Colvin v. United States

• Decision Date: 08 June 1973
• Docket Number: No. 71-1221.,71-1221.
• Parties: R. H. COLVIN, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

479 F.2d 998 (1973)

R. H. COLVIN, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.

No. 71-1221.

United States Court of Appeals, Ninth Circuit.

Argued May 25, 1973.

Decided June 8, 1973.

N. Warner Lee, Asst. U. S. Atty. (argued), Richard K. Burke, U. S. Atty., Phoenix, Ariz., for defendant-appellant.

James W. Stewart (argued), Collins, Hays, Stewart, Sanford, Berg & Pott, Inc., San Jose, Cal., J. R. Babbitt, Flagstaff, Ariz., for plaintiff-appellee.

Before ELY, CARTER and TRASK, Circuit Judges.

OPINION

JAMES M. CARTER, Circuit Judge:

Mary E. Colvin was killed in an auto accident in which the driver was a Government employee. Colvin, the appellee, commenced the action below under the Federal Tort Claims Act, claiming damages for wrongful death as the surviving spouse of Mary E. Colvin; and also brought the action on behalf of Mary Carol Davis, the daughter of Colvin and his wife, and Shirley Ann Eitrein, a daughter of Mrs. Colvin by a former marriage. He recovered a judgment for $50,000.00 against the United States, decreased by $12,000.00 received by Colvin from another tortfeasor, making a net judgment of $38,000.00.

The Issues

The Government makes various contentions. We consider specifically two of them:

1. Was it error to admit into evidence an accident report and a hearsay statement of an eyewitness contained therein?

2. Was it error to admit testimony of the deceased's earnings based on an unproduced diary? We reverse.

In view of our disposition of the case, we make no detailed statement of the facts.

The accident out of which the death of Mrs. Colvin resulted occurred on May 27, 1965, on Highway 66 each of Flagstaff, Arizona. The deceased was a passenger in a vehicle owned by the United States of America and operated by Frances Eleanor Fairchild, an employee of the United States acting within the scope of her employment.

A delivery truck driven by Cleveland Quain approached the Starvout Trading Post north of old Highway 66. For the purpose of making a delivery, Quain made a left-hand turn across the oncoming traffic lane in which the Government vehicle was traveling. The Government vehicle made 50 feet of skid marks and crashed into the right-hand side of the truck. The posted speed limit was 50 miles per hour.

I.

The Introduction of the Accident Report and the Hearsay Statement

At trial the plaintiff presented as a witness Edward Boggio, a criminal investigator for the Bureau of Indian Affairs. He was one of a committee who investigated the accident and made a report. He did not have the original of the report but produced a copy. The report consisted of a description of the scene as observed by the committee members, their meeting with the officials of the local sheriff's office, photographs taken from the scene and of the two vehicles involved, together with a signed statement by Kent Tso taken in the presence of the witness. Mr. Tso did not speak English. His statement was therefore taken on tape, carried back to Tuba City and transcribed into English. The statement recited:

"I was standing in front of the Starvout Trading Post on May 27, 1965 at about 12:05 P.M. I saw the big truck approaching from Old Highway 66. He had missed the driveway entrance located south of the store, had slowed down almost to a stop, made a left turn across the right lane into the left lane near the center between the north and south driveways. After he had turned and was almost to the west edge of the highway next to the store, I noticed a Government car coming from the north at a speed of between 50 and 55 miles per hour." Emphasis added

The statement was marked as Exhibit 15. The Government objected to it on the ground that it was hearsay. The objection was overruled and the statement was admitted.

The Government contends that the statement was the sole evidence of negligence on the part of the driver of the Government car. Quain, the truck driver, testified that prior to his left-hand turn he looked ahead and saw no cars approaching. The only other possible eyewitness was Frances E. Fairchild, the Government employee who was driving the car in which Mrs. Colvin was riding. Her signed statement, offered by the appellee Colvin, said she had no recollection of the events at the immediate time of the accident.

The trial court found that the driver of the Government vehicle "was operating defendant's vehicle in a careless and negligent manner in that said operator was traveling at an excessive rate of speed, and in that said operator failed to observe the truck executing a left-hand turn, which in the exercise of ordinary care she should have observed in ample time to avoid the collision."¹

Rule 43, Federal Rules of Civil Procedure, lays down a three-fold test for admissibility of evidence in the federal courts. The test most favorable to the receipt of the evidence must be used. Thus, state rules cannot be used to exclude evidence if that evidence is admissible under federal law or federal statutes. 5 J. Moore, Federal Practice ¶ 43.04, at 1325-26, 1343 (2d ed. 1971). Cf. Potlach Oil & Ref'g Co. v. Ohio Oil Co. (9 Cir. 1952), 199 F.2d 766, 772, cert. denied, 345 U.S. 926, 73 S.Ct. 786, 97 L.Ed. 1357 (1953); Allen v. Matson Navigation Co. (9 Cir. 1958), 255 F.2d 273, 279. The Government cites Arizona case law in support of its contention that Tso's statement was inadmissible. Since we find no Arizona cases favoring the admission of the hearsay statement, we look to 28 U.S.C. §§ 1732 (Business Records) and 1733 (Official Records), and federal case law.

