Sabin v. Michaelsen , 72 Pa. Super. 226 ( 1919 )

Opinion by

Henderson, J.,

This action and thirteen others between the same parties were tried together and involved the right of the' plaintiff to maintain the liens filed for work done and material furnished in the equipment of certain dwelling houses with heaters. The defendants attempted to show that the liens were invalid because more than six months had elapsed from the time the last work was done and the last material furnished. To establish this fact, a witness was called by whom it was proposed to show that he was familiar with the progress of the work on the buildings as an agent of the Land Title & Trust Company ; that his duty was to see that the work was being done in accordance with the plans and specifications, and to certify to certain amounts of money to the various contractors each week; that he inspected the work on the buildings once every week; that he made an examination of the houses with reference to the time when the last material was furnished and the work was done, and made memoranda of the fact, as a part of his record of inspection, which record showed that the work was completed at a certain time. The original memoranda made on his records by the witness has been lost and could not be produced at the trial, but while they were in his possession, he had made on other papers, from the originals, a record of the same dates as to the time of the completion of the wouk. The witness was unable to give these dates from memory, whereupon it was proposed to prove the fact, after the witness had revived his recollection by reference to the notations of time which he had made on the papers referred to from his original memoranda. On objection, the court refused to admit Ms evidence, and the question for consideration is whether the witness might use the notes, made by Mm, to refresh his recollection as to the date when he observed that plaintiff’s work on the houses was completed. The reason for the action of the court was that the memoranda proposed to be used by the witness were not those originally made, and that copies of the originals were not admissible to revive the recollection of the witness. It was not proposed to offer the memoranda in evidence, for the purpose of establishing the fact; the purpose was to prove the fact by the witness after his memory had been refreshed by reference to the documents made by him. The attempt was not, therefore, to introduce the record of a prior recollection, but to produce a present recollection by stimulating the memory through association with a transaction in which the witness was an actor. As the original memoranda were made by the witness from knowledge then possessed by him, as he claimed, and the copies taken from these originals were also made by him, and as he stated, enabled him to recall the date on which the last material was furnished, or labor was done, such memoranda, whether originals or copies, were admissible to enable him to recall the facts there recorded, and which were involved in the litigation. The authenticity of the writings being established, and the necessity of their use to refresh the memory of the witness having been shown, the foundation was laid for a reference to them by the witness to revive his recollection of that with which he was familiar when the memoranda were made. If the effort be to prove the record of a prior recollection, it is important that the record shall have been made when the memory was fresh and the events so recent as to assure probable accuracy, but where the object is merely to restore to the mind of the witness the recollection of facts of which he once had knowledge, a memorandum made at a later time, or a copy of a former memorandum, may be used if the witness have knowledge of its accuracy. It is not essential that the paper be an original document, nor is it necessary to account for the original, the important matter is that it is calculated to restore the recollection of the witness. In Mead v. White, 6 Sadler 38, a copy of an account which the witness had taken from pocket memoranda which he had carried until they were worn out, was used by the witness to refresh his memory. Of such use of the copy, the Supreme Court says: “It may be conceded that the written memoranda were not admissible as entries made in the course of business in a book of original entries, yet it is well settled that the witness may use a paper containing a list of items to refresh his memory, when he knows the entry to have been correct when he made it.” The question was considered in Gibson v. Campbell, 242 Pa. 551: In that case the plaintiff made a memorandum of work done when he was absent from home, and when he returned he gave the items with the day and date to his daughter who set them down in a book. Some of the pages had been lost from the book, when the ease was tried, but after the contract had expired, the daughter made a copy of the original book which contained the items on the lost pages. The daughter proved the book and the copy which she had made of it. The plaintiff was permitted to refresh his recollection by reference to the book and also by reference to the copy for what was contained in the lost pages. The original copy was made by the daughter under the direction of the plaintiff and he therefore knew it to be correct. Under these circumstances the court said: “It has uniformly been held that it is not error to permit the witness to refer to book entries or memoranda to refresh his recollection.” It was said by Judge Kephart in Commonwealth v. Roth, 71 Pa. Superior Ct. 73, that: “It has long been a rule of evidence that a witness may refresh his memory by an examination of memoranda reasonably contemporaneous with the transaction to which it relates, whether made by the witness or another......He must know of the circumstances of which the memoranda make record on or about the time of their occurrence and that the writing correctly records them. The original record being a true narration of what transpired, a witness may use a copy thereof.” The same doctrine is supported in Edwards v. Gamble, 202 Pa. 30. In that case the memorandum used was made by a stenographer, but was after-wards signed by the witness. The rule is stated in 1 Wigmore on Evidence, Page 852-B and in the Encyclopedia of Evidence, Vol. XI, Page 131, that a copy of a memorandum or other writing may be used to refresh the memory of a witness. Other authorities of like tenor are: Clifford v. Drake, 110 Ill. 135; Caldwell v. Bowen, 80 Mich. 382; Stephan v. Metzger, 95 Mo. App. 609; Murray v. Cunningham, 10 Neb. 167. It is of course necessary that the witness be able to say that the document, to be referred to, correctly states the facts recorded, but Avith such verification it may be referred to to restore the memory of the Witness.

The great weight of authority is against the conclusion of the court below that the memoranda could not be used by the witness because they had been copied from the original documents made by him. If, as the defendants show, papers in the hands of the witness refreshed his memory and enabled him to testify as to the date when the last work was done under the contract, he should have been permitted to use these memoranda to revive his recollection as to the date involved.

The first and second assignments are therefore sustained.

The third and fourth assignments, relating to the protested notes given to the plaintiff, were not pressed, and as the statement of the question involved makes no reference to them, it is unnecessary to discuss that branch of the case.

The judgment is reversed with a venire facias de novo.