Opinion
Civ. No. 618.
September 15, 1909.
APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial. Jas. M. Troutt, Judge.
The facts are stated in the opinion of the court.
Ames Manning, for Appellants.
Arnold W. Liechti, for Respondent.
This action was brought to recover a balance claimed to be due for the use of teams and teamsters furnished by plaintiff to defendants at their request. Plaintiff recovered judgment, and this appeal is from the judgment and the order denying defendants' motion for a new trial.
There is only one question discussed in the briefs, and that is as to the ruling of the court in admitting, over the objection of defendants, a certain book called a work-book, containing the names of certain teamsters, the dates and number of loads hauled, the place from which and to where the loads were taken and the name of the persons for whom the hauling was done — the account in this case being a charge against defendants.
Plaintiff called as a witness one Milestone, who testified that he was in the employ of the plaintiff as bookkeeper during the time the teams were claimed to have been furnished, and that he kept the accounts and a full set of books — a work-book, ledger, cash-book, journal and check-book; that the work-book shown him contained entries of the work performed entered from a memorandum paper into the work-book, and that the work-book was correctly kept so far as he knew; that it was his custom to leave the barn between 4 and 5 o'clock of each day and go from the barn out to the camp at Fourteenth street and catch the different teamsters as they came in, and get an oral statement from each teamster as to what work had been done by him during the day; that he procured such oral statements from the teamsters and put them down on a memorandum paper, and took back such memoranda to his office and the same evening or the following morning he would enter in the work-book "the name of the teamster, the number of loads from where and where to."
The witness clearly showed that the facts were obtained first by the oral statements of the various teamsters, then transferred by him to a memorandum or temporary paper and then afterward entered by him into the work-book, which was the book offered and received in evidence. The book was objected to upon the ground that it was irrelevant, immaterial and incompetent and hearsay, and that no proper foundation had been laid for its introduction. The court overruled the objection and allowed the book in evidence. After the book was so admitted the attorneys for defendant moved to strike out the testimony contained in the pages which were read as to the account against defendants, upon the ground that the book was hearsay and the court denied the motion. No teamster was called, nor was any attempt made to account for the absence of such teamsters as witnesses.
The first entry or memorandum made by the witness on paper was but the oral statement of the teamsters. Such teamsters were not under oath, and were not brought into court so that their statements could be tested by cross-examination.
It was long ago laid down by the courts of England that, on account of the necessity of the case and to prevent a failure of justice, the books of original entries, or the shop-books as they were called, in certain cases might be introduced in evidence. The entry must have been made in the ordinary course of business and by a person since deceased or beyond the jurisdiction of the court. It was necessary to prove that the merchant or tradesman whose books were offered, kept correct books of account, and that the entry was made in the usual course of business by one who had knowledge of the facts. These entries were admitted by the courts as exceptions to the general rule excluding hearsay evidence, in order to prevent a total failure of justice. It was said in the early case of Lefebure v. Worden, 2 Ves. 38: "So far the courts of justice have gone (and that was going a good way, and perhaps broke in upon the original strict rules of evidence) that where there was such evidence (entries) by a servant known in transacting the business, as in a goldsmith's shop by a cashier or bookkeeper, such entry, supported on the oath of that servant that he used to make entries from time to time and that he made them truly, has been read. Further, where that servant, agent or bookkeeper has been dead, if there is proof that he was the servant or agent usually employed in such business, was intrusted to make such entries by his master (and) that it was the course of trade — on proof that he was dead and that it was his handwriting, such entry has been read (which was Sir Biby Lake's case). And that was going a great way; for there it might be objected that such entry was the same as if made by the master himself; yet by reason of the difficulty of making proof in cases of this kind the Court has gone so far."
Applying the principles and rules laid down by the able judges of the higher courts of England and of this country, we do not think the evidence was admissible, but that it was purely hearsay.
The fact, that it became necessary for plaintiff to prove, was that he furnished certain teams and certain drivers to defendants at their request, and the amount and nature of such services, or a contract fixing the amount which was to be paid. Plaintiff does not appear to have kept any timekeeper or person who knew of his own knowledge the number of teams and teamsters furnished, and the number of days that they were employed by defendants. The fact which plaintiff did prove was certain oral statements by the various teamsters. The essential witnesses — the parties who did the work and knew the facts — were not called; the witness who was called did not testify to the truth of the facts, but to its having been asserted on the extrajudicial occasions on which the various oral statements were given. The evidence of the teamsters was conveyed by the witness, who told in court what other parties had told him. The exclusion of hearsay evidence is based upon the principle that every litigant who comes into a court of justice has a clear right to have the witness against him brought into court face to face, so that he may be tested by cross-examination as to every fact concerning which he has given evidence. It has been said that a person who relates a hearsay is not obliged to enter into any particulars, to answer any questions, to solve any difficulties, to reconcile any contradictions, to explain any obscurities, to remove any ambiguities. He entrenches himself in his simple assertion that he was told so and so, and leaves the burden upon his dead or absent author. In this case the witness testified only to having made an entry of what was told him by the teamsters. He does not even give a single name of any one of the persons whose statement he received, nor does he give a single segregated fact as being told him by any one person. He only in effect says: "I was told by the various teamsters the various statements I entered in the work-book."