The admissibility of an accident report, and particularly a hearsay statement of a bystander, has been a troublesome question for the courts.

The statement of Tso was hearsay. There is no showing in the record that he was anything but a bystander, nor that he had any relationship with either of the parties or was under any duty to report information to the Government investigating committee.

The proposed Rules of Evidence for the United States Courts and Magistrates ( hereafter, Rules of Evidence ) now pending before the Congress are not controlling. However, proposed Rule 803, §§ (6) and (8),² and the commentary in the notes of the Advisory Committee³ are helpful.

There is an overlap in the matters discussed in the Note of the Advisory Committee to the proposed Rules of Evidence in its discussions of the exceptions in Rule 803 under (6), "Records of regularly conducted activity," and (8), "Public records and reports." Thus the note on Exception (8) refers to this as a recognized hearsay exception, an example of which is

". . . 28 U.S.C. § 1733, the relative narrowness of which is illustrated by its nonapplicability to nonfederal public agencies, thus necessitating resort to the less appropriate business record exception to the hearsay rule. Kay v. United States, 255 F.2d 476 (4th Cir. 1958). The rule 803 makes no distinction between federal and non-federal offices and agencies."

The Note of the Advisory Committee on Exception (6), "Records of regularly conducted activity," specifically discussed a police report which, of course, would be a public record. In its discussion of Exception (8), "Public records and reports" the Note states, "Hence the rule 803(8) as in Exception (6), assumes admissibility in the first instance but with ample provision for escape if sufficient negative factors are present."

The case law also contains this overlap between business and official records. The leading case in the Ninth Circuit on 28 U.S.C. § 1732 is Standard Oil Co. v. Moore (1957), 251 F.2d 188, 212-217, cert. denied, 356 U.S. 975, 78 S.Ct. 1139, 2 L.Ed.2d 1148 (1958).

The court held that a writing will not qualify under 28 U.S.C. § 1732 unless the recitals are factual in nature. Id. at 213-214; accord, Panotex Pipe Line Co. v. Phillips Petroleum Co. (5 Cir. 1972), 457 F.2d 1279, 1284, cert. denied, 409 U.S. 845, 93 S.Ct. 48, 34 L.Ed.2d 86. The Standard Oil court noted that there are special circumstances in which an expert opinion is admissible, but held that expressions of opinions on matters which do not call for professional or scientific knowledge are not admissible. Id. 185 F.2d at 214. In our case the investigation report contains a statement by Mr. Tso about the speed of the car.

The case holds further:

"where the entrant or maker records information supplied by others, it must appear that `it was part of their the declarants\' regular course of business to report to him what the declarants themselves knew, as it was part of his business to record what they said,\' United States v. Grayson, 2 Cir., 166 F.2d 863, 869. Footnote omitted. Where the information comes to the entrant or maker from unauthorized persons, the memorandum or record is therefore inadmissible, not because it contains hearsay, but because it was not made in the regular course of business." Id. 251 F.2d at 214.

For a document to be admissible under 28 U.S.C. § 1733 (Official Records) "the facts stated in the document must have been within the personal knowledge and observation of the recording official or his subordinates, and . . . reports based upon general investigations and upon information gleaned second hand from random sources must be excluded." (Citing cases.) Olender v. United States (9 Cir. 1954), 210 F.2d 795, 801; accord, Independent Iron Works, Inc. v. United States Steel Corp. (9 Cir. 1963) 322 F.2d 656, 671-672, cert. denied, 375 U.S. 922, 84 S.Ct. 267, 11 L.Ed.2d 165. Contra, McKee v. Jamestown Baking Co. (3 Cir. 1952), 198 F.2d 551, 556 (error not to admit police chief's report which summarized witnesses' statements, but not prejudicial because he testified in person), limited to its facts, Gordon v. Robinson (3 Cir. 1954), 210 F.2d 192, 197-198 n. 9 (reversible error in admitting officer's oral opinions, based on report, on ultimate issues); Juaire v. Nardin (2 Cir. 1968), 395 F.2d 373, 379, cert. denied sub nom. Juaire v. Walter...