129 F.2d 976 (2nd Cir. 1942), 261, Hoffman v. Palmer

Docket Nº:261.
Citation:129 F.2d 976
Party Name:HOFFMAN v. PALMER et al.
Case Date:June 23, 1942
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 976

129 F.2d 976 (2nd Cir. 1942)

HOFFMAN

v.

PALMER et al.

No. 261.

United States Court of Appeals, Second Circuit.

June 23, 1942

As Amended July 31, 1942.

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Benjamin Diamond, of Brooklyn, N.Y. (William Paul Allen, Edward H. Wilson, and Milton Dombroff, all of New York City, of counsel), for plaintiff-appellee.

E. R. Brumley, of New York City, for defendants-appellants.

Before SWAN, CLARK, and FRANK, Circuit Judges.

FRANK, Circuit Judge.

Appellants, as trustees in reorganization of the New York, New Haven and Hartford Railroad Company, appeal from a judgment, entered upon a jury verdict, awarding $25, 077.35 to the plaintiff in his individual capacity and $9, 000 to him as administrator of his wife's estate. The action grew out of an accident which occurred at a grade crossing of the appellant railroad in West Stockbridge, Mass. On December 25, 1940, at about 6:15 P.M., the plaintiff was driving a Ford coupe, with his wife as a passenger, at this crossing, when the car was struck by a locomotive engine, causing severe and permanent injuries to the plaintiff and the death of his wife. The complaint alleged that the railroad was negligent in failing to ring a bell or blow a whistle while approaching the crossing, and in failing to have a proper headlight; in view of the verdict, no issue is raised as to appellants' liability if the rulings on evidence and the charge to the jury were proper, and the alleged errors pertain exclusively to these matters. The alleged errors are four in number, and will be taken up seriatim.

1. Appellants urge that the judgment must be reversed because of the court's refusal to admit in evidence a statement signed by the locomotive engineer who was driving the engine when the accident occurred; the statement is in question-and-answer form and represents a stenographic record of an interview, two days after the accident, between the engineer and an assistant superintendent of the railroad. Present at the interview were two other employees of the railroad, and a Mr. Christie, of the Massachusetts Public Utilities Commission. The latter took only a minor part in the interview. 1 Appellants offered merely the engineer's statement, and offered to prove that 'this statement was signed in the regular course of business and that it was the regular course of such business to make such statement. ' The engineer was dead at the time of the trial. The statement was excluded, upon appellee's objection. Since the statement purportedly represents the engineer's version

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of the accident, it is urged that its exclusion was prejudicial to the defense. Its exclusion was proper, says appellee, because it offends the hearsay rule.

The engineer's report would clearly be excluded under the common law rule. It does not come within the exceptions as to declarations by a deceased witness. Shepard v. United States, 290 U.S. 96, 54 S.Ct. 22, 78 L.Ed. 196; People v. Sarzano, 212 N.Y. 231, 106 N.E. 87. Nor is it the kind of record that falls within the common law exception as to memoranda made in the regular course of business. For the courts-- as an inherent and integral part of the 'regular course of business' exception to the hearsay rule-- have always imposed this requirement, which the engineer's statement here clearly fails to meet: The person making the record, or supplying the information on which it is based, must have had no peculiarly powerful motive to misrepresent; such a motive, if it exists must be relatively minimal and marginal. Wigmore, speaking of records made in the regular course of business, says: 2'It is often added that there must have been no motive to misrepresent. This does not mean that the offeror must show an absence of all such motives; but merely that if the existence of a fairly positive counter-motive to misrepresent is made to appear in a particular instance, the entry would be excluded.'

