Bendett v. Bendett
| Decision Date | 30 November 1943 |
| Citation | 52 N.E.2d 2,315 Mass. 59 |
| Parties | DAVID BENDETT v. ANNE BENDETT, administratrix. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
October 10, 1940.
Present: FIELD, C.
J., DONAHUE LUMMUS, QUA, DOLAN, COX, & RONAN, JJ.
Evidence Admissions, Declaration by deceased person, Competency Business records, Refreshment of witness's recollection. Witness, Refreshment of recollection. Practice, Civil Exceptions: whether error harmful. Error, Whether error harmful.
In an action against an administrator for money lent to his intestate, statements by the intestate against his interest were admissible in evidence against the defendant at common law as admissions by the intestate without the prerequisites to admission of a declaration by a deceased person stated in G. L. (Ter. Ed.) c. 233, Section 65, as amended, first being established.
Cash items in a book account exceeding $6.66 each are not admissible at common law.
Entries made by the plaintiff in a "little book" concerning loans to the defendant were not admissible as business records under G. L. (Ter. Ed.) c. 233, Section 78, where the evidence did not warrant a finding of the prerequisites of such admission specified in that statute.
After direct examination and cross-examination of a witness respecting the items contained in a writing used by him to refresh his recollection, the admission of the writing itself as independent evidence at the instance of the party offering the witness's testimony, although error, was not prejudicial to the opposing party, and his exception to its admission was overruled.
CONTRACT. Writ in the Superior Court dated May 11, 1939. The action was tried before Forte, J.
The case was argued at the bar of this court in October, 1940, before Field, C.J., Donahue, Dolan, Cox, & Ronan, JJ., and afterwards was submitted on briefs to all the justices.
G. L. Wainwright, (R.
Lederman & S. Sherman with him,) for the defendant.
J. J. Geogan, for the plaintiff, submitted a brief.
This is an action of contract, begun May 11, 1939, to recover for money lent to the defendant's intestate, Maurice Bendett who died in September, 1938. There was a verdict for the plaintiff, and the case is here on exceptions of the defendant to the admission of evidence.
Evidence was introduced by the plaintiff from several witnesses, to the effect that his brother, the defendant's intestate, needed about $10,000 with which to buy an agency; that the deceased said he had difficulty in repaying to the plaintiff the money lent, because of excessive overhead; that the deceased made certain payments to his father to be given to the plaintiff and credited in the plaintiff's "little book"; that the deceased said that he thought he would incorporate his business and give the plaintiff most of the stock so that he could realize some of his money that the deceased owed him when he began business, as that was the only way in which the deceased could pay him; and that the deceased said that he owed his family a large sum of money, over $5,000, and, according to the memory of one witness, around $10,000.
The judge admitted the foregoing evidence "de bene," that is, conditionally upon prerequisites of its admission being later shown. Clarke v. Fall River, 219 Mass. 580 , 586. Solomon v. Dabrowski, 295 Mass. 358 , 360. He was of opinion that the plaintiff was required to show that "the statements were made in good faith from personal knowledge." At the conclusion of the evidence, the defendant moved that the evidence of statements made by the defendant's intestate be struck out. No further evidence had been introduced that the statements were made in good faith upon personal knowledge. The judge denied the motion to strike out, and the defendant excepted.
Apparently the judge thought that the statements could be admissible only under G. L. (Ter. Ed.) c. 233, Section 65, since amended by St. 1941, c. 363, and St. 1943, c. 232. The parties argue the case upon the same assumption. But in truth the statements of the defendant's intestate were admissible at common law, as admissions. The defendant administratrix is defending against an alleged debt claimed to be due from her intestate, and any execution, except for costs, will run only against the goods and estate of the deceased in her hands. G. L. (Ter. Ed.) c. 230, Sections 1, 6, 8, 9. Statements made by the deceased were admissible against the administratrix, as admissions by one whose right she represents. Heywood v. Heywood, 10 Allen, 105. Crosman v. Fuller, 17 Pick. 171. Coit v. Howd, 1 Gray, 547, 550. Hughes v. Northampton Street Railway, 210 Mass. 206 , 210. Eldridge v. Barton, 232 Mass. 183 , 186. Boston & Northern Street Railway v. Goodell, 233 Mass. 428 , 438. Ferris v. Ray Taxi Service Co. 259 Mass. 401 , 404. Beauvais v. Springfield Institution for Savings, 303 Mass. 136 , 147. Carson v. Boston Elevated Railway, 309 Mass. 32, 33. Wigmore, Evidence (3d ed.) Section 1081.
