Battles v. Tallman , 96 Ala. 403 ( 1892 )

WALKEB, J.

The controverted question of fact in the case was the age of the plaintiff’s daughter, Mrs. Mayo, at the date of the issuance of the license for her marriage. The plaintiff himself testified, that his daughter was at that time under eighteen years of age. Of course it was competent, for tbe purpose of discrediting tbe testimony of tbe witness, to prove that be bad made a former statement in reference to tbe age of bis daughter wbicb would show tbat sbe was more tban eighteen years old when tbe license was issued. Tbe plaintiff himself admitted tbat be stated tbe ages of bis children to Mr. Murphree, who was tbe census enumerator in 1880. Mr. Murphree was examined as a witness for tbe defendant. He testified tbat he put down tbe answers of tbe plaintiff to tbe questions as to tbe ages of tbe members of tbe latter’s family, and tbat tbe census-book wbicb was kept in tbe office of tbe judge of probate was a copy made by tbe witness from bis original entries, wbicb be bad sent to Washington. Against the objection of tbe plaintiff, this census-book itself was admitted as evidence for tbe defendant. Tbe entries therein showing tbe ages of plaintiff’s children were memoranda wbicb tbe witness could have referred to for tbe purpose of refreshing bis memory as to tbe statement on tbe subject made to liim by tbe plaintiff. Tbe absence of tbe original was accounted for, and tbe correctness of tbe copy was shown. But such a memorandum itself is not admissible, except when called for by tbe adverse party, unless tbe witness, after examining it, can not testify to a present recollection of tbe fact therein noted. If tbe witness, when bis memory lias been refreshed, can state tbe particulars from recollection, such statement is tbe better evidence, and tbe party who calls him is not entitled to tbe admission of tbe memorandum as evidence in tbe cause. But if tbe witness, being unable to recall tbe. matter so tbat be now remembers what occurred, yet testifies tbat, at or about tbe time tbe memorandum was made, be knew its contents, and knew them to be true, then tbe memorandum itself may be admitted in connection with bis testimony to this effect. Acklen v. Hickman, 63 Ala. 494; Jaques v. Horton, 76 Ala. 238; Galloway v. Varner, 77 Ala. 541; Snodgrass v. Caldwell, 90 Ala. 319. In tbe present case, it was not made 'to appear tbat tbe witness was unable to recall tbe answers of the plaintiff to tbe question as to tbe ages of bis children. If tbe witness, after bis memory was revived by referring to tbe entries, could remember what tbe plaintiff stated to him was tbe age of bis daughter, tbe defendant was not entitled to introduce tbe memorandum as evidence to show what tbe statement was, but should have proved such statement by tbe testimony of tbe witness himself. In any event, only tbat part of the census-book wbicb contained tbe entries based upon statements shown to have been made by tbe plaintiff was admissible against him. The reports of the census enumerator as to other matters, with which the plaintiff was not connected in any way, were wholly irrele-vent. The entire book containing such reports was not admissible against the plaintiff’s objection. — Memphis & Charleston R. Co. v. Askew, 90 Ala. 5.

Charge one given at the instance of the defendant assumes the truth of the testimony of the witness Murphee, to the effect that the plaintiff stated to him the age of his daughter Anna, and that the entry in the census report was based upon such statement. This charge was also abstract, as there was no evidence that the ages of plaintiff’s other children were correctly given in the enumerator’s report.

The measure of proof required by the language used in charges three and five is too high. In a civil case, the jury are authorized to find that a controverted fact lias been established, if a preponderance of the evidence reasonably satisfies them of its truth. The expression “an abiding conviction” implies such a degree of certainty as would justify a verdict of guilt in a criminal case.' — Griffith v. The State, 90 Ala. 588. Such certainty is not required in a civil case. It may be said that a fact is left in doubt and uncertainty, if there is any doubt and any uncertainty as to its existence. A jury is not required to be without doubt, and certain of the correctness of their finding, in a civil case. Some degrees of doubt and uncertainty are not incompatible with that reasonable conviction which is all that is required in civil cases.' — Thompson v. L. & N. R'd Co., 91 Ala. 496 ; Birmingham Union Railway Co. v. Hale, 90 Ala. 8 ; Wilkinson v. Searcy, 76 Ala. 176.

Reversed and remanded.