Fisher v. Swartz

• Citation: 130 N.E.2d 575,333 Mass. 265
• Parties: Abraham F. FISHER v. Manuel SWARTZ.
• Decision Date: 30 November 1955
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 575

130 N.E.2d 575

333 Mass. 265

Abraham F. FISHER v. Manuel SWARTZ.

Supreme Judicial Court of Massachusetts, Dukes County.

Argued Oct. 31, 1955.

Decided Nov. 30, 1955.

Aram Garabedian, Worcester, H. Hoover Garabedian, Worcester, with him, for plaintiff.

Joel Goodman, New Bedford, for defendant.

Before QUA, C. J., and RONAN, WILKINS, SPALDING and COUNIHAN, JJ.

SPALDING, Justice.

In this action of contract to recover for labor and materials alleged to have been furnished to the defendant the plaintiff had a verdict. The case is here on the defendant's exception to a ruling on evidence.

The plaintiff testified that he furnished certain labor and materials in repairing a house owned by the defendant. While testifying he 'refresh[ed] his recollection' from a carbon copy of an itemized statement of charges made for the labor and materials furnished by him.

The statement contained more than a hundred items. The original of this statement had been sent to the defendant. Following the use of the copy to aid his testimony, the plaintiff offered it in evidence and the defendant objected. ¹ At the close of the colloquy set forth in the footnote the copy was admitted in evidence subject to the defendant's exception.

In support of the ruling the plaintiff argues that the statement contained business entries which were admissible under G.L. (Ter.Ed.) c. 233, § 78. But there is lacking here the preliminary finding by the judge of the statutory prerequisites. It is true that if nothing to the contrary appears the admission of the entries implies a finding of the facts prerequisite to their admission. Chadwick & Carr Co. v. Smith, 293 Mass. 293, 295, 199 N.E.2d 903; Sellew v. Tuttle's Millinery, Inc., 319 Mass. 368, 371, 66 N.E.2d 26. But here the contrary does appear. It is apparent from the record that no attempt was made to bring the statement within the statute and that counsel and the judge dealt with it on the basis of a memorandum which had aided the plaintiff while testifying. There is no basis, therefore, for assuming that the judge made the required preliminary findings.

If the evidence is admissible it must be on other grounds. A writing may be used by a witness in different ways. He may use it to revive or stimulate a present recollection, or, having no present recollection even with the aid of the writing, he may use it merely as a record of his past knowledge. Professor Wigmore has classified these situations as 'present recollection revived' and 'past recollection recorded' and several courts in recent years have employed these designations. Wigmore on Evidence (3d ed.) §§ 758, 734. United States v. Riccardi, 3 Cir., 174 F.2d 883, and cases therein collected. In order to decide whether the statement in question was admissible it becomes necessary to determine to which of these classifications it belongs, for the legal consequences are not the same. In a case of 'present recollection revived' the witness, although he may use the writing to refresh his recollection, must testify to the fact as he remembers it and he may not read or show the writing to the jury. But in a case of 'past recollection recorded' the judge in his discretion may permit a witness 'to incorporate in his testimony a writing expressive of his past knowledge, and to read it and even to show it to the jury.' Bendett v. Bendett, 315 Mass. 59, 64, 52 N.E.2d 2, 6. The rules applicable to these two situations were made clear in the case just cited which collected many authorities, and further citation is unnecessary. While the record in the case at bar is not as clear as it might be, we think that it may fairly be inferred that the writing was a record of the witness' past recollection and was treated as such by counsel and the trial judge. We are confirmed in this belief by the facts that the statement contained more than a hundred items and was 'the memorandum from which * * * [the] witness read,' and that an attempt was made by the plaintiff to obtain the original. The original is not necessary in a case of 'present recollection revived' but is necessary, if procurable, in a case of 'past recollection recorded.' Wigmore on Evidence (3d ed.) §§ 760, 749; McCormick on Evidence, §§ 9, 278; Shove v. Wiley, 18 Pick, 558, 563; Jewett v. United States, 9 Cir., 15 F.2d 955.

The defendant does not argue that the statement was not a record of past recollection. His position in substance is that it is not admissible in any event, and he relies on Bendett v. Bendett, 315 Mass. 59, 52 N.E.2d 2, cited above. That that case sustains the defendant's contention cannot be gainsaid. There the plaintiff while testifying had used a diary kept in the usual course of business to 'refresh his recollection.' It is not clear from the opinion--and an inspection of the original papers furnishes no additional light--whether the memorandum revived a present memory or was a record of past recollection. The opinion dealt with the question on the basis that it might have been the latter. So treated, the court said that it saw 'no reason for denying to the trial judge discretion to permit a witness to incorporate in his testimony a writing expressive of his past knowledge, and to read it and even to show it to the jury.' 315 Mass. at page 64, 52 N.E.2d at page 6. But, as the court pointed out, the judge went further and admitted the writing as independent evidence and not as a part of the testimony of the plaintiff. This was held to be error. The court recognized that in some jurisdictions, 'because of the slight practical difference between the incorporation of a writing in the testimony of a witness and the admission of the writing as evidence by itself, a written record of the past knowledge of a witness is held admissible in evidence.' 315 Mass. at page 64, 52 N.E.2d at page 6. The court, nevertheless, was of opinion that 'such a writing under some circumstances might have some inherent evidential weight independently of its adoption by the witness as the expression and embodiment of his testimony. In such a case, neither party would be entitled to have that weight thrown into the scale, on the merits of the case, unless the writing should be admissible on some other ground.' 315 Mass. at page 65, 52 N.E.2d at page 6.

In view of the importance of this question in the trial of causes we are disposed to reconsider it. Further study of the question has convinced us that both reason and authority lead to the conclusion that the writing ought to be admissible as evidence. It is to be noted that in the Bendett case a majority of the court was of opinion that, although it was error to permit the memorandum to be put in evidence, the error, nevertheless, was harmless. The reason was that the witness had testified with respect to the items contained in the memorandum and had been cross-examined about them. 'Thus,' said the court, 'the jury had been made familiar with everything material that was contained in the book. The admission of the book in evidence merely put before their eyes what they knew already. So far as appears there was nothing in the sight of the items in the book that was more convincing than the testimony of the plaintiff that they were the items in an account that he knew to be true. We do not see how the defendant was harmed.' 315 Mass. at page 65, 52 N.E.2d at page 6. But that would be the case in most if not all situations where a memorandum of past recollection was put in evidence. Prior to its admission the witness would usually have read to the court or jury the contents of the memorandum, and its admission as evidence, since it would have added little or nothing, would generally be treated as harmless error. We prefer a less squeamish approach to the question. Rather than to say the admission of the writing is error, but error that does no harm, we think that it is better to say that there is no error at all.

This is the prevailing view elsewhere and is favored by distinguished scholars in the field of evidence. Insurance Companies v. Weides, 14 Wall. 375; Ettelson v. Metropolitan Life Ins. Co., 3 Cir., 164 F.2d 660, 667; Schoborg v. United States, 6 Cir., 264 F. 1; Fowler v. Stanford, D.C.Mun.App., 89 A.2d 885; Roll v. Dockery, 219 Ala. 374, 122 So. 630, 65 A.L.R. 1473; Kinsey v. State, 49 Ariz. 201, 65 P.2d 1141, 125 A.L.R. 3; St. Louis Southwestern Railway Co. v. White Sewing...