Boren v. Sable, 87-2737

• Decision Date: 10 October 1989
• Docket Number: No. 87-2737,87-2737
• Citation: 887 F.2d 1032
• Parties: 28 Fed. R. Evid. Serv. 1286 Stanley L. BOREN, Plaintiff-Appellant, Shirley Boren, Plaintiff, v. Donald SABLE, Sr.; and Donald Sable, II, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1032

887 F.2d 1032

28 Fed. R. Evid. Serv. 1286

Stanley L. BOREN, Plaintiff-Appellant, Shirley Boren, Plaintiff, v. Donald SABLE, Sr.; and Donald Sable, II, Defendants-Appellees.

No. 87-2737.

United States Court of Appeals, Tenth Circuit.

Oct. 10, 1989.

Les Bowron (Stephen R. Winship with him, on the briefs) of Donald R. Winship & Associates, P.C., Casper, Wyo., for plaintiff-appellant.

Robert M. Shively (Steven R. Helling with him, on the briefs) of Murane & Bostwick, Casper, Wyo., for defendants-appellees.

Before LOGAN, McWILLIAMS and BRORBY, Circuit Judges.

BRORBY, Circuit Judge.

In this diversity suit for personal injuries the plaintiff, Stanley L. Boren, appeals from a jury verdict for the defendant, Donald Sable, II. Boren asserts the district court erred in excluding as hearsay the testimony of three witnesses who could have testified regarding nonhearsay admissions of a party-opponent under Fed.R.Evid. 801(d)(2)(D) (1983). Boren asserts the exclusions were prejudicial error requiring reversal and a new trial. We affirm.

Boren's hand was injured during maintenance of a Reed-Prentice plastic injection molding machine located at the Positive Action Tool Company, Inc. (PATCO). Boren was attempting to change a sprue bushing when the mold closed and crushed his hand. Boren brought suit against Sable, a PATCO stockholder, officer and plant manager, as a coemployee for Sable's culpable negligence in instructing Boren on a maintenance method that Sable knew was extremely hazardous.

Boren's theory for recovery was culpable negligence. Under Wyoming workers' compensation law, an injured employee may bring an action against a coemployee for culpable negligence causing the injury. Wyo.Stat. Sec. 27-12-103 (Repl.Vol. Dec.1977) ¹ (remedy against coemployee repealed effective July 1, 1987 and section recodified at Sec. 27-14-104 (Repl.Vol. June 1987)); see also Bryant v. Hornbuckle, 728 P.2d 1132 (Wyo.1986); Barnette v. Doyle, 622 P.2d 1349 (Wyo.1981). In Barnette, the court defined culpable negligence as willful and serious misconduct "such as is done purposely, with knowledge ... as to evidence a reckless disregard of consequences...." Id. at 1362 n. 3.

At trial, the district court excluded as hearsay the testimony of three witnesses tendered by Boren. The jury returned a verdict finding Boren sixty per cent negligent and Sable forty per cent negligent. Under Wyoming law, Boren recovered no damages because his negligence exceeded fifty per cent. See Barnette, 622 P.2d at 1361-62.

On appeal Boren asserts the testimony of each of the three witnesses should have been admitted as nonhearsay admissions of a party-opponent under Fed.R.Evid. 801(d)(2)(D), which provides in pertinent part:

A statement is not hearsay if ... [t]he statement is offered against a party and is ... a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship....

We will discuss each excluded statement in sequence.

The decision to admit or exclude evidence is within the sound discretion of the district court, and, on appeal, reviewable only for an abuse of discretion. United States v. Rodriguez-Pando, 841 F.2d 1014, 1018 (10th Cir.1988). We have defined "abuse of discretion" as "an arbitrary, capricious, whimsical, or manifestly unreasonable judgment." United States v. Cardenas, 864 F.2d 1528, 1530 (10th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 3197, 105 L.Ed.2d 705 (1989). "[Abuse of discretion] is not merely an error of law or judgment, but an overriding of the law by the exercise of manifestly unreasonable judgment or the result of impartiality, prejudice, bias or ill-will as shown by evidence or the record of proceedings." United States v. Wright, 826 F.2d 938, 943 (10th Cir.1987).