This motive factor has often been stressed in the decisions. In Conner v. Seattle, R. & S. Ry. Co., 56 Wash. 310, 105 P. 634, 635, 25 L.R.A., N.S., 930, 134 Am.St.Rep. 1110, the facts were substantially the same as those in the instant case. There a report of an accident was made in writing by the conductor of a street car, involved in the accident, immediately following the accident, and was soon thereafter given to the defendant Street Railway Company in compliance with its rules. It was urged that the report was admissible 'as an original entry made in the due course of the business of the company and made contemporaneously with the transactions recorded. ' In sustaining the exclusion of this evidence, the court said: 'For the sake of argument, we may admit that the report was made in due course and in compliance with a rule and custom universally followed. Yet we are quite unable to see how the statements made in such report can escape the objection of being self-serving, in so far as they were favorable to appellant's contentions (and, of course, it was because they were so favorable that they were offered to support its contentions), being made by appellant's agent and in its interest concerning facts which the agent at the time of making them knew would most likely become matters of dispute and drawn into litigation. Indeed, it is evident that the very making of the report upon the facts surrounding the accident was prompted by the possibility of the respondent claiming damages and suing the appellant therefor. * * * In this case the record of the facts, in the form of the conductor's report, was made for the very purpose of aiding appellant in possible future litigation with the respondent. ' The court distinguished an earlier case where the question of fact was whether or not a woman was a passenger upon a certain car during a certain trip, she having testified that she had paid her fare by transfer slip; the conductor's trip report was there held admissible as having been made in the regular course of business. Speaking of that case, the court, in the Conner case, said: 'We think a careful reading of that decision will show that the court did not regard the report as self-serving, for the reason it was not made under circumstances when there were any inducements whatever to record the facts other than as they actually occurred at the time. It was nothing more or less than a simple matter of bookkeeping in the usual course of business, without any thought of future litigation drawing the facts so recorded in question. It was by reason of the absence of such considerations at the time of making the report that it was there admitted in evidence. ' In Bloom v. Union Railway Company, 165 A.D. 257, 150 N.Y.S. 779, and North Hudson Ry. Co. v. May, 48 N.J.L. 401, 5 A. 276, the courts reached the same result on similar facts.

In the Conner case, the conductor's report was (1) made pursuant to a rule imposing a duty to make it and (2) was made in the 'regular course of business:-- using those words in their colloquial sense. But the court refused to give them such a colloquial meaning, since, if it did so, the foundation of the 'regular course of business' exception would disappear. Those words had come to be a short-hand expression or symbol for a doctrine, the

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essence of which is the reliance on records where the circumstances in which they were made furnish sufficient checks against inducements to misstate to make them trustworthy, give them 'some badge of truthfulness.'

That basic concept is recurrently expressed in the cases. In Freedman v. Mutual Life Ins. Co., 1941, 342 Pa. 404, 21 A.2d 81, 85, 135 A.L.R. 1249 hospital records were held admissible where there were present 'no contemplative motive for falsification.' In Re Fennersteins' Champagne, 3 Wall. 145, 147, 18 L.Ed. 121, the court emphasized the ingredient that 'there was no motive to falsify. ' In Poole v. Dicas, 1 Bing., N.C. 649, 131 Eng.Rep. 1267, Tindal, C.J., said: 'The clerk had no interest to make a false entry: If he had any interest, it was rather to make a true entry; it is easier to state what is true than what is false; the process of invention implies trouble, in such a case unnecessarily incurred; and a false entry would be likely to bring him into disgrace with his employer. Again, the book in which the entry was made was open to all the clerks in the office, so that an entry if false would be exposed to speedy discovery. ' In other cases, the absence of a motive to misrepresent is said to be 'condition' of admissibility. See Polina v. Gray, L.R. 12 Ch.Div. 411, 429-430; Lassone v. Boston & L.R. Co., 66 N.H. 345, 24 A. 902, 903-906, 17 L.R.A. 525, and cases there cited; Malone v. L'Estrange, 2 Ir.Eq.R. 16. In Lord v. Moore, 37 Me. 208, 220, the requirement was said to be that the entrant's situation 'was such as to exclude all presumption of his having any interest to misrepresent the fact recorded. ' And Gray, J., in Kennedy v. Doyle, 1865, 10 Allen, Mass., 161, 167 says that no only must there be 'no interest to misrepresent, ' but also that the entry must be made 'before any controversy or question has arisen.'

The statement of the engineer may be compared with the 'protests' of mariners, which, although made by them as a matter of duty and in the regular course of their business, are inadmissible on behalf of their ships because the courts have always recognized that these reports will be biased and partisan disclaimers of responsibility for a disaster. See, e.g., Merriman v. The May Queen, Fed. Cas. No. 9, 481. In Hand v. The Elvira, Fed. Cas. No. 6015, the court said that in such a document 'the waves are almost always mountain high, the winds never less than a hurricane, and the peril of life generally impending.'

This court has...

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