Shepherd v. Denver & R. G. R.

STRAUP, J. The plaintiff brought this action to recover damages for the loss of a leg. In the complaint it is alleged that he was in the defendant’s employ as a laborer shoveling’ cinders in its yard at Thistle, and in the performance of his work was required to be on the track between the rails; and that the defendant, without observing a lookout or giving warning, ran over him with one of its engines. The defendant answering admitted the injuries on the day alleged, the 5th of January, 1911, denied the charged negligence, and pleaded contributory negligence and assumption of risk. The case was tried to the court and a jury, and resulted in a verdict in favor of the defendant. The plaintiff appeals. — 297 — The principal assignment relates to the admission of certain evidence over the plaintiff’s objections. The bill recites that evidence on behalf of plaintiff was given to support the allegations of his complaint, and on behalf of the defendant to disprove them; and that a verdict either in favor of the defendant or the plaintiff would be supported by evidence. There is no dispute that the plaintiff, while working on the track in the defendant’s yards at Thistle, was injured on the 5th day of January, 1911, by an engine operated or pushed against him. In that respect the bill recites that the plaintiff adduced evidence tending to show that the engine in the yard, without notice or signal, -was operated towards him, who, at work on the track, did not see the approaching engine because of the dead engine between him and the approaching engine; and that the approaching engine was operated against the dead engine, causing it to be pushed or moved against him. The defendant adduced evidence tending to show that two engines coupled together were moved along the track in the yard in clear view of the plaintiff for 500 feet or more, and that timely signals and warnings were given of their approach, and that it was not, blit the plaintiff was, negligent. The plaintiff called as a witness in his behalf one Ralph Lewis, who testified that he was acquainted with the yards at Thistle, and while traveling from his ranch to Spanish Fork with a load of lumber, and passing through Thistle, witnessed the accident about seventy-five feet away. He testified that two engines coupled together were, without warning or signals, operated against a third engine, which was pushed against the plaintiff and injured him. On cross examination he testified that he was taking the lumber to Spanish Fork, a town beyond Thistle, and reached Spanish Fork on the night of the day of the accident and there made delivery of the lumber the next morning to the Farmers’ Coop store, and was given credit for it. He further testified that one Joseph Hanson was the owner of the Co-op, and that he did the business with him. The defendant called Joseph Hanson, who testified that he was the manager of the Co-op store and that the witness — 298 — Ralph Lewis bad bad an account at tbe store. Then he was asked by tbe counsel for defendant: “Q. Have you tbe boobs with you that show his account? A. Yes, sir. Q. Will you turn to bis account, please? (Witness opened book.) When did he open up his account with you? (That was objected to by counsel for plaintiff as ‘irrelevant, incompetent, and immaterial; wholly collateral, and hearsay as to this plaintiff.’) Counsel for Defendant: If these books, your honor — the witness testified with respect to a load of lumber that was delivered, and that he had an account there and got credit for it. Counsel for Plaintiff: We submit that it is immaterial and entirely collateral — collateral issues — if we took his answer on immaterial matter on cross examination. Counsel for Defendant: But it was not an immaterial matter; it was of vital importance. (The objection was overruled, to which the plaintiff excepted.) The witness answered: His account was opened up February 23, 1911, on the books — his individual account. Q. That was the beginning of his account? A. Yes, sir. Q. Now, do your records disclose any credits that the Farmers’ Co-op gave him for any load of lumber? A. Yes, sir. Q. On what date? Counsel for Plaintiff: Now, that is objected to as irrelevant, incompetent, and immaterial. The Court: I think that would be incompetent, probably. I don’t see on what theory you would be able to get that in. Counsel for Defendant: The witness testified that on January 4th (5th) he came down the canyon with a load of lumber, and he said that on the very next day he made delivery of that load of lumber.” Here, on the settlement of the bill, a controversy arose between counsel as to a statement or remark made by counsel for plaintiff. As shown by the transcript of the official reporter, what counsel said was, “I shall withdraw the objection.” Counsel for plaintiff, however, urged, at the settlement, that his remarks were not correctly reported, and that what he in fact said was, ‘ ‘ I still insist on the objection, ’ ’ but that the objection was overruled, to which ruling he excepted. The court, in such particular, settled the bill as shown by the reporter’s transcript, but at the same time, — 299 — and in that connection, put in the bill this statement by the court: “I feel very confident that counsel for plaintiff protected himself in the matter of the introduction of that testimony. While I could not remember it as to the specific questions and answers, that matter was in my. mind all the way along there that he was strenuously objecting to that contradicting testimony. I thought at the time it was proper to be admitted. I think now that it should have been admitted, or else I should have granted a new trial on the theory that that evidence had been admitted over the objection of counsel for plaintiff. I understood all through and in the matter of the argument for a new trial that counsel for plaintiff had saved the record on the introduction of that testimony.” Recurring to the further examination of the witness Hanson with the boobs, counsel for defendant further asked him: “Q. Now, the question was, on what date were any credits given him (the witness Ralph Lewis) for a load of lumber? A. The first credits we have here, or, at least, one credit we have, is May 5, 1911, ‘By lumber, $19.53.’ Q. And do your records disclose how much lumber? A. No, sir. Just the amount of dollars and cents he got for his lumber.” The witness further testified that when a load of lumber was delivered credit slips in duplicate were made, one given to the customer and one retained by the store, “and every morning they were copied on the daybook, and from the daybook onto the ledger.” On cross examination he was asked: “Q. The books you have here are merely ledgers? A. Yes, sir; they are ledgers. Q. And the course of your business,. I assume, was to have some other book of original entry? A. Yes, sir. Q. What do you call it? Daybook? A. Yes, sir. Q. And before that entry there would be a slip? A. Yes, sir. They should all correspond in dates.” In response to further questions on cross examination, the witness testified that Ralph Lewis had no individual account prior to February 23, 1911, but that Lewis Bros, had an account covering January 4, 1911, and that there was a balance due them on January 3, 1911, and that they had an — 300 — account with them in December, 1910. ITe was further ashed on cross examination: “Q. Do you remember whether or not he (Ralph Lewis) delivered some lumber to you on any account, or delivered lumber to you in January, 1911? A. No-, I don’t remember. He might brought lumber, and might not have brought lumber. There was several .loads of lumber came in with different boys, and it is two years ago, and I don’t try to remember those things, because we keep track of them on our books.” On re-direct the witness was asked: “Now, will you be good enough to look at the account of Lewis Bros., which you said was in December, 1910? A. Yes, sir. Q. Is that account credited with any lumber, and, if so, what? A. There is a little credit in December, 1910. Q. Now turn to the Lewis Bros, account in the other book, if you please. A. The two Lewis Bros.? A. Yes. (Witness opens book.) ' Is the account that you are now looking at the one subsequent to December, 1910? A. Yes, sir; that is carried from this book into this one. That is a corresponding chain of accounts. There is a $62.82 credit to Lewis Bros. Q. Did you carry the account from this book into the one that you have in your hands? A. Yes, sir. Q. ,On what date does the credit appear there? A. It appears January 3d, when it was transferred. Q. And when did you balance up this account? A. It was balanced on January 3d. Q. Confine your attention to this account. Will you please examine it and tell me whether there were any credits for lumber, and, if so, when? Counsel for Plaintiff: I object to that as incompetent, hearsay, irrelevant, and immaterial. This book is not competent as against the plaintiff in this case. It is between other parties. Counsel for Defendant: But this is re-direct examination of the matter which you went into bn your cross examination. Counsel for Plaintiff: I submit it. (The objection was overruled and an exception noted.) Counsel for the Defendant (proceeding with the witness): Q. I am referring now to the account which begins January 3, 1911, which you say is a continuation of the other one. A. You ask for all the credits? Q. No, — 301 — merely the credits for any lumber, all tbe lumber credits. A. (Witness looking at the book.) We have one July 7, 1911; July 18th, $41.83; July 26th, $13.99; August 28th by lumber. That is the last credit of lumber to the Lewis Bros. ’ ’ Thus, it is made to appear that the defendant was permitted, by the account books of the Farmers’ Co-op store-books of a third party showing accounts of transactions between him and another, both strangers to both litigants — to contradict and disprove the testimony of plaintiff’s witness that he, on the morning after the accident, delivered to the Co-op store a load of lumber and was given credit for it. It is urged by plaintiff that this was improper: (1) Because the witness was permitted to be contradicted and impeached on a wholly collateral and immaterial matter; and (2) that, though it was proper to so contradict and impeach him, the evidence by which the contradiction and impeachment was permitted was incompetent for two reasons (a) the books themselves were res inter alios acta and hearsay; and (b) were not books of original entry. The plaintiff, however, is not entitled to a review of the ruling on the last alleged ground (b), because no such objection was made to the offer in the court below. 