Evidence, Testimony at a former trial, Refreshment of recollection. Witness, Refreshing recollection.
Where, at a hearing of a suit in equity before a second master, who had been appointed to succeed a master who, after extended hearings at which the evidence had been taken stenographically and transcribed with accuracy, had died before the hearings were closed, a witness who, after examining the typewritten record of his testimony before the first master as to what took place at a certain conference, has testified that he could not testify as to what took place at the conference "without looking at the book," and that his testimony given at the hearing before the former master was his best recollection of the matter, the master properly may refuse to permit the witness to be asked or to answer a question, "with this record before you and reading where it is necessary, will you tell us what took place at that meeting?" because it appeared that the memory of the witness was not refreshed by reading his prior testimony and that he had no present recollection of the facts which at the former trial he had recollected as the truth.
PIERCE, J.
On a report to this court from the Superior Court the question presented is whether an admittedly correct transcript of the testimony of a witness at a former trial as to what took place at a certain meeting may be read in whole or in part by the same witness and given as his present testimony at a subsequent hearing in the same case, after he has made an examination of the transcript, consisting of five or six typewritten pages, to refresh his recollection, for the purpose of adding certain material facts therein disclosed by his former testimony, of which he has no present recollection.
It is a well established rule of evidence that testimony given at a former trial is not admissible at a subsequent trial in the same cause of action, except to contradict a witness or to refresh his recollection, if the witness who testified is living, is not insane, is within the jurisdiction of the court or if not within the jurisdiction can be induced to come within it or to a place where his deposition may be taken. Ibanez v. Winston, 222 Mass. 129, and cases cited. The witness who testified at the former trial, after he had looked over the pages of the transcript of his testimony in substance testified that that testimony "was his best recollection of what took place," and that he could not recall what took place at the meeting "without looking at the book. . . . The question was then put to him: 'Now, I will ask you, with this record before you and reading where it is necessary, will you tell us what took place at that meeting?' " It thus indisputably appears that the memory of the witness was not refreshed by reading his prior testimony and that he had no present recollection of the facts which at the former trial he recollected as the truth. It is not argued nor suggested that the failure of the witness to recall at the time of his testimony the facts which he recollected at the former trial is attributable to insanity or to any form of mental incapacity. The transcript of the evidence was properly usable to refresh the recollection of the witness, but it could not be used as evidence in confirmation or corroboration of such testimony. Commonwealth v. Ford, 130 Mass. 64, 67. Commonwealth v. Burton, 183 Mass. 461, 471. We think the effect of permitting the witness to supplement his recollection by reading from the transcript of his evidence at the former trial would be to adopt a further exception to the rule which excludes the testimony given at a former trial, and would not be conducive to the practical administration of justice. Robinson v. Gilman, 43 N.H. 295. Stein v. Swensen, 46 Minn. 360. Velott v. Lewis, 102 Penn. St. 326. Reed v. Orton, 105 Penn. St. 294. Rio Grande Southern Railroad v. Campbell, 55 Col. 493.
It follows that the order overruling the exceptions of the plaintiffs to the exclusion of the evidence by the master was right.
Decree accordingly.