Garrett v. Morris Kirschman & Co., Inc.

• Decision Date: 09 June 1976
• Docket Number: No. 47236,47236
• Citation: 336 So.2d 566
• Parties: Thomas G. GARRETT and Willie Mae Garrett, husband and wife, Petitioners, v. MORRIS KIRSCHMAN AND COMPANY, INC., a corporation, and Continental Assurance Company, a corporation, Respondents.
• Court: Florida Supreme Court

Page 566

336 So.2d 566

Thomas G. GARRETT and Willie Mae Garrett, husband and wife, Petitioners, v. MORRIS KIRSCHMAN AND COMPANY, INC., a corporation, and Continental Assurance Company, a corporation, Respondents.

No. 47236.

Supreme Court of Florida.

June 9, 1976.

Rehearing Denied Sept. 21, 1976.

Lefferts L. Mabie, Jr., of Levin, Warfield, Middlebrooks, Graff, Mabie, Rosenbloum & Magie, Pensacola, for petitioners.

Robert P. Gaines, of Beggs & Lane, Pensacola, for respondents.

HATCHETT, Justice.

Petitioners were the plaintiffs in an action brought against respondents on account of an automobile accident in which Mr. Garrett was injured. ¹ Mrs. Garrett sought compensation for loss of 'the services, society and consortium of her husband' (R 2) attributable to the accident. Because liability was conceded, the jury had only the question of damages to resolve. At the trial, petitioners' counsel undertook to prove, Inter alia, the extent of medical expenses incurred in consequence of the accident, and diminution of Mr. Garrett's income as a result of his injuries. Judgment was entered in favor of each petitioner.

On appeal to the District Court of Appeal, First District, that court 'remanded for a new trial on the issue of damages,' Morris Kirschman & Co. v. Garrett, 308 So.2d 575 (1975), with one judge concurring specially in the judgment. The majority concluded that copies of income tax forms which had been filled out by Mr. Garrett's employer, should not have been used to refresh Mr. Garrett's recollection, and should not have come into evidence. In addition, the District Court concluded that the burden of proving the necessity and reasonableness of Mr. Garrett's medical expenses was not met. We granted certiorari on the basis of conflict between the District Court's decision in this case and other Florida appellate decisions, among which are United Sand & Material Corp. v. Florida Indus. Com'n, 201 So.2d 451 (Fla.1967); Shaw v. Puleo, 159 So.2d 641 (Fla.1964); Lindberg v. State, 134 Fla. 786, 184 So. 662 (1938); Atlanta & St. A.B. Ry. Co. v. Ewing, 112 Fla. 483, 150 So. 586 (1933); Volusia County Bank v. Bigelow, 45 Fla. 638, 33 So. 704 (1903); Jenkins v. State, 31 Fla. 196, 12 So. 677 (1893); King v. Califano, 183 So.2d 677 (Fla.App.1st, 1966); Lobree v. Caporossi, 139 So.2d 510 (Fla.App.2nd, 1962); and Chaudoin v. State, 118 So.2d 569 (Fla.App.2nd, 1960).

We agree with the District Court that the portion of the judgment based on the verdict in favor of Mr. Garrett must be reversed because of the admission into evidence, over objection on hearsay grounds, of copies of Mr. Garrett's employer's tax returns. There was no requirement to lay any predicate, however, for the use of those documents to revive present recollection. Before the papers were offered into evidence, plaintiffs' counsel furnished them to Mr. Garrett while he was on the witness stand:

By Mr. Mabie:

Q. Would you tell us what your--first of all let me hand you this and ask you if this is a copy of your form 1099s, your United States Information Return for the calendar years nineteen seventy, and nineteen seventy-one, and nineteen seventy-two showing what your total income was for each of those respective years from ABC Auto Sales?

A. Yes, sir.

Q. And what was your income in nineteen seventy, the year before the accident?

MR. GAINES: We object to that on this record, Your Honor, on the grounds that this is a self serving declaration which he ² filed with the United States Government, and if he is going to testify from the records, it should be the original records.

THE COURT: Objection overruled.

A. In nineteen seventy I made sixteen thousand two hundred and sixty-two dollars and seventy cents.

MR. MABIE:

Q. And what in nineteen seventy-one?

MR. GAINES: Same objection, Your Honor.

THE COURT: Objection overruled.

A. Seven thousand nine zero one forty-eight.

MR. MABIE:

Q. And what was your income in nineteen seventy-two?

MR. GAINES: Same objection, Your Honor.

THE COURT: Overruled.

A. Six thousand six hundred and thirty-six dollars and forty-three cents.

Assuming for purposes of decision that the witness testified from present recollection, ³ the trial court correctly overruled defense counsel's objection. The use of copies of tax returns to stimulate and revive an independent recollection has been specifically approved by other courts, Freehill v. DeWitt County Service Co., 125 Ill.App.2d 306, 261 N.E.2d 52 (1970); J. A. Robinson Sons, Inc. v. Wigart, 420 S.W.2d 474 (Tex.Civ.App.1967), and is fully consistent with the general rules governing the revival of a recollection. See 3 Wigmore on Evidence § 758 Et seq. (1970); Maguire & Quick, Testimony: Memory and Memoranda, 3 How.L.J. 1 (1957). In requiring 'a foundation' for such use, the District Court stated a rule contrary to the law of Florida as laid down in United Sand & Material Corp. v. Florida Indus. Com'n, supra; Atlanta & St. A.S. Ry. Co. v Ewing, Supra; Jenkins v. State, supra; King v. Califano, supra; and Chaudoin v. State, supra.

