Holler v. Miller

BOND, C. J., delivered the opinion of the Court. This is a second suit arising from the accident described in the report of Holler v. Lowery, 175 Md. 149 , 200 A. 353 , but the evidence produced is not the same;' no witnesses testified for the defendants; and the legal questions differ to some extent. As appears from the report of the Lowery case, the plaintiff in this one, Miss Miller, was beside Miss Lowery as the two, with a third, came from the Celanese factory at night, were stopped by Holler’s car as it drove oút from its parking space and up on the shoulder of the road, and were struck up against that car by another car, on its wrong side of the road, driven by Stevens. For injuries to Miss Miller a judgment has been recovered against both Holler and Stevens, and Holler alone has appealed. ²⁰⁷ In the former case evidence of negligence on Holler’s part, sufficient for consideration of the jury, was found in his own testimony that he stood, blocking the young women, although he could have backed his car out of the way of danger after he saw the Stevens car approaching.

And this testimony, or what were thought to be essential parts of it, the present plaintiff sought to introduce in testimony on her behalf as admissions of Holler. The court stenographer officiating at Miss Lowery’s trial, called as a witness for Miss Miller, testified that his original stenographic notes of testimony at that former trial had been destroyed, but he had the transcript which he made of them. And the plaintiff asked whether, after refreshing his recollection from that transcript, he could say that the defendant Holler testified as quoted. Looking at his transcript, the stenographer repeated the testimony sought.

This was objected to, first, because the disconnected answers did not give the whole of Holler’s testimony on the fact to be proved; and on its appearing that the witness was not refreshing his recollection, but reading the transcript, which he knew to be a true extension of his notes, a motion to strike out all the quoted answers was made because the testimony did not conform to the offer of refreshed recollection. The witness stated explicitly that he did not recall the former questions in the ordinary sense of the word, but knew they were asked because they appeared in his record. The court overruled the objections and the motion, and this action is the subject of a number of exceptions pressed on appeal. It is not disputed that relevant admissions of a party made in a former proceeding may be placed in evidence.

Merchants’ Bank v. Marine Bank, 3 Gill 96, 124 ; Nicholson v. Snyder, 97 Md. 415 , 55 A. 484 ; Cady v. Doxtator, 193 Mich. 170 , 159 N. W. 151 ; Omaha v. Jensen, 35 Neb. 68, 73 , 52 N. W. 833 . But on the authority of Baltimore v. State, use of Biggs, 132 Md. 113, 120 , 103 A. 426 , it is denied that they may be introduced directly by a stenographer’s transcript of testimony during the course of ²⁰⁸ which the admissions were made. In that case, however, the court held only that an attorney could not merely read what he offered as a transcript. And in the case of Herrick v. Swomley, 56 Md. 439, 462, the notes of a Pennsylvania stenographer, certified under the Act of Congress, were excluded as not a part of the record which could be introduced in this state without supporting testimony.

When, as here, the stenographer himself, by his testimony in court, verifies the transcript as an authentic extension of his notes, the case is different. In addition to the assurance of authenticity afforded by his oath, there is official character in the transcript because the stenographer is appointed by the court, under the authority of a statute, for the very purpose of preserving testimony. Code, Pub. Loc.

Laws, art. 11, sec. 87. It is settled that he may testify from his notes, without reference to independent recollection. Baltimore v. State, use of Biggs, supra. And his transcript is only a more convenient form of testimony from his notes.

Cady v. Doxtator, 193 Mich. 170 , 159 N. W. 151 ; Omaha v. Jensen, 35 Neb. 68, 73, 52 N. W. 833 . Therefore the fact that the stenographer in this instance had no independent recollection, and was in reality introducing the transcript in evidence, did not render it inadmissible as supposed. The motion to strike it out on that ground was properly overruled, and the admissions are properly in the case unless .subject to some other objection. It is true that when part of a statement in any written form is thus offered against a party, it must be accompanied by all other relevant parts.

All parts possibly tending to qualify the admissions or to present the whole effect of what was said or written on that point, must be given to the jury. Reynolds v. Manning, 15 Md. 510, 528 ; Askin v. Moulton, 149 Md. 140, 146 , 131 A. 82 ; State for Use of Balderston v. Hopkins, 173 Md. 321, 325 , 196 A. 91 ; Wigmore, Evidence (2nd Ed.), secs. 1048 etc., 1051. For it is to the sum total that the speaker has committed himself. On the defendants’ objections in this instance the court could not well, as a practical matter, ²⁰⁹ have required the reading of the other parts demanded unless they were pointed out, and in fact Holler’s attorney himself did introduce other parts of his testimony, presumably all other parts he wished.

On the record as it is, this court finds no reversible error in the exceptions considered. The testimony of the plaintiff and other witnesses on her behalf was that as she, Miss Lowery, and another, afoot, reached the parking place of Holler’s car, it came out suddenly, with its lights, but without sounding its horn, and as it stopped struck Miss Lowery and Miss Miller on the legs, so that they might have fallen had they not balanced themselves against the car. No injury is attributed to that contact. They called a warning to Holler.

And at almost precisely that moment, the Stevens car, coming on the opposite side, its right side, of the road, met a car coming out of the parking space on that side, and made a sudden swerve over to its left and struck Miss