We have examined the various cases cited by counsel for respondent, but we do not find any case which supports the rule as broadly as contended for here. On the contrary, in our opinion, the great weight of authority, both in England and in this country, supports the rule as we have given it. It is said by Greenleaf (vol. 1, 16th ed., sec. 120A): "The entries must have been in the ordinary course of business . . . fairly contemporaneous with the events recorded. . . must be produced in its original form. . . and of a fact within the personal knowledge of the declarant."
In Underhill on Evidence, section 60, it is said: "Upon the question whether entries made in the books of a party to the suit are admissible as evidence in his own favor, under the proposition that such entries constitute a part of the res gestae, the cases are at considerable variance. If the entry was made by an employee of the party, having personal knowledge of the fact, in the usual course of his employment, in books which were kept for such entries, and if it was made at or near the date of the transaction and is illustrative of it, then there can be no objection to its admission upon the principles already laid down. It is really hearsay evidence, however, because the bookkeeper or other person making the entry was not on oath or cannot be produced, or, being produced, has wholly forgotten the circumstances attending the transaction."
In a very exhaustive note to Post v. Kenerson, 72 Vt. 341, 52 L. R. A. 582-610, the question is discussed, and many authorities cited. On page 595 the rule is thus summed up by the author of the note: "As a general rule, although there are cases holding otherwise, it is essential to the admissibility of entries made by a living witness that he should be able to state that at or about the time the entries were made he knew their contents, and knew them to be true, so that the entries and the testimony of the witness concurrently shall be equivalent to a present affirmation of the truth of their contents."
In Swan v. Thurman, 112 Mich. 416, [70 N.W. 1023], it appeared that the only testimony to support the books was that of the bookkeeper, who merely transcribed the entries from slips handed to him by salesmen and had no personal knowledge of the sale and delivery of the articles charged. The court said: "It is sometimes proper to admit books of account as evidence of the acts of those who keep them where the entries are contemporaneous with the acts recorded. But where the book is, as in this case, the record of the acts of others not within the personal knowledge of the bookkeeper, but made up from the statements of others, such book is hearsay. From the earliest cases the admission of entries by third persons has proceeded upon the theory that such persons had personal knowledge of the facts stated in the entry."
In the late case of Chicago Lumbering Co. v. Hewitt, 64 Fed. 314, [12 C. C. A. 129], the circuit court of the United States held that a book in which one person set down the total amount of logs scaled from memoranda furnished him by another person, who did the work, is not admissible to prove the amount of logs scaled, unless supplemented by the testimony of the person furnishing the original data. The court said: "That McFadden was able to testify that his additions were correct and that he had correctly entered the amounts 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 know the facts and memoranda made for convenience in aiding the memory of such clerks or servants? We can see none."
See further the following cases: Dodge v. Morrow, 14 Ind. App. 534, [41 N.E. 967, 43 N.E. 153]; Bouldin v. Atl. Rice Mills Co. (Tex. Civ. App.), 86 S.W. 795; Chisholm v. Brannan Machine Co., 160 Ill. 101, [43 N.E. 796]; Chaffee v. United States, 95 U.S. 516, [21 L. ed. 912]; Gould v. Hartley, 187 Mass. 561, [ 73 N.E. 656]; Van Name v. Barber, 115 App. Div. 593, [100 N.Y. Supp. 987].
The book, which was afterward offered by plaintiff, called the ledger was inadmissible for the reasons above stated, and further for the reason that it was not a book of original entries. It does not in any way appear where the data were obtained in the charges of "April 2, Bill J. 4 $711.70" and of "May 1, Bill J. 4, $747.40," except by the reference to the journal.
The claim of respondent that, if the admission of said books was error, such error was harmless, upon the ground as contended that sufficient other evidence was offered to support plaintiff's claim, cannot be upheld. It is true there was other evidence that plaintiff furnished to defendant teams and teamsters, and that they did certain work for defendants; but the amount of such labor and the number of days the teams were in the employ of defendants can only be ascertained from the entries in the work-book. Not only is this true, but the defendant offered and read in evidence without objection a time-book kept by one Heisler, their timekeeper, who had charge of the business of keeping accounts of the teams furnished to defendants by plaintiff. This book was in direct conflict with the work-book offered in evidence by plaintiff as to many items, and made the amount of the plaintiff's claim much less than the amount for which judgment was given. We are aware that cases arise, and will continue to arise, in which much difficulty is found in proving the many items of original entries taken from clerks, agents or employees, particularly where there is a large number of such clerks, agents or employees. But the rule we have adopted appears to us to be the correct one on principle. If the rule contended for by respondent in this case were followed it would lay the foundation for gross frauds. Books might be intentionally filled with overcharges based upon hearsay. The defendant would have no opportunity to investigate the truth of the alleged hearsay evidence. It is better that the rule be certain and not extended so as to include hearsay evidence, than that it be overturned to avoid the hardships of some particular case.
It follows that the judgment and order must be reversed, and it is so ordered.
Hall, J., and Kerrigan, J., concurred.