1 It is contended by the respondent that no sufficient and proper objections were made to the offer and admission of the evidence on the' other alleged grounds. The bill as settled shows a record somewhat uncertain as to whether an objection was made to the particular question asked the witness Hanson heretofore referred to; that is, though made, whether it was not withdrawn. But even as to that, the court certifies to us that counsel for plaintiff strenuously objected to “that contradicting testimony,” and that the court felt confident that he had protected himself and saved the record in such particular. However, independently .of that, we think the record shows sufficient and proper objections to the evidence and exceptions to the rulings complained of. At the very threshold, when the witness Hanson was called to the stand with the books of the Co-op store and was asked to turn to the account of the witness Ralph Lewis, and upon opening the book was asked to state — 302 — wben Ralph Lewis opened his .account with the store, plaintiff’s counsel objected, upon the grounds that the evidence sought was “irrelevant, incompetent, immaterial and wholly collateral, and hearsay as to this plaintiff,” and when the witness Hanson’s attention was called to the account beginning January 3, 1911, and was asked to examine it and to state whether there was any credit for lumber,- and if so to state when it was, further objections were made on the grounds that the testimony called for was “incompetent, hearsay, irrelevant, and immaterial” and that “this boob is not competent as against the plaintiff in this ease.” We think therefore the record discloses sufficient objections upon the grounds, not only that the testimony related to collateral and immaterial matters, but also that it was hearsay and incompetent; and that the objections were sufficiently specific to call attention of the court and counsel to the grounds upon which it was claimed the proffered evidence was objectionable and to entitle plaintiff to a review of the rulings in such particular. 2 Counsel do not dispute the familiar rule that a witness may not be contradicted or impeached on collateral, immaterial, or irrelevant matters; and that his answers, as to such matters drawn out on cross examination, are generally conclusive on the cross examining party, except such as bear on the recollection of the witness, or tend to show a state of feeling or bias, or source of knowledge, or interest in the litigation, or relation to the parties. The further well-known rule is also conceded that the test of whether the matter is collateral or not is -whether the party seeking to introduce the evidence for the purpose of contradiction or impeachment would be entitled to prove it as as a part of his case, or otherwise to prove the fact in his behalf. Now, measured by this test, appellant asserts that, since the exact time and place of the accident were wholly without dispute, the answer of the witness on cross examination that he, the next morning- after the accident, delivered a load of lumber to the Co-op store at Spanish Fork, was testimony respecting a wholly collateral and immaterial matter; and, though it was proper cross examination, the answer — 303 — of the witness was nevertheless conclusive on the cross examining party. At first blush that may seem plausible, but, on reflection, we are of the opinion that the fact of whether the witness delivered lumber at the store at Spanish Fork, as testified to by him, had some relation to the circumstance of his presence at the accident. The-witness testified that he passed the place of the accident with a load of lumber, witnessed the accident, and then drove from there with the lumber to Spanish Fork, arriving there in the evening, and made delivery of the lumber the next morning; and, when asked when he drew his pay, stated he was given credit for the lumber. Now, the fact that he did not deliver the lumber the next morning at the store as testified to by him, and made no delivery of lumber until some time thereafter, tended to discredit the statement of the witness that he had a load of lumber with him at the time of the accident; and that tended to discredit the statement that he was at the place of the accident and witnessed it. A case, as Ave. think, in point is East Tennessee, V. & G. R. R. Co. v. Daniel, 91 Ga. 768; 18 S. E. 22. The syllabus reflects the point decided. It is: “Wliere a witness, by way of accounting for his presence at the scene of the killing of an animal, states that immediately before going there he made a particular purchase at a certain store, evidence is admissible, in behalf of the opposite party, showing or tending to show that he made no such purchase on the occasion referred to. While this fact is not directly material on the circumstances of the killing, it is indirectly material, because it contradicts the witness as to the train of eVents which led him to be present, and thus tends to discredit him as to the fact of his presence.” Tbe following, on principle, are 1» the same effect: Sampson v. Hughes, 147 Cal. 62; 81 Pac. 292; Boche v. State, 84 Neb. 845; 122 N. W. 72; M., K. & T. Ry. Co. v. Milam, 20 Tex. Civ. App. 688; 50 S. W. 417. We are therefore of the opinion that the defendant, to impeach and contradict the witness, was entitled to prove the fact that he did not deliver the lumber to the Co-op store as testified to by him the next morning after the accident, — 304 — and to show when, if at all, he made delivery of lumber at the store. 3 The serious question is as to the competency of the evidence by which the defendant was permitted to prove such fact. It was entitled to prove it by any witness who had knowledge of the fact, but not by hearsay evidence. The defendant was permitted to prove it by entries in the account books, of the Co-op store, books of a third party showing accounts of transactions between him and plaintiff’s witness both strangers to both litigants. It did not attempt nor offer to prove it in any other. manner. While the defendant did not offer nor put the books themselves in evidence, yet it called the witness Hanson, the manager of store, identified the books by him, required him to take and open them and to turn to and examine the accounts between the witness Ralph Lewis' and the Co-op store, and to then state what the entries, us shown by the- books, indicated respecting the. delivery of lumber by Lewis and the credits given him therefor. Nowhere was the witness Hanson asked to testify, nor did he testify, as to the fact of whether the witness Ralph Lewis delivered lumber to- the store, and, if so, when such delivery was made. All that he was asked to state, and all that he did state, was what the books in such particular themselves showed., We think, as between the plaintiff and the defendant, the account books of the Co-op store, books showing accounts of transactions between parties both of whom were strangers to both litigants, were res inter alios acta and hearsay and not admissible. 