Woodward v. City Council of Augusta
| Decision Date | 10 June 1968 |
| Docket Number | No. 43659,No. 3,43659,3 |
| Citation | 162 S.E.2d 304,117 Ga.App. 857 |
| Parties | M. A. WOODWARD et al., Executors v. CITY COUNCIL OF AUGUSTA |
| Court | Georgia Court of Appeals |
Franklin H. Pierce, Augusta, for appellants.
Henry J. Heffernan, Augusta, for appellee.
Syllabus Opinion by the Court.
A witness may refresh and assist his memory by the use of any written instrument or memorandum, provided he finally shall speak from his recollection thus refreshed, or shall be willing to swear positively from the paper.' Code § 38-1707. This definitely allows oral testimony by a witness which the witness, absent the memorandum, would not be able otherwise to recollect. Does it also form a basis for allowing the written memorandum on which the oral testimony is based to be introduced in evidence? Excluding such memoranda as are admissible by reason of coming under the Business Records Act or because they are part of the res gestae (Davis v. State, 91 Ga. 167(1), 17 S.E. 292), it is generally held that the memorandum has no present evidentiary value, since 'it is not the memorandum that is the evidence, but the recollection of the witness.' Stansall v. Columbian Nat. Life Ins. Co., 32 Ga.App. 87, 91, 122 S.E. 733. An exception is noted where the opposite side wishes to introduce the memorandum in order to weaken the effect of the testimony. In Ingram v. Hilton & Dodge Lumber Co., 108 Ga. 194(3), 33 S.E. 961 a memorandum of a conversation between the witness and another was held inadmissible for any purpose. In Southern Ry. Co. v. Cowan, 52 Ga.App. 360, 368(6), 183 S.E. 331 a memorandum not authenticated under the shopbook rule was held inadmissible. See also Schall v. Eisner, 58 Ga. 190, 191(2); Draffin v. Massey, 93 Ga.App. 392(2), 92 S.E.2d 38; Mallette v. Mallette, 220 Ga. 401, 139 S.E.2d 322.
In the present case the witness estimated the value of the property condemned based on reconstruction cost new. He had prepared a cost breakdown which he gave verbatim and without objection, apparently referring to the document for that purpose. The document was then offered in evidence and excluded over objection. The ruling was without error. The best evidence of the expert witness' opinion of the cost of reconstruction was his own testimony to that effect, not the worksheet which he had prepared in order to assist him in presenting the testimony.
Judgment affirmed.
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...be admitted in evidence (Nationwide, etc., Ins. Co. v. Rhee, 160 Ga.App. 468, 472(10), 287 S.E.2d 257; compare Woodward v. City Council, etc., 117 Ga.App. 857, 162 S.E.2d 304), when a foundation is established for the use of the documents for purposes of past recollection recorded, both the......
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...value, since 'it is not the memorandum that is the evidence, but the recollection of the witness.' [Cit.]" Woodward v. City Council of Augusta, 117 Ga.App. 857, 162 S.E.2d 304; OCGA § 24-9-69 (Code Ann. § A well recognized exception to the foregoing rule is the admission into evidence of re......
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Nationwide Mut. Fire Ins. Co. v. Rhee
...to use the notes to refresh his recollection, the notes themselves were not admissible. See generally Woodward v. City Council of Augusta, 117 Ga.App. 857, 162 S.E.2d 304 (1968). Judgments DEEN, P. J., and CARLEY, J., concur. ...
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