Spring Garden Mut. Ins. Co. v. Evans

• Decision Date: 24 February 1860
• Citation: 15 Md. 54
• Parties: THE SPRING GARDEN MUTUAL INSURANCE COMPANY v. RANDALL EVANS, use of J. P. RILEY.
• Court: Maryland Court of Appeals

15 Md. 54

THE SPRING GARDEN MUTUAL INSURANCE COMPANY v. RANDALL EVANS, use of J. P. RILEY.

Court of Appeals of Maryland.

February 24, 1860

An affidavit was recognised by the witness as in his handwriting, but it was made at the recommendation of one of the parties, and not until nearly five months after the transactions of which it speaks occurred. HELD: That the witness could not be permitted to testify to his belief of the correctness of the facts set forth in it.

To allow a witness to refresh his memory by looking at a memorandum, it must have been made at the moment, or recently after the fact, but if made weeks or months thereafter, he will not be permitted to do so, nor if made at the recommendation of one of the parties.

APPEAL from the Superior Court of Baltimore city.

Covenant brought on the 8th of September 1849, by the appellee against the appellant upon a fire insurance policy issued by the appellant to Evans upon a stock of goods and shop fixtures in a store in Winchester, Virginia. Plea non infregit.

This is the second appeal in the case. The former appeal is reported in 9 Md. Rep., 1, she loss by fire occurred on the 20th of March 1849, and on the next day Evans assigned the policy to Riley. The policy contains the usual clause relating to preliminary proof. The plaintiff alleged that such proof was furnished, and served notice upon the defendant to produce the papers relating thereto, which had been left with the company in Philadelphia shortly after the fire. At the trial under the procedendo, several exceptions were taken, parts of which only need be stated.

1 st Exception. --For the purpose of introducing secondary evidence of the papers referred to in the above notice the plaintiff called Geo. W. Hammond, who proved that on the second day after the fire, he was in Winchester, and being about to proeeed to Baltimore, he received a package of papers from Riley, who requested him to deliver them to the defendant's agent, in Baltimore, who issued the policy. Witness did so, but the Baltimore agent declined to take any action in the matter and requested witness to take them to the defendant in Philadelphia. Witness then proceeded to Philadelphia and handed the papers to a person to whom he was introduced as the president of the company at its office there, and by whom he was told the matter should be laid before the board of directors and the result communicated to Riley. Witness said he did not read any of the papers and does not recollect any of their contents, but they were in the handwriting of Mr. Carson of Winchester, who was an agent for an insurance company. The plaintiff then for the purpose of refreshing the memory of this witness, offered to place in his hands, to be read by him, the following paper, dated Winchester, written signed and sworn to, before a justice of the peace, by the witness, on the 18th of August 1849, the day of its date:

" At the request of James P. Riley, I make the following statement, to the best of my knowledge, recollection and belief, of the facts and occurrences spoken of. On the _____ of March last, I went to Baltimore from this place, and the property of Randall Evans having been destroyed by fire two days before, I took with me at the request of the said J. P Riley, certain papers connected with the assurance of the said Randall Evans in the Spring Garden Company of Philadelphia, to lay before the Baltimore agent of said company. These papers consisted of the policy of insurance the assignment of said policy to the said James P. Riley, the affidavit before a magistrate of said Evans, to the effect that his loss by said fire exceeded the sum of $1500, the amount insured, and certificate of the acting magistrate to the good character of said Evans, and his opinion that said loss did so exceed said amount, and also a letter from said Riley to Mr. Lovegrove, the said agent. On the day after my arrival in Baltimore, I called at the office of said agent and was informed by his clerk that he was absent and would not return till late. I called the following day, saw Mr. Lovegrove, the agent, presented the letter from Mr. Riley and laid before him the aforesaid papers. He carefully inspected them, said they were in order, but remarked that as the Baltimore agency was (or would soon be) withdrawn, he would prefer, as I was going to Philadelphia, my laying the papers before the mother institution there, to which I assented. His clerk then by his directions, sealed all the papers (together with the letter from said Riley to said agent) in an envelope, directed to the president of the institution in Philadelphia. Shortly after my arrival in Philadelphia, I presented this package at the office of the Spring Garden Company, to a person I suppose to be a clerk, who opened it and requested me to wait a short time, when the president (I think) would be in. The person referred to soon arrived with whom I had some conversation respecting the fire, & c. He examined the papers, said they were in form, and named a day when their board would meet and when the matter would be considered, and when the said James P. Riley, the assignee of said Randall Evans, would be informed of the result."

The defendant objected to the placing of this paper in the hands of the witness, to be read by him, but the court (LEE, J.) overruled this objection and permitted the same to be placed in the hands of the witness, and to be read by him, for the purpose of refreshing his memory. To this ruling the defendant excepted.

2 nd. Exception. The witness having then read and identified the paper, and the body of it, as in his handwriting, and having stated that he now recollects having made this affidavit when the facts of the transaction were fresh and recent, the plaintiff proposed to ask him whether or not upon reading the same he can state from recollection the contents of the papers left by him in Philadelphia? The defendant objected to this question, but the court allowed it to be put, and to this ruling the defendant excepted.

3 rd. Exception. The witness having answered the question mentioned in the preceding exception, by saying that he had no recollection of the contents of said papers, the plaintiff then proposed to ask him this question: On reading the affidavit, can you, or can you not, say, that what you then stated therein, you then knew to be true? The defendant objected to this question, but the court allowed it to be put, and to this ruling the defendant excepted.

4 th. Exception. The witness then, in reply to the question mentioned in the preceding exception, said that what he stated in said affidavit he then knew to be true, and now believes to be true. To this answer the defendant objected, but the court permitted it to go the jury as evidence, and to this ruling the defendant excepted.

5 th. Exception. The plaintiff then offered to read to the jury in evidence said affidavit. To the reading thereof, as evidence, the defendant objected, but the court allowed the same to be so read, and to this ruling the defendant excepted.

7 th. Exception. After the evidence had been closed, several prayers were offered by the defendant, only one of which, the 3rd, need be stated, viz:

That there is no evidence in this cause that such preliminary proof of loss as is required by the 9th condition of the policy was furnished by the defendant before the institution of this suit.

To the rejection of this, with other prayers, the defendant excepted. The verdict and judgment were in favor of the plaintiff, and the defendant appealed.

The cause was argued before LE GRAND, C. J., ECCLESTON and TUCK, J.

Chas. H. Pitts for the appellant.

The several exceptions in relation to the testimony of the witness, Hammond, show that in his examination-in-chief, when first called to the stand, he stated that he did not read any of the papers and did not recollect any of their contents. For the purpose of refreshing his memory, the affidavit was placed in his hands and he was allowed to read it. He identified the paper as in his handwriting, and then said he now recollects having made such an affidavit when the facts of the transaction were fresh and recent. He was then asked whether, on reading this affidavit, he can state from recollection the contents of the papers? To this he replied that he had no recollection of the contents of the papers. He was then asked, " on reading the affidavit, can you, or can you not, say, that what you then stated therein you then knew to be true?" To this he replied, that what he stated in the affidavit he then knew to be true, and now...