Garrett v. Morris Kirschman & Company, Inc.

336 So. 2d 566
CourtSupreme Court of Florida
DecidedJune 9, 1976
Docket47236
StatusPublished
Cited by56 cases

This text of 336 So. 2d 566 (Garrett v. Morris Kirschman & Company, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Garrett v. Morris Kirschman & Company, Inc., 336 So. 2d 566 (Fla. 1976).

Opinion

336 So.2d 566 (1976)

Thomas G. GARRETT and Willie Mae Garrett, Husband and Wife, Petitioners,
v.
MORRIS KIRSCHMAN AND COMPANY, INC., a Corporation, and Continental Assurance Company, a Corporation, Respondents.

No. 47236.

Supreme Court of Florida.

June 9, 1976.
Rehearing Denied September 21, 1976.

*567 Lefferts L. Mabie, Jr., of Levin, Warfield, Middlebrooks, Graff, Mabie, Rosenbloum & Magic, Pensacola, for petitioners.

Robert P. Gaines, of Beggs & Lane, Pensacola, for respondents.

HATCHETT, Justice.

Petitioners were the plaintiffs in an action brought against respondents on account of an automobile accident in which Mr. Garrett was injured.[1] Mrs. Garrett sought compensation for loss of "the services, society and consortium of her husband" (R 2) attributable to the accident. Because liability was conceded, the jury had only the question of damages to resolve. At the trial, petitioners' counsel undertook to prove, inter alia, the extent of medical expenses incurred in consequence of the accident, and diminution of Mr. Garrett's income as a result of his injuries. Judgment was entered in favor of each petitioner.

On appeal to the District Court of Appeal, First District, that court "remanded for a new trial on the issue of damages," Morris Kirschman & Co. v. Garrett, 308 So.2d 575 (1975), with one judge concurring specially in the judgment. The majority concluded that copies of income tax forms which had been filled out by Mr. Garrett's employer, should not have been used to refresh Mr. Garrett's recollection, and should not have come into evidence. In addition, the District Court concluded that the burden of proving the necessity and reasonableness of Mr. Garrett's medical expenses was not met. We granted certiorari on the basis of conflict between the District Court's decision in this case and other Florida appellate decisions, among which are United Sand & Material Corp. v. Florida Indus. Com'n, 201 So.2d 451 (Fla. 1967); Shaw v. Puleo, 159 So.2d 641 (Fla. 1964); Lindberg v. State, 134 Fla. 786, 184 So. 662 (1938); Atlanta & St. A.B. Ry. Co. v. Ewing, 112 Fla. 483, 150 So. 586 (1933); Volusia County Bank v. Bigelow, 45 Fla. 638, 33 So. 704 (1903); Jenkins v. State, 31 Fla. 196, 12 So. 677 (1893); King v. Califano, 183 So.2d 719 (Fla.App. 1st, 1966); Lobree v. Caporossi, 139 So.2d 510 (Fla.App. 2nd, 1962); and Chaudoin v. State, 118 So.2d 569 (Fla.App. 2nd, 1960).

*568 We agree with the District Court that the portion of the judgment based on the verdict in favor of Mr. Garrett must be reversed because of the admission into evidence, over objection on hearsay grounds, of copies of Mr. Garrett's employer's tax returns. There was no requirement to lay any predicate, however, for the use of those documents to revive present recollection. Before the papers were offered into evidence, plaintiffs' counsel furnished them to Mr. Garrett while he was on the witness stand:

By Mr. Mabie:
Q. Would you tell us what your — first of all let me hand you this and ask you if this is a copy of your form 1099s, your United States Information Return for the calendar years nineteen seventy, and nineteen seventy-one, and nineteen seventy-two showing what your total income was for each of those respective years from ABC Auto Sales?
A. Yes, sir.
Q. And what was your income in nineteen seventy, the year before the accident?
MR. GAINES: We object to that on this record, Your Honor, on the grounds that this is a self serving declaration which he[2] filed with the United States Government, and if he is going to testify from the records, it should be the original records.
THE COURT: Objection overruled.
A. In nineteen seventy I made sixteen thousand two hundred and sixty-two dollars and seventy cents.
MR. MABIE:
Q. And what in nineteen seventy-one?
MR. GAINES: Same objection, Your Honor.
THE COURT: Objection overruled.
A. Seven thousand nine zero one forty-eight.
MR. MABIE:
Q. And what was your income in nineteen seventy-two?
MR. GAINES: Same objection, Your Honor.
THE COURT: Overruled.
A. Six thousand six hundred and thirty-six dollars and forty-three cents.

Assuming for purposes of decision that the witness testified from present recollection,[3] the trial court correctly overruled defense counsel's objection. The use of copies of tax returns to stimulate and revive an independent recollection has been specifically approved by other courts, Freehill v. DeWitt County Service Co., 125 Ill. App.2d 306, 261 N.E.2d 52 (1970); J.A. Robinson Sons, Inc. v. Wigart, 420 S.W.2d 474 (Tex. Civ.App. 1967), and is fully consistent with the general rules governing the revival of a recollection. See 3 Wigmore on Evidence § 758 et seq. (1970); Maguire & Quick, Testimony: Memory and Memoranda, 3 How.L.J. 1 (1957). In requiring "a foundation" for such use, the District Court stated a rule contrary to the law of Florida as laid down in United Sand & Material Corp. v. Florida Indus. Com'n, supra; Atlanta & St. A.B. Ry. Co. v. *569 Ewing, supra; Jenkins v. State, supra; King v. Califano, supra; and Chaudoin v. State, supra.

When a writing is used only to revive present recollection, it need not have been written by the witness himself. Chaudoin v. State, supra ("no rule of evidence ... prohibits a witness from referring to notes made by another to refresh his memory." At 571-572). A paper used to revive present recollection does not have to be an original. Davis v. State, 47 Fla. 26, 36 So. 170 (1904); King v. Califano, supra; State v. Liston, 18 Or. App. 26, 523 P.2d 609 (1974). In many jurisdictions it is immaterial when the writing was made, if it is used only to elicit present recollection. Gauthier v. State, 28 Wis.2d 412, 137 N.W.2d 101 (1965) cert. den., 383 U.S. 916, 86 S.Ct. 910, 15 L.Ed.2d 671 (1966); Smith v. Bergmann, 377 S.W.2d 519 (Mo. App. 1964); Carter v. Carter, 187 Kan. 74, 353 P.2d 499 (1960); Smith v. State, 205 Tenn. 502, 327 S.W.2d 308 (1959), cert. den. 361 U.S. 930, 80 S.Ct. 372, 4 L.Ed.2d 354 (1960). But cf. Great Atlantic & Pacific Tea Co. v. Nobles, 202 So.2d 603 (Fla.App. 1st Dist., 1967). As a corollary to the rules allowing such wide latitude in the choice of writings as mnemonic aids, the writings used to prompt recollection are not necessarily admissible in evidence themselves.

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336 So. 2d 566, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garrett-v-morris-kirschman-company-inc-fla-1976.