Parks v. Biebel

• Citation: 69 P. 273,18 Colo.App. 12
• Parties: PARKS et al. v. BIEBEL.
• Decision Date: 09 June 1902
• Court: Court of Appeals of Colorado

69 P. 273

18 Colo.App. 12

PARKS et al. v. BIEBEL.

Court of Appeals of Colorado

June 9, 1902

Appeal from district court, Gunnison county.

Action by Charles Biebel against John R. Parks and another partners. Judgment for plaintiff. Defendants appeal. Affirmed.

Sprigg Shackleford and S.D. Crump, for appellants.

Alexander Gullett, T.J. O'Donnell, and Milton Smith, for appellee.

WILSON P.J.

Defendants were contractors for building a hotel at Wuanita Hot Springs in Gunnison county. The plaintiff (appellee herein), under contract with them, hauled their building materials and supplies from the nearest railroad point to the building site, and also under contract with them, as alleged, did a considerable amount of work in repairing the wagon road between the railroad and the building site, so as to put it in proper condition for travel. This suit was brought by plaintiff to recover a balance due him upon account for services rendered in hauling the said building material and for work upon the road. Upon trial the plaintiff testified in his own behalf. In testifying he referred to a small memorandum book where he had made some memoranda in reference to some items, and dates of the work done by him. During the cross-examination the following occurred: "Q. How much have you on the book, that you actually performed labor there? A. I have not the dates there, but we simply charged twenty days for doing this work. Q. Let's see that book. A. No, you don't, either. (Witness refuses to let examining counsel see the book. Counsel for defendants move to suppress all the testimony of the witness which goes to any of the labor stated to be in this book, unless counsel and the jury have the right to inspect the book). By the Court: The evidence of the witness is that he did a certain amount of work. On cross-examination the defendants seek to have him particularize the days that he worked. The witness refers to his book to try and refresh his memory on that point. The court will not sustain the motion to strike out the evidence that he gives, if he attempts to use the book, unless it is admitted for inspection. The motion will be overruled." Defendants claim this ruling of the court to have been reversible error. It may be conceded that where a witness, in testifying, makes use of memoranda for the purpose of aiding him in testifying and where it appears that he could not testify precisely as to amounts and dates without the aid of such memoranda opposing counsel should be allowed the privilege of inspecting such memoranda; but it is equally true that proper application must be made for the exercise of such privilege. Here no application was made to the court for this privilege, and the court was not even requested to instruct the witness that counsel had a right to inspect the memoranda. It appears, further, that the book was not a regular...