Morris Kirschman & Co., Inc. v. Garrett, V-497

• Decision Date: 21 February 1975
• Docket Number: No. V-497,V-497
• Citation: 308 So.2d 575
• Parties: MORRIS KIRSCHMAN AND COMPANY, INC., and Continental Insurance Company, Appellants, v. Thomas G. GARRETT and Willie Mae Garrett, Appellees.
• Court: Florida District Court of Appeals

Page 575

308 So.2d 575

MORRIS KIRSCHMAN AND COMPANY, INC., and Continental Insurance Company, Appellants, v. Thomas G. GARRETT and Willie Mae Garrett, Appellees.

No. V-497.

District Court of Appeal of Florida, First District.

Feb. 21, 1975.

Rehearing Denied March 19, 1975.

Robert P. Gaines of Beggs, Lane, Daniel, Gaines & Davis, Pensacola, for appellants.

James F. McKenzie of Levin, Warfield, Middlebrooks, Graff, Mabie, Rosenbloum & Magie, Pensacola, for appellees.

MILLS, Judge.

Appellants, defendants below, seek reversal of a judgment awarding appellees, plaintiffs below, damages in an automobile personal injury action.

The issues raised by this appeal are:

1. Did the trial court err in overruling defendants' objections to plaintiff testifying from and subsequent introduction into evidence of reproduced copies of his form 1099, United States Information Return, prepared by his employer?

2. Is proof of necessity and reasonableness necessary before medical bills may be introduced into evidence?

During interrogation by his attorney, plaintiff was handed reproduced copies of his 1970, 1971 and 1972 form 1099 United States Information Return originally prepared by his employer. Plaintiff was asked if these copies showed his income for the stated years and he replied that they did. Plaintiff was then asked what his income was in each of the three years. Defendants timely objected on the ground that if plaintiff was going to testify from the forms, they should be the originals. The trial court overruled the objection and permitted plaintiff to state his income for each of the years.

Immediately following this line of interrogation, plaintiff offered the form 1099 copies into evidence. The court overruled defendant's objection on the ground they were hearsay.

Subsequently, over defendants' objection that no predicate had been laid, the court permitted plaintiff to offer into evidence a physician's bill and a medicine bill based on plaintiff's testimony that he had been treated by the physician who prescribed the medicines and he had paid the bills.

We are of the opinion the trial court committed reversible error.

Though a witness may be permitted to consult a writing to refresh his memory, a proper predicate or foundation must be laid. Likewise, a foundation must be laid for introduction into evidence of a writing which does not refresh his memory but records his past recollection. ¹

Before a copy of an original writing may be admitted into evidence, the absence of the original and copy must be explained. ²

The hearsay forms 1099 were not admissible into evidence under the exception set forth in Section 92.36(2), Florida Statutes, as the foundation required by the provisions of this section was not established.

Plaintiffs laid no foundation for use of the reproduced copies of form 1099 while testifying or their subsequent admission into evidence.

The burden is upon a plaintiff to prove the necessity and reasonableness of medical bills. ³ This plaintiffs here failed to do.

For the reasons set forth above, this cause is remanded for a new trial on the issue of damages only, defendants having admitted liability.

McCORD, J., concurs.

BOYER, Acting C. J., concurs specially.

BOYER, Acting Chief Judge (concurring specially).

I concur in the decision reached, and in the actual statements contained in the foregoing opinion.

However, insofar as the above opinion might be construed to mean that a witness on the stand may not refresh his memory as to his income during a particular year by referring to United...