Smith v. Bergmann, 23903

• Decision Date: 06 April 1964
• Docket Number: No. 23903,23903
• Citation: 377 S.W.2d 519
• Parties: John W. SMITH, Plaintiff-Respondent, v. Howard J. BERGMANN, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 519

377 S.W.2d 519

John W. SMITH, Plaintiff-Respondent, v. Howard J. BERGMANN, Defendant-Appellant.

No. 23903.

Kansas City Court of Appeals, Missouri.

April 6, 1964.

Paul H. Niewald, Gordon, Adams, Niewald & Risjord, Kansas City, for appellant.

Barkley M. Brock, Julius F. Wall, Poague, Brock & Wall, Clinton, for respondent.

HUNTER, Judge.

Defendant, Howard J. Bergmann, appeals from a judgment of the Circuit Court of Henry County, for plaintiff, John W. Smith, in the sum of $7,110.00. The suit was a result of an automobile collision on December 28, 1959, at the intersection of 10th and Washington Streets in Kansas City, Missouri.

Plaintiff was driving a Buick automobile north on Washington Street about 8:30 a. m. on a wet pavement resulting from rain and 'spitting snow'. Defendant was driving his station wagon automobile at about 15 to 20 miles per hour and was following behind plaintiff about 7 to 10 yards. As plaintiff's car was almost to the intersection of 10th and Washington Streets, the traffic control light changed to yellow and he applied his brakes and came to a stop near the south crosswalk. His car was then struck in the rear by defendant's oncoming car, allegedly causing a whiplash injury to his neck.

As a result of the trial, on Count I the jury awarded plaintiff $7,000.00 damages for personal injuries and on Count II, for damage to his Buick automobile, the jury awarded plaintiff $110.00. In appealing, defendant has limited his contentions of error to two items. The first is that the trial court erred in permitting plaintiff to read from a document not entered into evidence and not qualified for use in refreshing recollection.

Plaintiff was asked by his counsel what period of time he was off his job completely in March, 1930 and thereafter. Plaintiff wished to refer to a paper he stated he had prepared the night before, to refresh his recollection. Defendant objected that it was 'prepared just last night, and its not a document to refresh his recollection'. The objection was overruled and plaintiff answered, 'Well, I was off from March the 3rd until March the 7th, and then again I think I was off from March the 10th to June the 19th, I believe it was. Q. Do you know how many days you were off altogether there in those two or three months? A. I believe 41 days.' On cross-examination defendant's counsel elicited from plaintiff, who apparently testified from memory alone, that he missed some six weeks' work from March until June--'I was off in March, and then I was off again from May to June. * * * Q. And during most of March, except for five or six or seven days, you received full pay? A. Yes, something like that.'

Mr. Les L. Carter, plaintiff's employer during the time in question, testified without objection that plaintiff was off the payroll, according to the payroll reports, from March the 3rd to March the 7th, March the 10th to March the 16th and from May the 4th through June the 19th. And upon cross-examination defendant's counsel asked, 'Q. According to your payroll records there, from the document that you have refreshed your memory with, Mr. Carter, the only days that he missed in 1960 were March 3rd to March the 7th, 10th to 16th, and May 4th to June 19th? A. According to the payroll, that's right.'

It is difficult to tell from the record whether plaintiff actually glanced at the paper he had prepared the night before prior to answering the mentioned question. It is clear, however, that his answer purported to be from his memory and not merely a reading by him from the document.

While there is some conflict in the authorities the general rule as to when a writing or memorandum can be used by a witness to refresh his memory by reviving a present recollection from which he testifies is set out in summary form in 58 Am.Jur., Witnesses, Sections 584-585, pages 326 ff. as: 'The use of a memorandum to refresh memory is always permitted where the witness can, after consulting it, testify to the facts to which it relates from an independent recollection.' See, Annotations, 125 A.L.R. 62, 82 A.L.R.2d 496, 511; 98 C.J.S. Witnesses Sec. 358b, page 85. In State v. Bradley, Mo., 234 S.W.2d 556, 561, our Supreme Court stated the rule thusly, 'If a reference to a memorandum 'sparks' a present recollection so that a witness can testify from independent resensing or revisualization of the event, the time when the memorandum was made is of little moment, because the probative force of the testimony of the witness is his independent present recollection of the event. On the other hand, if, having referred to a memorandum, the present recollection of the witness is not stimulated, the witness must necessarily rely upon his past recollection as recorded in the memorandum; and in such a situation the correctness and trustworthiness of the memorandum are of importance, because the faith reposed in the verity of the memorandum affords the probative force of the testimony of the witness.' And see, Thos. Cusack Co. v. Lubrite Refining Co., Mo.App., 261 S.W. 727. In view of the above stated rule, it is clear that the trial court did not err in permitting plaintiff to refer to the mentioned document.

There is an additional reason why the above described incident was not a reversibly erroneous matter. The same facts as were elicited from plaintiff were clearly established by proper evidence given without objection by Mr. Les L. Carter, plaintiff's employer. As stated in 5A C.J.S. Appeal and Error Sec. 1735, page 1028, 'If the same facts are afterward substantially established by proper evidence of the same or similar effect, the admission of improper evidence is harmless; and this is especially so where the later evidence is admissed without...