## Facts

- Theodore Adams (plaintiff) sued New York Central Railroad Co. (defendant) in the Court of Common Pleas of Cuyahoga County, Ohio, seeking damages for severe personal injuries, including quadriplegia, allegedly caused by a railroad-related incident.
- The railroad denied that the incident caused Adams’s condition and tried to show Adams’s injuries were sustained before the event alleged in the lawsuit.
- After the alleged incident, an employee of Adams’s insurance company interviewed Adams and prepared a memorandum summarizing the interview.
- The railroad offered the memorandum to support its causation defense, asserting that during the interview Adams discussed a prior injury but did not mention the injury he later attributed to the railroad at trial.
- At trial, the insurance-company employee testified that he had no present recollection of what he and Adams discussed during the interview, even after reviewing the memorandum.
- The employee testified that he prepared the memorandum at the time of the interview or shortly thereafter, when his memory of the conversation was clear.
- The employee also testified that the memorandum accurately recorded his conversation with Adams as he understood it at the time he wrote it.
- Adams objected to the memorandum’s admission on hearsay grounds.

## Issues

1. When a witness lacks present recollection, may a memorandum be admitted as recorded recollection if the witness testifies it was made when the matter was fresh and was accurate when made?
2. Must a memorandum offered as recorded recollection also qualify as a formal business record to be admissible for its truth?

## Decision

- The court sustained Adams’s hearsay objection and excluded the insurance-company employee’s memorandum.
- The court concluded that the memorandum could not be admitted as recorded recollection because it did not qualify as a business record in the strict sense required by the court.

## Legal Principles

- A writing may be used to refresh a witness’s memory; if the witness’s memory is refreshed, the evidence is the witness’s testimony from present recollection, not the writing itself.
- If a witness cannot testify from present recollection, a writing may qualify as recorded recollection when the witness once had knowledge, the writing was made or adopted when the matter was fresh, and the witness can testify it was accurate when made.
- In this decision, the court treated admissibility of recorded recollection as dependent on the document meeting business-record requirements, rather than admitting an accurate, contemporaneous memorandum solely on the recorded-recollection foundation.
- Informal interview notes or a memorandum prepared by an insurance employee, even if made promptly and claimed to be accurate, were not treated as a sufficiently formal record kept in the regular course of business to be admitted for their truth under the court’s view.

## Conclusion

In Adams’s personal-injury suit against New York Central Railroad, the railroad attempted to introduce an insurer employee’s interview memorandum to argue Adams’s paralysis resulted from an earlier injury and that Adams did not mention the claimed railroad-related injury in the interview. Although the employee testified he made the memorandum at or near the time of the interview, had a clear memory then, and recorded the conversation accurately, the trial court excluded the memorandum as hearsay, ruling it could not come in as recorded recollection because it was not a formal business record.


Adams v. New York Central Railroad Co., Docket No. 724,072 (1961)