The only other exception is to the admission in evidence of a "little book" or "small red diary," which the plaintiff had kept since 1921. He testified that that book was the only record that he kept in the ordinary course of business concerning his loans to the defendant's intestate. An inspection of the book, which is before us, shows that it contains various informal accounts and memoranda in pencil. One account in it purports to be with the defendant's intestate, and the items in that account are the same as those in the account annexed to the declaration, except that there is no item of interest.
The entries in the book were not admissible at common law as entries in a shop book or book account. For one reason, each of the items exceeded $6.66, which was the limit for items of cash payments or loans provable by entries in a book account. Cleave's Case, 3 Dane's Abr. 319 (1782). Union Bank v. Knapp, 3 Pick. 96, 109. Burns v. Fay, 14 Pick. 8, 12. Henshaw v. Davis, 5 Cush. 145. Turner v. Twing, 9 Cush. 512. Townsend Bank v. Whitney, 3 Allen, 454, 456. Maine v. Harper, 4 Allen, 115. Davis v. Sanford, 9 Allen, 216. Cheney v. Cheney, 162 Mass. 591 . Produce Exchange Trust Co. v. Bieberbach, 176 Mass. 577 , 587. Wigmore, Evidence (3d ed.) Section 1539.
The entries were not admissible under G. L. (Ter. Ed.) c. 233, Section 78. By that statute, certain prerequisites of admission must first be found by the judge, before the entries can be admitted. If nothing to the contrary appears, the admission of the entries implies a finding of the facts prerequisite to their admission. Taylor v. Harrington, 243 Mass. 210 , 213. Chadwick & Carr Co. v. Smith, 293 Mass. 293 , 295. Bodell v. Sawyer, 294 Mass. 534 , 542, 543. The bill of exceptions states that the judge made no such preliminary finding. Even if that be construed as negativing only an express finding, and not an implied one, there was no evidence upon which he could have found the statutory prerequisite that "it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter."
The plaintiff, while testifying, "refreshed his recollection" from the "little book" or "small red diary," already described. He was cross-examined about the items in the book. On redirect examination counsel for the plaintiff offered the book, and it was admitted in evidence over the exception of the defendant. Did these facts make the book admissible in evidence?
When a witness, while testifying, uses a writing to "refresh his memory" or recollection, either in the sense of stimulating and reviving a present recollection (Wigmore, Evidence [3d ed.] Sections 758-765; Director General of Railroads v. Eastern Steamship Lines, Inc. 245 Mass. 385 , 399), or in the sense of enabling him to testify to the fact from a record of his past knowledge (Ibid. Sections 734-735; Commonwealth v. Ford, 130 Mass. 64; Guiffre v. Carapezza, 298 Mass. 458 , 125 Am. L. R. 1, and note; Santarpio v. New York Life Ins. Co. 301 Mass. 207 , 210), the opponent may examine the writing or so much of it as relates to the case on trial, may cross-examine about it, and may introduce it in evidence to show that it could not or did not aid the witness in any legitimate way. Commonwealth v. Haley, 13 Allen, 587. Commonwealth v. Lannan, 13 Allen, 563, 569. Commonwealth v. Burke, 114 Mass. 261. Commonwealth v. Jeffs, 132 Mass. 5 . Donovan v. Boston & Maine Railroad, 158 Mass. 450 , 457. Commonwealth v. Burton, 183 Mass. 461 , 471. Capodilupo v. F. W. Stock & Sons, 237 Mass. 550 . Commonwealth v. Ponzi, 256 Mass. 159 , 161, 162. United States v. Socony-Vacuum Oil Co. Inc. 310 U.
Goldman v. United States, 316 U.S. 129, 132. Wigmore, Evidence (3d ed.) Sections 753, 762, 763. In this case the book was introduced in evidence by the proponent of the testimony, not by the opponent.
Where the writing actually stimulates or revives a complete present recollection, the witness must testify to the fact as he remembers it. He may not read or show the writing to the jury. Vicksburg & Meridian Railroad v. O'Brien, 119 U.S. 99, 102. Kelsea v. Fletcher, 48 N.H. 282. Graves v Boston & Maine Railroad, 84 N.H. 225. Lawrence v. Farwell, 86 N.H. 59, 63. National Ulster County Bank v. Madden, 114 N.Y. 280. McCarthy v. Meaney, 183 N.Y. 190, 193. Acklen's Executor v. Hickman, 63 Ala. 494. Roll...
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