Lassone v. Boston & L. R. Co.

• Decision Date: 25 July 1890
• Citation: 24 A. 902,66 N.H. 345
• Court: New Hampshire Supreme Court
• Parties: LASSONE v. BOSTON & L. R. CO.

24 A. 902

66 N.H. 345

LASSONE

v. BOSTON & L. R. CO.

Supreme Court of New Hampshire.

July 25, 1890.

Exceptions from Coos county; Bingham, Judge.

Action by William Lassone against the Boston & Lowell Railroad Company for personal injuries caused by defendant's negligence. Judgment for plaintiff. Defendant excepts. Exceptions overruled.

June 8, 1887, the plaintiff, with one Benton, while passing over the defendant's crossing in the village of Lancaster in a wagon drawn by a horse, was thrown out and injured. One of the rear wheels of the wagon was broken, and it was a question whether it was done by collision with the defendant's locomotive, or by the plaintiff's cramping the wagon and throwing himself and Benton out after passing over the crossing. On this question the character and extent of the injury to the wheel became material. One Woodward, who repaired the woodwork of the wheel, died before the trial. The plaintiff called his administrator, who testified that he had Woodward's account book, kept by Woodward in his lifetime, on which he found the following charge to Benton, (the owner of the wagon,) which the plaintiff elected to have read to the jury, subject to the defendant's exception: "June 8, 1887. To sixteen spokes, twenty cents apiece, $3.20." Before calling the administrator, the plaintiff introduced evidence tending to show that several spokes were broken, the tire badly crippled, and the axletree sprung, and that the injury appeared to have been caused by a blow. The plaintiff gave in evidence chapter 26. § 1, Laws 1883, and chapter 98, § 4, Laws 1885. Subject to the defendant's exception, the court declined to charge the jury that, "the declaration not counting on either of the statutes referred to, the jury cannot lawfully consider them upon the question of the defendant's want of care." Verdict for the plaintiff.

Ossian Ray and W. Beywood, for plaintiff.

W. S. Ladd and Fletcher Ladd, for defendant.

SMITH, J. The book of account of Woodward, supported by the suppletory oath of his administrator, would be competent evidence against Benton, in a suit by the administrator against him to recover for the repairs of the wheel. Dodge v. Morse, 3 N. H. 232. Is the book evidence against third parties? Account books of a party are not evidence where the dealing between the debtor and creditor is, as to the parties to the suit, a mere collateral matter. Woodes v. Dennett, 12 N. H. 510; Little v. Wyatt, 14 N. H. 23; Batchelder v. Sanborn, 22 N. H. 325; Leigh ton v. Sargent, 31 N. H. 119; Woods v. Allen, 18 N. H. 28; Harris v. Burley, 10 N. H. 171; Putnam v. Goodall, 31 N. H. 419; Brown v. George, 17 N. H. 128. These decisions were prior to the act of 1857, (Laws 1857, c. 1952. Gen. Laws, c. 228, § 13,) enabling parties to testify as witnesses in chief. But account books are still admissible, notwithstanding the party may testify as a witness in chief. Swain v. Cheney, 41 N. H. 232; Bailey v. Harvey, 60 N. H. 152; Sheehan v. Hennessey, 65 N. H. 101, 18 Atl. Rep. 652. Written entries by persons deceased may, under some circumstances. Be shown in evidence against third persons. There is a class of cases which holds that where a person has peculiar means of knowing a fact, and makes a written entry of the fact against his interest at the time, it is evidence of the fact as against third persons after his death, if he could have been examined as to it in his lifetime. Higham v. Ridgway, 10 East, 109, is a leading case of this character. The midwife's book of account was received for the purpose of showing the date of the birth of a person, which became important upon the question whether he was 21 years of age when he suffered a recovery to bar an estate tail. The entry made in the daybook under date of April 22, 1768, and marked "Paid" in the ledger October 25. 1768, was held admissible upon the ground that the party had peculiar means of knowing the fact, and that the entry was against his interest at the time it was made. "Here it appears distinctly from other evidence," said Lord Rlienborough, "that there was the work done for which the charge was made, * * * and the discharge in the book, in his own handwriting, repels the claim which he would otherwise have had against the father from the rest of the evidence, as it now appears. Therefore the entry made by the party was to his own immediate prejudice, when he had not only no interest to make it if it were not true, but he had an interest the other way not to discharge a claim which it appears from other evidence that he had." Warren v. Greenville, 2 Strange, 1129, is a similar case. To fortify the presumption that a surrender of a portion of the estate in question should be presumed from lapse of time, the debt book of a deceased attorney was produced, in which he made charges for suffering the recovery, and other charges for drawing and impressing the surrender. The charges appeared by the book to have been paid. This was held to be good evidence after the death of the attorney, who, if living, might have been examined to the fact. See, also, Spiers v. Morris, 9 Bing. 687; Marks v. Lahee, 3 Bing. N. C. 408; Whithash v. George, 8 Barn. & C. 556; Goss v. Watlington, 3 Brod. & B. 132; and Stead v. Heaton, 4 Term R. 669. In Middleton v. Melton, 10 Barn. & C. 317, the entry made by a deceased collector of taxes in a private book kept by him for his own convenience, in which he charged himself with the receipt of sums of money, was held to be evidence of the fact of the receipt of the money in an action against a surety on his official bond, although the parties by whom the money had been paid were alive, and might have been called as witnesses. The decision went upon the ground that the entry was to the prejudice of the party who made it. To the same effect is Doe d. Smith v. Cartwright, 1 Car. & P. 218, where the books of a collector of taxes, charging himself with the receipt of money, also the books of an insurance company, charging itself with receiving money, were admitted as tending to show an occupancy of certain premises by a party, in an action between third parties.

