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I. Scope of Note. This note is confined to a consideration of the admissibility of hooks, reports and memoranda made or authorized by the party seeking to introduce the same during the regular course of business. In other words, it deals more particularly with regular entries made in the course of business other than books of account. Questions relating to the admissibility of letters, telegrams, photographs, mortality tables, historical and scientific books, as evidence, will not be considered.
II. General Rule as to the Admissibility of Entries Made in the
Regular Course of Business. The admissibility of books, reports and the like in evidence on behalf of the person on whose behalf they were made is very largely governed by the rules in regard to the admissibility of books of account and the use of memoranda made at the time of the transaetion.
The admission of books of accounts of a party to prove items of work done or goods delivered, when supported by the oath of the party, has been sanctioned, at least originally; as an exception to the general rule, that formerly existed, prohibiting a party from being a witness in his own case, and from the supposed necessity, in order to prevent a failure of justice, of allowing the only available proof of daily transactions of such a small importance that it could not be expected that there would be witnesses to their occurrence: Pratt v. White, 132 Mass. 477.
The rule in regard to the admissibility of memorandums as evidence was stated by the court in Manchester Assur. Co. v. Oregon R. Co., 46 Or. 162, 114 Am. St. Rep. 863, 79 Pac. 60, 69 L. R. A. 475, as fol. lows: "The theory of the law deducible from the books seems to be that a memorandum is but secondary evidence of the facts of which it speaks, the primary evidence being the knowledge of the witness, if he is able to testify truly as to the facts mentioned, or if he is unable to testify from present recollection after having had his mind quickened by the memorandum-that is to say, of his own knowledge, independent of the memorandum; and it is only when this primary proof is not available that resort may be had to the secondary, so that it becomes necessary to show that the witness cannot speak from knowledge of the facts, or from present recollection thereof, after having consulted the memorandum, before it can become of evidentiary value, either as auxiliary, or an aid to the mind in speaking from it: Bradner on Evidence, 2d ed., 472; Abbott on Trial Evidence, 2d ed., 395, 396; Friendly v. Lee, 20 Or. 202, 25 Pac. 396; Howard v. McDonough, 77 N. Y. 592; Peck v. Valentine, 94 N. Y. 569; National Ulster Co. Bank v. Madden, 114 N. Y. 280, 11 Am. St. Rep. 633, 21 N. E. 408; Krom v. Levy, 1 Hun (N. Y), 171; People v. McLaughlin, 150 N. Y. 365, 44 N. E. 1017; Acklen's Exr. v. Hickman, 63 Ala. 494, 35 Am. St. Rep. 54; Hayden v. Haxie, 27 Ill. App. 533. But to enable a witness to testify from the memorandum, under the conditions stated, it must be the original, unless it be lost, or its absence excused: Davis v. Field, 56 Vt. 426; Caldwell v. Bowen, 80 Mich. 382, 45 N. W. 185; Harrison v. Middleton, 11 Gratt. 527.
"If the original be produced, and it appears that it was made in the usual course of business, it may be introduced and received in evidence, along with the testimony of the witness who made it, and is enabled to say that the facts stated in it were correctly minuted at the time; but this is because he has forgotten, so that he is unable to speak concerning such facts without the aid of the memorandum: Abbott on Trial Evidence, 2d ed., 395; National Ulster Co. Bank v. Madden, 114 N. Y. 280, 11 Am. St. Rep. 633, 21 N. E. 408; Peck v. Valentine, 94 N. Y. 569; Krom v. Levy, 1 Ilun (N. Y.), 171; Merrill v. Ithaca & O. R. Co., 16 Wend. 586, 30 Am. Dec. 130; Moots v. State, 21 Ohio St. 653; Burton v. Plummer, 2 Ad. & E. 341; Doe v. Perkins, 3 Durn. & E. 749: Tanner v. Taylor, referred to by Mr. Justice Buller in the latter case.
"Memoranda made in the usual course of business, when made up from reports of subordinates, are admissible, under the rule, when accompanied by the testimony of such subordinates that they represent truly what had transpired, combined with that of the person minuting the transactions that they were also truly noted; but not so with merely private memoranda, not made in pursuance of any duty owed by the person making them: Mayor v. Second Ave. R. Co., 102 N. Y. 572, 55 Am. Rep. 839, 7 N. E. 905. To the same purpose, see Harwood v. Mulry, 8 Gray, 250; Miller v. Shay, 145 Mass. 162, 1 Am. St. Rep. 449, 16 N. E. 468.”
