Summary
The court held that the plaintiff improperly used business records to refresh his memory when he lacked personal knowledge of the records' accuracy. However, because the testimony was not stricken and the plaintiff could have presented other evidence, the proper remedy was a new trial rather than judgment for the defendant notwithstanding the verdict.
Topics
Practice areas
Questions Presented
- Whether the plaintiff was improperly permitted to refresh his memory from time sheets and other records concerning the labor and materials furnished.
- Whether the trial court properly entered judgment notwithstanding the verdict after determining that the plaintiff's testimony was based on the improperly used records.
- Whether the proper remedy for the evidentiary error was a new trial rather than judgment for the defendant.
Holdings
- A witness may not use a record to refresh memory when the witness lacks personal knowledge of the exact facts recorded and does not know whether the record correctly states those facts.
- Judgment notwithstanding the verdict was improper because the plaintiff's testimony had not been stricken and the plaintiff could have supplied other evidence of the labor and materials.
- When improper evidentiary testimony was admitted and the plaintiff may be able to prove the claim through other evidence, the appropriate remedy is a new trial rather than judgment for the defendant.
Key quotations
“But the remedy for the mistake was not the entry of judgment for defendant. If defendant's motion to strike out the testimony had been granted, and plaintiff presented no other evidence to take the case to the jury, the judgment might be sustained. The trouble is that the testimony was not stricken out and plaintiff had the right to rely upon it.” (at 115-116)
“The remedy for the correction of the error was to grant a new trial. The judgment is reversed and a new trial is ordered.” (at 116)
Factual background
The plaintiff repaired the roof of the defendant's home after being hired by the defendant's wife, whom the jury found to have acted with authority that the defendant later ratified. The defendant was present during portions of the work and objected to the bill only as excessive, not to the fact that work had been performed. To establish the quantity and value of labor and materials, the plaintiff used time sheets prepared by his foreman, although he lacked personal knowledge that the records were accurate.
Procedural history
The plaintiff prevailed at two trials, with the second resulting in a $1,100 verdict. The trial court granted judgment notwithstanding the verdict because the plaintiff's testimony concerning the amount of labor and materials was based on records improperly used to refresh his memory. The Superior Court reversed and ordered a new trial.
Remand instructions
The judgment for the defendant is reversed, and a new trial is ordered.