Douglas v. Leighton

The nature of this controversy will be seen upon an examination of the opinion rendered on a former appeal. 53 *83Minn. 176, (54 N. W. 1053.) At the second trial it was shown by one of plaintiff’s witnesses (his foreman) that, as the logs were unloaded at the bank or landing, one of the men kept an account of the number on a tally board, and that, after each day’s hauling was completed, the foreman copied the number appearing-on the board into a book. These numbers were footed up so that each month’s work appeared by itself, and at the close of the season, about April 1, 1886, the book was delivered by the foreman to the plaintiff. The latter soon after copied these footings (and nothing else, as we understand it, although the testimony is not very clear) onto a page in his cashbook. In 1890 the original book used by the foreman when he transcribed from the tally board was destroyed by fire. This being shown upon the trial, the plaintiff, who did not claim to have any personal knowledge of the number of logs as counted and kept on the tally board, or of the number actually unloaded at the bank, was allowed to use the page from his cashbook, before mentioned, to refresh his memory, and then to state'what the footings were in tire original book, and also the number of logs which had been delivered.

Briefly stated, the plaintiff was allowed to refresh his memory for the purpose of testifying by the examination of figures which he had transcribed from a book into which his foreman, who had no personal knowledge of the matter, had copied what appeared upon a tally board kept by still another of plaintiff’s employés. We quite agree with counsel for respondent that much discretion must rest with the trial judge when permitting a memorandum to be used for the purpose of refreshing the memory of a witness, but the ruling of the trial court now before us cannot be sustained on that ground.

The rules under which a witness may be permitted to refresh his memory by the use of writings are fully stated in 1 Greenl. Ev. §§ 436, 437. According to the authorities, it does not seem to be necessary that the writing used should have been made by the witness himself, nor that it should be an original writing, provided, after inspecting it, he can speak of the facts from his own recollection. Here the witness had no knowledge, and consequently no recollection, of the number of logs unloaded at the landing, except as he had been told or informed by his foreman, *84who also was unable to speak of his own knowledge or recollection. The testimony of the witness, so far as it was founded upon the copy made by him, or so far as it would have had a foundation if he had used the book kept by his foreman, was but hearsay, and a witness can no more be permitted to give evidence of his inference from what a third person has written than from what a third person has said. See Eder v. Reilly, 48 Minn. 437, (51 N. W. 226.)

We think the admission of this testimony was prejudicial to the defendant, and that a new trial must be had.

Order reversed.

(Opinion published 58 N. W. 827.)