Ft. W. D.C. Ry. Co. v. Garlington , 41 Tex. Civ. App. 340 ( 1906 )

Witness Connelly testified by deposition to the condition of appellee's horses when they were transferred from the Fort Worth Denver City Railway to the Texas Pacific Railway at Fort Worth, he being the business foreman of the latter company at its stockyards in Fort Worth. In answer to cross-interrogatories, he stated that he had no recollection of the horses aside from the record made at the time they were handled by him, which record it was a part of his duty to make and he knew to be correct, and, while he stated that he used the record to refresh his memory, he further stated that he could not say that, independent of the record, he could swear to the facts inquired about, but, knowing his record was correct, he was willing to swear to all that he had stated in his answer. The deposition was excluded on the objection that the answers to cross-interrogatories showed that the witness knew nothing except what the record showed, and that the record was the best evidence of what it contained, and to this ruling error is assigned.

The question thus raised has often been considered by courts and text writers, and, while difference of opinion still exists, we think the weight of authority, and of reason as well, sustains the ruling complained of. The true view seems to be that a writing which fails to refresh the memory of a witness, but which he knows to be a correct transcript of a fact known to him when the writing was made, and since forgotten, is thus made an essential part of his testimony, and when the oral testimony of the witness is offered in proof of such fact the opposite party may require the production of the writing, especially in view of the right to cross-examination. For a valuable discussion of the rule and the authorities, see the opinion of Supreme Court of Connecticut in Curtis v. Bradley, 28 L. R. A., 145). See, also, 1 Wigmore on Evidence, secs. 749, 753 and 754, where the question is exceptionally well treated. (See, also, Jones on Evidence, secs. 877-886, and Indirect and Collateral Evidence (Gillett), sec. 186.) The question of the application of the rule where the original writing can not be produced is not presented to us, and is, therefore, not discussed, but is treated in the authorities above cited. (See, also, Missouri, K. T. Ry. v. Dilworth, 67 S.W. Rep., 88, and Sayles v. Bradley Metcalf Co., 49 S.W. Rep., 209, 92 Tex. 406.)

The court did err, however, as between the two defendants, in giving special charge number 1, requested by the Texas Pacific Railway Company, as to which there does not seem to be any controversy.

The judgment will be affirmed in favor of the appellee, Garlington, but, for the error pointed out, will be reversed, and the cause remanded, on the issue between the two railway companies.

Affirmed in part and reversed in part.