Manchester Assur. Co. v. Oregon R. & Nav. Co.

• Decision Date: 09 January 1905
• Citation: 79 P. 60,46 Or. 162
• Parties: MANCHESTER ASSUR. CO. et al. v. OREGON R. & NAV. CO. [*]
• Court: Oregon Supreme Court

79 P. 60

46 Or. 162

MANCHESTER ASSUR. CO. et al. v. OREGON R. & NAV. CO. ^[*]

Supreme Court of Oregon

January 9, 1905

Appeal from Circuit Court, Umatilla County; W.R. Ellis, Judge.

Action by the Manchester Assurance Company and another against the Oregon Railroad & Navigation Company. From a judgment in favor of defendant, plaintiffs appeal. Reversed.

The plaintiffs seek to recover damages for loss by fire alleged to have been occasioned by the negligence of the defendant its agents and employés. The verdict and judgment of the circuit court were for defendant, and plaintiffs appeal.

J.J Balleray and John McCourt, for appellants.

H.F Conner, for respondent.

WOLVERTON J.

The defendant, to show that it had observed proper care and precaution in keeping its engines and the smokestacks thereof in suitable repair, to prevent the escape of sparks and fire and the consequent injury to the property of others along the line of its railroad, called one Whitby as a witness, who testified that his occupation was that of a boilermaker; that he was and had been in the employ of the defendant; that he inspected locomotives at times, but that he could not testify from memory regarding any inspection of engine No. 400--the one supposed to have done the damage. A book was then placed in his hands, and his attention called to a page purporting to show the examination, condition, and repair of the smokestack and ash pan of such engine at La Grande from time to time during the month of December, 1902. This book is ruled in columns headed, respectively: "Date of Examination"; "Condition of Smokestack and Netting"; "Repaired, State Nature of Repairs"; "Condition of Ash Pan and Netting"; "Repairs, State Nature of Repairs"; "Signature of Inspector"; and "Occupation." Within the column headed "Condition of Smokestack and Netting" is written the word "Good," opposite the figure "2" in the column headed "Date of Examination." The word "Good" is also written under the heading "Condition of Ash Pan and Netting," the name of C.W. Ellsworth under the heading "Signature of Inspector," and the word "Inspector" under that of "Occupation." The same thing appears as of dates December 3d and 5th. So of the 7th, 11th, 13th, 15th, 23d, 30th, and 31st, except that the name of J.A. Whitby appears under "Signature of Inspector," and "Boilermaker" under "Occupation." The witness then further testified that the signatures on the page were those of the witness, except the first three, and that the word "Boilermaker" was written by him, but that the word "Good," wherever appearing, was written by a clerk in the division foreman's office; that it was entered from reports that the witness turned in in writing; that when he signed the page he knew the entries as indicated by the clerk opposite his signature to be correct. On cross-examination the inquiry proceeded as follows: "Q. Do you know those entries there to correctly report the examinations made on those dates? A. They do. Q. What do you recall about the inspections except from this memoranda? A. When the book is given to me to sign, we have the memoranda right there, and look them over when we sign the book, to make sure it is right when we sign it. Q. You make those memoranda on what--a book? A. Yes, sir; a shopbook. *** Q. The book is still there, which you made the original entries in? A. I guess it is. Q. It is not here, is it? A. No, sir. Q. The clerk makes this, and you sign them? A. He keeps them, and copies them off of these reports. Q. Who told you he copied it off? A. I frequently see him." It is further shown that this book is signed by the inspector from the 1st to the 5th of every month following. The page alluded to had previously been offered and received in evidence without objection while Ellsworth, the inspector signing as of dates December 2d, 3d, and 5th, was on the stand, and likewise the entire book had been offered and admitted, which shows the inspection of many other engines during the same month; but at this time there was an objection interposed both to the memorandum, and to the witness using it, because it appears from the witness' statement that he did not make the entries, nor were they made under his supervision. Ellsworth, while a witness, testified that he made his reports sometimes on stubs, requisition stubbooks--anything to get them on--during the month, which he sent into the office, but that he had them before him when he signed up the exhibit. The objection to the memorandum itself is manifestly without merit, as at this time it had already been admitted in evidence without objection; and, as to the objection to the witness using it, we are of the opinion that it is also without merit, for the reason that the exhibit was already a matter in evidence, and, being so, there existed no good reason why the witness should not have been examined concerning it, nor why he should not have made such statements touching the real facts as he was enabled to with its aid. However, as this case must go back for a new trial on another point, we will state briefly the result of our investigation as to the admissibility and use of this memorandum for any purpose in the case.

Under the testimony of Whitby, the result of the inspections were first noted in a shopbook, and the memorandum in question was subsequently made up from these notations by the division foreman's clerk, and verified by the witness, who appended his signature in testimony thereof. The original entries are those made in the shopbook. Memoranda made up therefrom are but secondary evidence, and are not per se competent evidence of what was done; nor are they competent for use by the witness under any conditions unless they so refresh his memory that he would thereby be enabled to testify independently of them, or except the originals be lost, or their absence legally excused. State v. Magers, 36 Or. 38, 42, 58 P. 892; Haines v. Cadwell, 40 Or. 229, 66 P. 910. By the old law a witness might have refreshed his memory from the memorandum or writing made by himself or under his direction if made at or near the time, and while the fact or facts of which it speaks were fresh in his mind; and so he might have refreshed his memory from a memorandum or record made by another, if read by or to him when the matter was fresh in his memory, so that he was enabled to depose that the writing correctly represented his recollection at the time. 1 Greenl.Ev. (16th Ed.) § 439b; Abbott, Trial Brief (2d Ed.) 395; Stephens, Ev. art. 136; 2 Phillips, Ev. *916; Commonwealth v. Ford, 130 Mass. 64, 39 Am.Rep. 426. The statute has changed this rule, so that now a memorandum must have been made by the witness himself, or under his direction. B. & C. Comp. § 848. This statute, in the light of the law as it formerly stood, was probably designed to apply more particularly, if not exclusively, to those memoranda where, after consultation by the witness, his memory is not so refreshed that he can speak from his own recollection independently of the writing, because, if wholly refreshed, so that he can speak without it, it is not always necessary that he produce it in court; but, if reference is made to it while testifying, it is proper for the opposite counsel to cross-examine concerning it, to determine whether he is using it as evidence aside from his recollection. Friendly v. Lee, 20 Or. 202, 25 P. 396; State v. Magers, 36 Or. 38, 42, 58 P. 892; Haines v. Cadwell, 40 Or. 229, 66 P. 910; Hill v. State, 17 Wis. 675, 86 Am.Dec. 736; Folsom v. Apple River Logging Co., 41 Wis. 602. The theory of the law deducible from the books seems to be that a memorandum is but secondary evidence of the facts of which it speaks, the primary evidence being the knowledge of the witness, if he is able to testify truly as to the facts mentioned, or if he is enabled to testify from present recollection after having had his mind quickened by the memorandum--that is to say, of his own knowledge, independent of the memorandum; and it is only when this primary proof is not available that resort may be had to the secondary, so that it becomes necessary to show that the witness cannot speak from knowledge of the facts, or from present recollection thereof, after having consulted the memorandum, before it can become of evidentiary value, either as auxiliary, or an aid to the mind in speaking from it. Bradner, Ev. (2d Ed.) 472; Abbott, Trial Ev. (2d Ed.) 395, 396; Friendly v. Lee, supra; Howard v. McDonough, 77 N.Y. 592; Peck v. Valentine, 94 N.Y. 569, 571; National Ulster County Bank v. Madden, 114 N.Y. 280,...