten such facts at the time of the trial.’” In State v. Rawls, 2 N. & McC. (S. C.) 331, the rule is stated in the headnote as follows: “Where a person who is a witness to a particular transaction, has made a memorandum at the time of certain facts for the purpose of perpetuating the memory of them, and can, at any subsequent period, swear that he had made the entry at the time for that purpose, and that he knows from that memorandum that the facts did exist, it will be good evidence, although the witness does not retain a distinct recollection of the facts themselves.” In Jones on Evidence (2d Ed.), § 883, the effect of the testimony identifying the writing, plus the writing itself, is said tobe “the equivalent of a present positive statement of the witness, affirming the truth of the contents of the memorandum.” And in 1 Wigmore on Evidence, § 747, it is said in analyzing and illustrating the rule: “The witness must be able now to guarantee that the record accurately represented his knowledge and recollection at the time. The usual phrase requires the witness to affirm that he ‘ knew it to be true at the time.’ ” Under this rule, the memorandum was competent evidence of the fact recorded therein if its verity as a record of fact was sufficiently established. Was the fact that it was true when made sufficiently guaranteed ? Upon this point the only doubt which can exist arises — 122 — from the testimony of the witness tending to prove that, notwithstanding the record, and what it imports, he may have in fact left no order with the proprietor, but have merely given one to the men, or to one of them employed there, to replace a guard which had been removed. In short, he professed to have a present recollection, which discredits, if it does not deny, the truth of a memorandum which he admits having made in the performance of official duty. I am of opinion that the question whether the truth of the memorandum was sufficiently guaranteed was one for the court to determine, and that, as the record stood, it was not error to exclude the memorandum. But I am impressed that, under the circumstances disclosed, it was error to exclude testimony of the routine duties of the inspector. The ground of the ruling was that the inspector could not have duties in the premises other than those prescribed by the statute. Now the statute does not say that the inspector shall carry a book, or shall make any memorandum of his acts other than to make a report thereof. But it appears that the witness carried a book in which he made memoranda. His testimony indicates that the book was furnished by his superior for the purpose of making memoranda therein. The heading referred to indicates that he was expected — required — to make a memorandum thereunder in accordance with the fact. Was he also expected to — required to —make a memorandum thereunder not in accordance with the fact which the heading indicates ? For example, was it his duty to make such a memorandum as well when he told a workman who had removed a guard placed by the employer to replace it as when he ordered the employer to guard the machine ? If it was not a duty, was it a habit of the witness to make such memoranda in either case ? And, if it was not his habit, did he occasionally make false entries ? It must be kept in mind that the discovery, and not the suppression, of material facts, is the purpose of the court, and that a party litigant has the right to prove material facts by competent evidence. Under the — 123 — rule which has been stated, this book was competent evidence of the recorded fact, although the witness had forgotten the fact, if the accuracy of the record was established. It would have the same probative value as the testimony of the witness that upon the occasion in question he ordered defendant to guard the planer knives. Spalding v. Lowe, supra. The testimony of the witness tended somewhat to discredit the accuracy of his memorandum, to deny that it meant, when made, what it seems to mean when read in the light of the duty he was performing, and in the light of his statement that it was a memorandum made by him at the time, and that he cannot now tell whether he did or did not leave an order to guard the planer. Counsel should have been permitted considerable latitude in examination of the witness upon the subject of his routine duties to discover whether the witness can now sufficiently guarantee that the memorandum was true when made. While it was persuasive evidence that the memorandum in the field book was not spurious, but was made at the time indicated in the discharge of the official duty of the witness, the annual report was not, in my opinion, evidence of the fact that an order to guard the planer had been made. 'the judgment is reversed, and a new trial ordered. Steers, Moore, McAlyat, and Stone, JJ., concurred.