There is another class of cases in which entries have been received in evidence against third persons, if the entries were made by a person having knowledge of the fact entered, contemporaneously therewith, and in a course of business. Price v. Earl of Torrington, 1 Salk. 285, is a leading case of this character. The book kept by a clerk, in which was set down at night an account of the beer delivered out by the draymen during the day, and to which they set their names, according to the usual way of the plaintiff's dealing, was held good evidence of a delivery to the defendant, the drayman who delivered the beer sued for being dead. The cases are numerous where evidence of this kind has been received upon the ground that the persons who made the entries "had no interest to misstate what occurred." In Doe d. Patteshali v. Turford, 3 Barn. & Adol. 890, a memorandum of the fact and time of service, indorsed by one P. on a duplicate notice to quit, was, after the death of P., held admissible as being a minute in writing, made at the time when the fact it records took place by a person since deceased, in the ordinary course of his business, corroborated by other circumstances which render it probable that the fact occurred. In Nicholls v. Webb, 8 Wheat. 326, the record book of a deceased notary was held admissible. The entry in the margin was: "Indorser duly notified 19th (17th) July, 1819; the last day of grace being Sunday, the 18th." It was objected that the evidence was in the nature of hearsay. "But the answer is," said Judge Story, "that it is the best evidence the nature of the case admits of. If the party is dead, we cannot have his personal examination on oath, and the question then arises whether there shall be a total failure of justice, or secondary evidence shall be admitted to prove facts, where ordinary prudence cannot guard against the effects of human mortality?" In Nourse v. McCay, 2 Rawle, 70, to show that a deed was a forgery, the account book of a deceased magistrate, showing charges tor acknowledgments of three other deeds on the same day, and no charge for the acknowledgment of the deed in question, was held admissible. An entry made by a deceased clerk of a notary, of the dishonor of a bill of exchange, (which was presented by the clerk,) made in the usual course of business, at the time of the dishonor, in the book of the notary, was held admissible in Poole v. Dicas, 1 Bing. N. C. 649, upon the ground that the clerk had no interest to misstate what occurred. An entry in a deceased attorney's book, made in the usual course of business, produced to show the date of a lease, was held admissible in a suit between third parties, in Doe d. Reece v. Robson, 15 East, 32, where it was said: "The ground upon which this evidence has been received is that there is a total absence of interest in the persons making the entries to pervert the fact, and at the same time a competency in them to know it." "What a man has actually done and committed to writing when under obligation to do the act, it being in the course of the business he has undertaken, and he being dead, there seems to be no danger in submitting to the consideration of the jury." Welsh v. Barrett, 15 Mass. 380. In that case the book of a deceased messenger of a bank, in which, in the course of his duty, he entered memoranda of demands and notices to the promisors and indorsers upon notes left in the bank for collection, was received for the purpose of proving a demand on the maker and notice to the defendant as indorser of a note left in the bank for collection. The entry was held admissible on the ground that where the Lest evidence is, without the fault of the party, out of his power, so that it cannot be produced, the next in degree must be resorted to or justice would fail; and see Halliday v....