When a writing is used only to revive present recollection, it need not have been written by the witness himself. Chaudoin v. State, supra ('no rule of evidence . . . prohibits a witness from referring to notes made by another to refresh his memory.' At 571--572). A paper used to revive present recollection does not have to be an original. Davis v. State, 47 Fla. 26, 36 So. 170 (1904); King v. Califano, supra; State v. Liston, 18 Or.App. 26, 523 P.2d 609 (1974). In many jurisdictions it is immaterial when the writing was made, if it is used only to elicit present recollection. Gauthier v. State, 28 Wis.2d 412, 137 N.W.2d 101 (1965) Cert. den., 383 U.S. 916, 86 S.Ct. 910, 15 L.Ed.2d 671 (1966); Smith v. Bergmann, 377 S.W.2d 519 (Mo.App.1964); Carter v. Carter, 187 Kan. 74, 353 P.2d 499 (1960); Smith v. State, 205 Tenn. 502, 327 S.W.2d 308 (1959), Cert. den. 361 U.S. 930, 80 S.Ct. 372, 4 L.Ed.2d 354 (1960). But Cf. Great Atlantic & Pacific Tea Co. v. Nobles, 202 So.2d 603 (Fla.App.1st Dist., 1967). As a corollary to the rules allowing such wide latitude in the choice of writings as mnemonic aids, he writings used to prompt recollection are not necessarily admissible in evidence themselves. If a writing is admissible independently, its use to spur a witness' memory does not disqualify it, but it cannot come into evidence on the coattails of the testimonial recollection it sparks.

It is the witness' testimony as to the substance of his recollection which constitutes the evidence, when a writing revives present recollection. A writing may serve to jog a witness' memory and also be admissible on some independent ground. But no such independent ground was established, in the present case, when the tax forms were physically introduced in evidence, over respondents' hearsay objection. ⁴ The writing on the tax forms was the work not of the witness but of another. Insofar as was shown at trial, the forms are simply a writing in which Mr. Garrett's employer, Mr. Huggins, recites what he paid Mr. Garrett. The unverified writing of a third person, like the ordinary speech of a third person, is hearsay. Pickrell v. State, 301 So.2d 473 (Fla.App.2nd, 1974); Bowen v. Seaward Dredging Corp., 242 So.2d 151 (Fla.App.3rd, 1970); Smith v. Frisch's Big Boy, Inc., 208 So.2d 310 (Fla.App.2nd 1968).

In order to be admissible, ⁵ such a writing must be shown to fall under an exception to the general rule excluding hearsay from evidence. Although the forms Mr. Huggins filled out were printed by the government, they are not official records for that reason. If these forms were filled out in the ordinary course of business, it was open to the plaintiffs' counsel to establish that fact, if he could, and bring them within the business records exception. It is immaterial that the documents could have been shown to be within an exception to the rule disallowing hearsay, if no foundation was in fact made.

The petitioners cite Jenkins v. State, 31 Fla. 196, 12 So. 677 (1893) for the proposition that a writing is admissible in evidence where '(n)o other use appears to have been made of such a memorandum book at the trial but to refresh the memory of the witness to whom it belonged in giving his testimony.' 12 So. at 678. Unlike the tax forms in the present case, the writing in Jenkins was the work of the witness whose memory was refreshed. It is not clear in the Jenkins case whether an adequate foundation had been laid for the 'memorandum book' at issue there, so as to qualify it as past recollection recorded. ⁶ Assuming no such foundation was laid, the decision in Jankins lends some support to petitioners' contention, but has been implicitly overruled on this point by cases decided in this century. E.g., United Sand & Material Corp. v. Florida Indus. Com'n, supra (although 'the original notes, memorandum or other document made contemporaneously with or soon after a transaction or event may be used by a witness . . . (s)uch a memorandum is not admissible as substantive evidence.' At 453.) If counsel had only to show a writing to a witness, ostensibly in hopes of evoking some recollection, in order to render the writing admissible in evidence, the hearsay rule could be circumvented, simply by reducing hearsay to writing for tendering to the witness. In this fashion, hearsay could be hoisted by its own bootstraps to the status of competent evidence.

Conceding Arguendo that the tax forms were hearsay and improperly admitted in evidence, petitioners argue that the error was harmless, because the forms were cumulative to Mr. Garrett's testimony. We reject the contention that this error was harmless. In fixing damages, the jury very likely took into account the difference between Mr. Garrett's earnings before the accident and his earnings afterwards. Aside from the forms, the only evidence as to Mr. Garrett's income after the accident was his own testimony, which was prompted by the tax...