Clifford v. Drake , 14 Ill. App. 75 ( 1883 )

McAllister, P. J.

"We are of opinion that there was sufficient evidence, upon the trial below, that an article published in some copy of the Chicago Sunday Times, contained a correct account of the interview between the reporter of that paper and the defendant; and also, that there was some evidence tending to show knowledge on the part of the defendant, at the time, that such interview was to be published; but whether it was sufficient to' require the submission of that question to the jury, it is not necessary for us to decide. We are further of opinion, that there was sufficient evidence of the loss and destruction of the original notes of the reporter, and of the manuscript of the article which was published, to constitute such printed article the best evidence of the written account of what passed between the reporter and the defendant (and which was furnished by the reporter to the Times), that the case admitted of. Strader v. Snyder, 67 Ill. 408, and case cited. Starkie says: “Whether the writing be used merely as an instrument for restoring the recollection of a fact or be offered to be read as containing a true account of particulars entirely forgotten, it must, in conformity with the general principle of evidence, be the best for the purpose that the case admits of.” 1 Stark on Ev. 178.

We think the printed article was the best evidence of which the case admitted, under the circumstances shown. In 2 Phil, on Ev., 5th Am. ed.,* p. 925, it is said: “Where a witness on looking at a written paper has his memory so refreshed that he can speak to the facts from a recollection of them, his testimony is clearly admissible, although the paper may not have been, actually written by him. So also, where the witness recollects that he saw the paper when the facts were fresh in his memory, and remembers that he knew then the particulars therein mentioned to be correctly stated, his testimony is admissible.” And again, same volume, * p. 928: “A surveyor has been permitted to refresh his memory by a printed copy of a report furnished by him to his employes, and compiled from original notes, of which it was substantially, though not verbally, a transcript.” Herne v. MacKinzie, S. Cl. & Fin. 628, 630, 645. “And the-writer of an article in a newspaper, the manuscript of which article has been lost, has been allowed to look at the newspaper containing the article, for the purpose of refreshing his memory.”' Tipham v. McCregor, 1 C. & K. 320; 1 Greenleaf on Ev. § 436; 1 Whart. on Ev. § 519 et seq; Addler v. Railroad Co. 56 Ill. 344.

The case of Commonwealth v. Ford, 130 Mass. 64, contains a thorough review of the authorities and conclusively shows that it would have been entirely competent and proper for the witness, Cook, to have looked at the article in the paper, for the purpose of refreshing his recollection. The case in hand is different from that, in this respect: Here, the ultimate object was to have the article itself admitted in evidence, as constituting the gist of the action. In Commonwealth v. Ford, supra, the paper, to which it was proposed to have the witness look for the purpose of refreshing his memory, was in no event admissible. Hence, it was held that it was not material whether the reporter’s manuscript was lost or not. But in this case it would be material, because the manuscript was the better evidence, when it was sought to .give the contents of the printed article in evidence. Strader v. Snyder, supra. The matter of refreshing the memory of the witness by looking at such printed article would be of no consequence whatever, unless the article itself was of a defamatory character, referred to the plaintiff, and amounted not only to a libel, but the particular libel described in the declaration. Such article, therefore, whether offered for the purpose of refreshing the memory of the witness, or because it contained a true account of what passed between the witness and defendant, is to be regarded as a proposed instrument of evidence. We think sufficient was shown to bring it within the rule, applicable here, that the best evidence the case admitted of should be given. But how can we determine that the particular printed article referred to had any relevancy whatever to this case? It is not incorporated into the bill of exceptions.

In order to show that the plaintiff was prejudiced by the ruling below, it was indispensable that such article should be set out in the bill of exceptions. McLaughlin v. Walsh, 3 Scam. 185; McBain v. Enloe, 13 Ill. 76; Warner v. Manski, 17 Ill. 234; Deem v. Crume, 46 Ill. 69; Stock v. The People 80 Ill. 32.

The appellant can, therefore, take nothing by that assignment of error. Nor can he prevail upon the assignment of error, upon giving the peremptory instruction to the jury, to find for the defendant, because the bill of exceptions shows that his counsel expressly consented that the court might so instruct, and, besides, no exception was taken to it.

Neither is the assignment of error, upon overruling the-plaintiff’s motion for anew trial: well grounded. The plaintiff wholly failed to prove any cause of action, because, perhaps, of the exclusion of said printed article. Now, unless that was error, there is no ground for a new trial. We can not say whether it was or not, because we can know nothing about that article. When a plaintiff fails to prove his cause of action, and such failure is not the result of erroneous rulings' of the court, all other alleged errors are immaterial.

Judgment affirmed^