Atlanta & St. A.B. Ry. Co. v. Ewing

• Decision Date: 27 October 1933
• Citation: 112 Fla. 483,150 So. 586
• Parties: ATLANTA & ST. A. B. RY. CO. v. EWING.
• Court: Florida Supreme Court

150 So. 586

112 Fla. 483

ATLANTA & ST. A. B. RY. CO. v. EWING.

Florida Supreme Court, Division B.

October 27, 1933

Error to Circuit Court, Jackson County; Amos Lewis, Judge.

Action by D. A. Ewing against the Atlanta & St. Andrews Bay Railway Company. To review a judgment in favor of the plaintiff, the defendant brings error.

Reversed and cause remanded.

COUNSEL Carter & Pierce, of Marianna, and Thomas Sale of Panama City, for plaintiff in error.

J. H Carter, Jr., of Marianna, and A. M. Douglas, of Panama City for defendant in error.

OPINION

BROWN Justice.

This case is before us upon writ of error brought to review a judgment against the plaintiff in error, defendant in the court below, for damages alleged to have been caused by fire set out by the defendant's locomotive at or near the turpentine still of the defendant in error.

Both the cause of the fire and the amount of the damages done to plaintiff's trees were sharply contested issues in this case. On the question of the amount of damages done and the number and size of the trees injured or destroyed by the fire, the defendant in the court below introduced as a witness in his behalf one J. A. Smith, who testified that he had been a timber cruiser for almost twenty years that he was familiar with the land involved in the suit; that he had examined the timber and had counted the trees burned and made notes on tally sheets at the time of the examination of the trees, and had then immediately made notes in a book, taking such notes from the tally sheets. The witness had the book with him, but did not have the original tally sheets, which he had left at home. Counsel for the plaintiff objected to the witness refreshing his memory by referring to the notes contained in the book. The court sustained this objection and the defendant excepted. The book itself was not offered in evidence, but was simply to be used by the witness to refresh his memory from notations made in the book immediately after having compiled therein data on the tally sheets. This witness was the defendant's main witness on this particular subject.

In the case of Adams v. Board of Trustees of Internal Imp Fund, 37 Fla. 266, 20 So. 266, it was held that witnesses are not only permitted to refresh and assist their memories by the use of written instruments, memoranda, or entries in books, made contemporaneously with the transaction to which they relate, but, if the...