One of the requirements for entries made in a book to be admissible in evidence is that they were made in the regular course of business: Dow v. Sawyer, 29 Me. 117; Watts v. Howard, 7 Met. 478; State v. Phair, 48 Vt. 366; Nicholls v. Webb, 8 Wheat. 326, 5 L. ed. 628. The entry of a single sale or transaction in a book does not constitute it a book of original entries: Ryan v. Dunphy, 4 Mont. 356, 47 Am. Rep. 355, 6 Pac. 324. Hence, where a book contains but one entry made by the party producing it, and that entry was made solely as a memorandum of the transaction, the book is not admissible in evidence: Metzger v. Burnett, 5 Kan. App. 374, 48 Pac. 599. Entries contained in a book but are not generally admissible in evidence where they were not made by a person having personal knowledge of the transaction entered therein: Carlton v. Carey, 83 Minn. 232, 86 N. W. 85. A memorandum is not admissible as independent evidence to prove any fact to which the party making it could testify from his recollection. It can, however, be used to refresh the memory of the witness, and if, upon examining it, he is unable to remember what it contains, but knows that the facts contained in the memoranda are true, he may so testify, and then read the memoranda to the jury: Phoenix Ins. Co. v. Public Parks Amusement Co., 63 Ark. 187, 37 S. W. 959.
"How far papers, not evidence per se, but proved to have been true statements of fact at the time they were made, are admissible in connection with the testimony of a witness who made them, has been a frequent subject of inquiry, and it has many times been decided that they are to be received. And why should they not be! Quan. tities and values are retained in the memory with great difficulty. If, at a time when an entry of aggregate quantities or values was made, the witness knew it was correct, it is hard to see why it is not at least as reliable as the memory of the witness": Republic Fire Ins. Co. v. Weide, 14 Wall. 375, 20 L. ed. 894.
The court in Curtis v. Bradley, 65 Conn. 99, 48 Am. St. Rep. 177, 31 Atl. 591, 28 L. R. A. 143, spoke very strongly in favor of the admissibility of memoranda which could, under the well-established rules of evidence, be read to the jury by a witness whose memory was not refreshed by it. The court said: “All courts concur in holding that the witness may read the statement of such paper to the jury, and that the jury may draw the conclusion that the statement so read to them is a true statement of the facts; but some courts hold that the paper is not evidence. It seems to be pressing the use of a legal fiction too far for a court to permit the statement made by such paper to be read as evidence, while holding that the law forbids the admission as evidence of the paper which is the original and only proof of the statement admitted. In other words, it would seem as if in admitting the paper to be so read the court of necessity admitted the paper as evidence, and therefore, by the concurrent authority of all courts, the paper is itself admissible. But waiving the question whether, in admitting such paper to be read, the courts have gone so far as to make the denial of its admissibility no longer tenable, we will deal with the matter as if wholly undecided. Is the paper itself admissible as evidence? Its admissibility, in the first instance, depends on its relevancy. .... The competency of this paper is clearly established by the testimony, and it would seem to follow of necessity that it should be admitted on the same ground that any relevant and material documentary evidence, proved to be competent, is admitted. The doubt has arisen from the complication of the admissibility of such paper with the right of a witness to refresh his memory. The right of a witness to refresh his memory is a settled and necessary rule of evidence. The application of that rule is often difficult, involving delicate distinctions. We are not called upon now to draw the line which limits the right of a witness to the use of such aids as, under the subtle laws of association, serve to refresh his memory. All courts recognize that right, and rightly hold that the thing used to refresh the memory is not by reason of such use itself admissible as evidence. When in the application of the rule a document like the one in question was presented to the witness and absolutely failed to refresh his memory, its exclusion as
of refreshing his memory became im. perative; but the evidence of the document was so clearly essential to a fair and just trial, that its use in some form seemed also imperative. Instead of treating the paper as itself competent docu: mentary evidence, resort was had to a palpable fiction; the paper is read by the witness, and the knowledge the witness once had of the facts stated by the paper is imputed to him as still existing, and the statement of the paper is received as the testimony of the
witness, and the paper itself, the only witness capable of making the statement, is excluded. The use of such a fiction in the administration of justice can rarely, if ever, be justified. It is certainly uncalled for in this instance. The principles of law invoked to justify the fiction are amply sufficient to support, indeed to demand, the admission of the document as evidence. There is no occasion to sacrifice truth in order to secure justice. As regards its admissibility as evidence, there is no substantial difference between this paper and any other tangible object capable of making a truthful and relevant statement."