2 Eiicy. Ev. 667, and numerous cases there referred to; 3 Jones Const, on Ev., section 574, and cases. To permit a witness as was done, to state what the books themselves showed— a witness to take them, turn to them, examine the accounts between the plaintiff’s witness and the Co-op store, and to state what they showed and indicated with respect to the delivery of lumber by Ralph Lewis and the credits- given him therefor — was equally hearsay and inadmissible. Thus, the fact that lumber was not delivered by the plaintiff’s witness to- the Co-op store the next morning after the accident, as testified to by him, and that no- delivery of lumber was — 305 — made by bim until some time thereafter, was not proven by the testimony of the witness Hanson, nor by any evidence, except by the books of the Co-op store. We think that was error. It is claimed, however, that the rule as stated is not “inflexible,” in support of which references ^are made where entries in books of strangers, used to refresh or aid the memory of a witness, or entries made in regular or due course of business, were admitted. The rule admitting books of account as primary and independent evidence of the facts therein recited, as was here done, is one thing. The rule permitting a witness to refresh or aid memory by referring to entries in books of account, or other books, documents, writings, or memoranda, is another and wholly different thing. When the memory of a witness may be refreshed, and the circumstances or conditions under which the book, document, or memorandum used'for that purpose may then be put in evidence, not as primary and independent evidence of the facts therein recited but in connection with the testimony of the witness, is stated and illustrated in 11 Ency. Ev. under the heading “Eefreshing Memory,” especially on pages 95, 136, 137, and 142. The familiar rule as there stated clearly shows that no sufficient or any foundation was here laid to permit the books to go, nor were they offered or received in evidence on any such theory, or for any such purpose. The record shows that the witness testifying to' the contents of the books was not asked to refresh, nor did he aid, his memory by referring to the books; nor did he give any testimony concerning the delivery of lumber by plaintiff’s witness, nor as to credits given him, except to identify the books and to state their contents to the jury. So is the distinction between books and accounts, and entries made in regular and due course of business, marked and well settled. 5 Ency. Ev. 255. They both are exceptions to the hearsay rule. The misapplication ' of the one cannot be excused or vindicated by pointing to the other. So, of course, may a witness, who testified‘having made or seen, or otherwise testified concerning, an entry or statement — 306 — in a book or instrument, be contradicted by tbe boob or instrument itself, in which case it matters not whether the book or instrument be that of one of the parties, or of another. But the question in hand is not that, nor when books may be used to refresh or aid memory and then be put in evidence, or when the entries made in due or regular course of business are admissible; but when may entries in boobs of account, not referred to or used to refresh or aid memory, be put in evidence as primary and independent evidence of the facts so entered and recited? We think they are inadmissible for such purpose, and hearsay, when they are, as they were here, entries in boobs of account of a third person of transactions or accounts between him and others not parties to the litigation. "We do not find the authorities discordant as to this. To regard the rule as here inapplicable is, we think, to disregard the basic principles upon which the shop-book rule rests, and to unsettle long* and well-established rules of evidence. 4 We are also of the opinion that the ruling was prejudicial. East Term., V. & G. R. R. Co. v. Daniel, supra; Cooper v. Hophins, 70 N. H. 271; 48 Atl. 100. As is contended by the defendant, and as we hold, the fact as. to whether the plaintiff’s witness delivered lumber to the Co-op store as testified to by him was material; the defendant says, “of vital importance.” But, as has been seen, the only evidence by which the defendant disproved or contradicted that testimony was by incompetent and hearsay evidence. It did not disprove it, nor offer, nor attempt to disprove it by any other evidence. Where thus a material fact is established by competent evidence on the part of one litigant, and against his objection his adversary is permitted vto contradict or disprove it by nothing bqt incompetent and hearsay evidence, prejudice will not only be presumed, but appears. The natural tendency of such evidence, under such circumstance, is harmful. To say that it did not have any harmful effect is conjectural and speculative. The judgment of the court below is therefore reversed, and the case remanded for a new trial. Costs to the appellant.