King v. Califano

• Decision Date: 01 March 1966
• Docket Number: No. F-548,F-548
• Court: Florida District Court of Appeals
• Parties: Mabrey Hall KING, Appellant, v. Diamond F. CALIFANO, Appellee.

Page 719

183 So.2d 719

Mabrey Hall KING, Appellant, v. Diamond F. CALIFANO, Appellee.

No. F-548.

District Court of Appeal of Florida, First District.

March 1, 1966.

Rehearing Denied March 28, 1966.

Leon G. Van Wert, of Howell, Kirby, Montgomery & Sands, Daytona Beach, for appellant.

Maurice Wagner, Holly Hill, and Richard D. Bertone, Daytona Beach, for appellee.

CARROLL, DONALD K., Judge.

The defendant in an automobile collision case has appealed from a final judgment entered by the Circuit Court for Volusia County, based upon a jury verdict for the plaintiff.

Two points are raised for our determination in this appeal: whether the trial court committed reversible error in refusing to allow a police officer on the witness stand to refresh his recollection from his personal notes; and whether the trial court committed such error in prohibiting the defendant's attorney from reading explanatory portions of the defendant's deposition after the plaintiff's attorney had read other portions thereof for the purpose of impeaching the defendant's trial testimony.

This litigation grew out of an intersectional collision on October 25, 1962, in Ormond Beach, Volusia County, Florida, between an automobile operated by the plaintiff and a car owned and operated by the defendant. The plaintiff in her complaint charged the defendant with the negligent and careless operation of her car, and the defendant's answer generally denied the allegations of the complaint and pleaded contributory negligence by the plaintiff. The case was tried before a jury on the issues of the defendant's negligence, the plaintiff's contributory negligence, and the amount of the plaintiff's damages.

Regarding the first point raised in the appeal--involving the trial court's refusal to allow a police officer to refresh his recollection from his personal notes--the officer in question was James M. Patterson, one of the two defense witnesses at the trial (the other was the defendant herself).

Patterson was the police officer who conducted an investigation at the scene of the accident shortly after the collision occurred. As a witness for the defendant, he was not allowed by the trial court to refresh his present recollection by referring to notes in his little black book, after having testified that he made an original accident report in pencil at the scene of the accident shortly after its occurrence, that the said report had been kept on file at the police station in Ormond Beach, and that it had been copied verbatim in ink sometime later by Patterson himself in the little black book, which he carried with him.

In many cases the appellate courts of Florida have had occasion to lay down the rules pertaining to the use by a witness of a memorandum with which to refresh his recollection. One of the clearest statements of this rule, distinguishing such use from a witness' use of the memorandum where there is no independent recollection, is found in the opinion of the Supreme Court of Florida in Volusia County Bank v. Bigelow, 45 Fla. 638, 33 So. 704 (1903), as follows:

'There is a clear and obvious distinction between the use of a memorandum for the purpose of stimulating the memory and its use as a basis for testimony regarding transactions as to which there is no independent recollection. In the former case it is immaterial what constitutes the spur to memory, as the testimony, when given, rests solely upon the independent recollection of the witness. In the latter case the memorandum furnishes no mental stimulus, and the testimony of a witness by reference thereto derives whatever force it possesses from the fact that the memorandum is the record of a past recollection, reduced to writing while there was an existing independent recollection. It is for that reason that a memorandum, to be available in such cases, must have been made at or about the time of the happening of the transaction, so that it may safely be assumed that the recollection was then sufficiently fresh to correctly express it. The assumed reliability of the memorandum as a contemporaneous record is the sole justification of its use by the witness, and hence it is essential in such cases that the witness should produce and testify by reference to the original memorandum, or satisfactorily account for its absence, before resort can be had to a copy.'

The District Court of Appeal for the Second District of Florida in Lobree v. Caporossi, 139 So.2d 510 (1962) applied the foregoing rule to the testimony of an investigating police officer who refreshed his memory by referring to his accident report, the appellate court saying:

'We are not aware of any jurisdiction that now excludes all of the testimony of an investigating police officer on the basis that he has refreshed his memory by referring to his accident report.

'Every day the police officials of the State of Florida, and the counties and cities therein, investigate automobile accidents and weeks, months or even years after the date of their investigation of the accident, they testify as to distances, skid marks, conditions of the automobiles, location of debris upon the highway and numerous other details which they learned in the course of their investigations. It would be utterly naive to assume that they are testifying from memory, for clearly they could not remember the details of each of the scores of accidents investigated by them. To have them endeavor to do so, that is, to testify from memory, without refreshing their memory, would be to invite total and complete, but inadvertent misstatements of fact as to such details. See Davis v. Brooks Transportation Company, 186 F.Supp. 366 (D.Del.1960).

'We, therefore, hold that the court erred in sustaining the objections to the testimony of the police officers.'

Nevertheless, in the case at bar the trial court sustained the plaintiff's objection to Patterson's use of his said notes in testifying, directed Patterson not to use them further, and immediately charged the jury that the 'testimony based upon the notes, is not to be regarded by you as evidence in this case.'

As we read the trial transcript in this case, it seems to us that Patterson was entitled to make use of the notes in question in order to refresh his recollection while testifying concerning the detailed facts at the accident scene, under the abovequoted rules recognized in the Bigelow and Lobree cases and in many other Florida decisions. We think that those notes were essentially used as a 'stimulus' or 'spur' to his memory and independent recollection.

While, as mentioned earlier, the notes used by Patterson on the witness stand were not his original notations, he testified that the notes so used were made by him sometime after the accident and were identical...