The book, when competent, stards in the place of the witness who made the entry. Hence the book must contain the registration of some fact made in the course of business or duty by one who would at the time have been a competent witness to the fact registered therein. And the fact must, of course, be relevant to the issues on trial: Avery's Exr. v. Avery, 49 Ala. 193.
In Chicago Lumbering Co. v. Hewitt, 64 Fed. 314, 12 C. C. A. 129, the court refused to admit a book showing the tally of logs scaled during a certain season on the ground that it was not a book of accounts. The data upon which the entries were made was obtained from tally reports made by a log scaler, and the person who made the entries had no knowledge of their correctness. The book entries showed only the aggregate lumber contents of the logs which were ascertained from the tally boards showing the contents of each log. The court said: “The mere fact that a temporary entry is made on a slate, or by chalk scores, or as in this case, by pencil memoranda on tally boards, for the purpose of convenience and aiding the memory until a book of entry could be made at the close of the day, would not operate to deprive such subsequent entry of the character of an original entry, nor the book in which it was made of its character as an original book of accounts: Whitney v. Sawyer, 11 Gray, 242; Faxon v. Hollis, 13 Mass. 427; Smith v. Sanford, 12 Pick. 139, 22 Am. Dec. 415. The original rough memoranda are not books of original entry, and need no be produced; and the fact that such memoranda had been made to aid the memory until a formal entry could be made will not make the book into which they were at once transcribed secondary evidence: Wharton on Evidence, sec. 682. The difficulty in this case lies in the fact that the book entries were made from the tally boards memoranda by a person other than the one who made the tally-board entries, and who knew nothing of the correctness of the data transcribed. That McFadden was able to testify that his additions were correct, and that he had correctly entered the sums thus ascertained, is not enough. The fact which it was important to the plaintiffs to prove was the lumber contents of the logs placed in the river above the defendant company's boom from the camp of which McFadden was foreman. What McFadden knew was that Foley, whose duty it was to scale the logs put in the river each day from that camp, had by his tally-board memoranda reported a given number of logs containing, when aggregated, a given number of feet, as having been
set afloat on a particular day. If McFadden had made his entries from oral statements made by persons having knowledge of the number and contents of logs floated each day, such entries would not have been competent without calling the persons who knew the facts, and on whose authority the entries had been made. Is there any distinction in the evidential value of entries made on the oral statement of clerks or servants who knew the facts and memoranda made for convenience in aiding the memory of such clerks or servants We can see none. Mr. McFadden's book could not refresh his memory as to the facts sought to be established by his entries, for the obvious reason that he had no personal knowledge of the truth of the facts recorded by him. .... But it is argued that Foley could not be found, and that, therefore, the memoranda made upon his knowledge were admissible. This contention is sought to be supported by the rule stated by Mr. Justice Field and heretofore quoted. The observation of Mr. Justice Story in Nicholls v. Webb, 8 Wheat. 326, 5 L. ed. 628, is also thought to justify such an tension of the rule of evidence. That observation quite meets our approval. It was this: 'The rules of evidence are of great importance, and cannot be departed from, without endangering private as well as public rights. Courts of law are, therefore, extremely cautious in the introduction of any new doctrines of evidence which trench upon old and established principles. Still, however, it is obvious that, as the rules of evidence are founded upon general interest and convenience, they must, from time to time, admit of modifications, to adapt them to the actual condition and business of men, or they would work manifest injustice.' When the principle so well stated by Judge Story is invoked to induce an extension of the rules of evidence relating to books of accounts, it should be borne in mind that, since the parties to a suit are no longer incompetent as witnesses, books of account are deprived of much of the peculiar significance which formerly attached to them. It was always competent for a litigant to call his clerk or other stranger, who had personal knowledge of the correctness of the book entry, to testify, using the book, if the witness had kept it, as a means of refreshing his memory. So in this case Foley was a competent witness to the correctness of the memoranda shown by the tally boards. Did the books kept by McFadden become competent independent evidence because Foley could not be found and produced as a witness There is nothing, when rightly understood, in either Chaffee v. United States, 18 Wall, 516, 21 L. ed. 908, or Nicholls v. Webb, 8 Wheat. 326, 15 L. ed. 628, which will justify such a conclusion."
It is obvious that where a witness never had any actual personal knowledge of a transaction, he has no memory to be refreshed, and hence that entries made by some one other than himself are not admissible to refresh his memory: Alabama etc. Ry. Co. v. Coleman, 78 Miss. 182, 28 South, 828.
In Imhoff v. Richards, 48 Neb. 590, 67 N. W. 483, the court said: "A memorandum may be received as independent evidence of the