197 F.2d 128 (2nd Cir. 1952), 207, Landon v. United States

Docket Nº:207, 22285.
Citation:197 F.2d 128
Case Date:April 30, 1952
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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197 F.2d 128 (2nd Cir. 1952)




Nos. 207, 22285.

United States Court of Appeals, Second Circuit.

April 30, 1952

         Argued March 10, 1952

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         John D. Kelly, Asst. U.S. Atty., of New York City (Myles J. Lane, U.S. Atty., of New York City, on the brief), for defendant-appellant.

         Robert H. Kilroe, of New York City, for plaintiff-appellee.

         Before SWAN, Chief Judge, and CLARK and FRANK, Circuit Judges.

         CLARK, Circuit Judge.

         The United States of America here appeals from a judgment against it obtained by the plaintiff under the Federal Tort Claims Act, 28 U.S.C.A. § 1346(b), formerly 28 U.S.C.A. § 931(a), for the personal injuries he sustained as a result of being struck by a truck owned and operated by the Post Office Department of the Government. Defendant's main attack

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is on the veracity of the plaintiff and his chief witness in their account of the way the accident occurred. While their credibility was under serious fire, they in turn launched a similar attack on the truck driver and the defendant's other witnesses. There was nothing necessarily incredible in the plaintiff's case. He was employed by the Western Electric Company in Kearny, New Jersey; and on April 2, 1947, he was to deliver a set of plans to an engineer at the company's plant on 42d Street, between Tenth and Eleventh Avenues, New York City. Riding north on a Ninth Avenue bus, he alighted on the south side of 42d Street about 5:30 p.m. on this rainy afternoon and started to his left on the south crosswalk when he was struck in the middle of the street by the post office truck coming rapidly north in disregard of traffic signals. The defendant's case on the other hand was that plaintiff, hurrying in the rain, himself ran into the truck. Thus, this was typically the situation in which the trier of facts, having seen and heard the witnesses, was required to determine where the truth lay. His findings of fact supporting the plaintiff's case thus cannot be held 'clearly erroneous.' F.R.C.P., Rule 52(a), 28 U.S.C.A.

         Defendant takes vigorous exception to the admission in evidence of the 'Employee's Treatment Record' from the Medical Department of the plaintiff's employer at Kearny, New Jersey. The doctor in charge of the traumatic section of the company's hospital not only testified to his own treatment of the plaintiff, but also identified the record as one made in the regular course of business of his department. Admissibility appears to come within the very terms of the statute, 28 U.S.C.A. § 1732, and we are at a loss to find basis for the objection. It is true that he was treated at once by the Roosevelt Hospital in New York City, where he remained for 21 days, and that the record here admitted begins with some recital of the previous case history. (The hospital records from the Roosevelt Hospital were already in evidence.) Further the record reports the diagnosis of another doctor identified by the testifying doctor, who did not himself make the diagnosis. But all this goes only to the weight of the evidence, not to its admissibility, as the statute makes abundantly clear. Ulm v. Moore-McCormack Lines, 2 Cir., 115 F.2d 492, rehearing denied 117 F.2d 222, certiorari denied 313 U.S. 567, 61 S.Ct. 941, 85 L.Ed. 1525; Buckminster's Estate v. C. I. R., 2 Cir., 147 F.2d 331; Tucker v. Loew's Theatre & Realty Corp., 2 cir., 149 F.2d 677; Korte v. New York, N.Y. & H.R. Co., 2 Cir., 191 F.2d 86, certiorari denied New York, N.H. & H.R. Co. v Korte, 342 U.S. 868, 72 S.Ct. 108. The special circumstances of Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645, 144 A.L.R. 719, where the defendant railroad sought admission of its own records for its own purposes, are not here present. See Pekelis v. Transcontinental & Western Air, Inc., 2 Cir., 187 F.2d 122, 129-130, certiorari denied Transcontinental & Western Air, Inc. v. Pekelis, 341 U.S. 951, 71 S.Ct. 1020, 95 L.Ed. 1374.

         Defendant also objects to the award as made by the trial judge, who allowed $6, 000 for the injuries, $662.63 for loss of earnings from April 3 to June 2, 1947, and hospital and medical expenses of $482.85- or a total of $7, 145.48. The award for injuries appears reasonable. Plaintiff did sustain serious and disabling injuries; how far an earlier accident may have been responsible was gone into quite thoroughly. Defendant directs a particular attack upon the allowance of loss of earnings and the amount of the hospital bills, saying that they are being, or will be, paid by plaintiff's employer and therefore are not recoverable from a third party, citing and relying on Drinkwater v. Dinsmore, 80 N.Y. 390. This particular aspect of the case requires somewhat fuller development.

         The Drinkwater case appears to have had a checkered career. There a plaintiff's judgment in a personal injury action was reversed for error in excluding a question to the plaintiff as to whether or not him employer paid his wages while he was disabled. The court said that to recover for them the plaintiff must show that he actually lost his wages, and hence defendant could offer evidence that plaintiff

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had earned none or that his employer had contracted to pay 'without service' or paid 'from mere benevolence.' This...

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