Further, when reviewing the trial court's rulings on hearsay objections, we afford the trial court heightened deference. " 'The need for deference to a trial court ruling on a hearsay objection is particularly great because the determination of whether certain evidence is hearsay rests heavily upon the facts of a particular case.' " United States v. Porter, 881 F.2d 878, 882 (10th Cir.1989) (quoting Rodriguez-Pando, 841 F.2d at 1018). Finally, we review the district court's evidentiary rulings by considering the record as a whole. Herndon v. Seven Bar Flying Serv., Inc., 716 F.2d 1322, 1326 (10th Cir., 1983), cert. denied, 466 U.S. 958, 104 S.Ct. 2170, 80 L.Ed.2d 553 (1984).

A. The Leekley Testimony

"She sought to say he said he said"

At the final pretrial conference Sable objected to Boren's use at trial of "the testimony of Paula Leekley ² regarding hearsay statements made to her by her deceased husband." Tr. at 27-28, Final Pretrial Proceedings. The gist of the excluded testimony was that Paula Leekley's deceased husband told her that he told Sable during 1979 that the maintenance procedure, which was later used by Boren when he was injured, was dangerous. The district court excluded this testimony as hearsay, and stated "I think it would be prejudicial." Id. at 28.

In response to the court's pretrial ruling, Boren filed a "preliminary offer of proof" before trial and a request for the court to reconsider its ruling at the Final Pretrial Conference. R., Tab 60. In this pleading, Boren advised the court of his intentions to elicit testimony from Paula Leekley regarding statements her late husband told her he made to Sable warning Sable about the dangers of replacing sprue bushings in the manner Sable was employing. ³ The trial court refused to admit the testimony. ⁴

Boren asserts Scott Leekley's statements constitute admissions of a party-opponent, Sable, and are admissible under Fed.R.Evid. 801(d)(2)(D). Boren contends the testimony of Paula Leekley regarding the statements her deceased husband said he made to Sable is not hearsay because the statements of Scott Leekley were made while he was an agent or servant of Sable, the statements concern a matter within the scope of his employment, and were made to Paula Leekley while Scott Leekley was employed by Sable. Boren argues the statement should have been admitted to show that Sable had knowledge or imputed knowledge of the dangerousness of the maintenance procedure. We disagree.

In reaching our conclusion, we examine each statement. First, the trial court did not err in refusing to admit the testimony of Paula Leekley regarding what her husband told her. This testimony, if admitted, would be hearsay. Under Fed.R.Evid. 801, an out of court utterance must have two characteristics before it is rendered inadmissible as hearsay: It must be a "statement"--that is, a verbal assertion or conduct intended as an assertion; and, it must be offered to prove the truth of the matter it asserts. Rule 801(a) and (c). Boren argues that the statement is admissible because of the content of the alleged statement which Paula Leekley claims Scott Leekley claimed he made to Sable. Such argument fails to recognize that the propriety of the trial court's exclusion of Paula Leekley's hearsay testimony does not hinge on the content of the statements Scott Leekley allegedly made to Sable, but on the admissibility or inadmissibility of her testimony. ⁵ Absent a basis for admission under the Rules, Paula Leekley's testimony regarding what her husband told her was inadmissible hearsay.

If we look beyond Paula Leekley's testimony regarding what her husband told her, we find that she sought to testify regarding what her husband told her he said to Sable. This testimony would be double hearsay. Under Fed.Rule 805, hearsay within hearsay is admissible "if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules." Id. Since there is no basis for admitting Paula Leekley's testimony regarding what her husband allegedly told her, we could end the inquiry here.

We note, however, that the alleged statement of Scott Leekley to Sable was offered for a nonhearsay purpose. Boren sought to introduce the alleged out of court statement to prove that Sable heard and understood the statement, not to prove that what Scott Leekley allegedly said was true. In Ries Biologicals, Inc. v. Bank of Santa Fe, 780 F.2d 888 (10th Cir.1986), we recognized the distinction between offering a statement for the truth of the matter asserted and offering the statement to show that it was made. "The oral statements ... were expressly offered for a nonhearsay purpose. The relevance of [the] statements is not their truth or falsity, rather it is the fact the statements were made." Id. at 890. The fact that the alleged statement of Scott Leekley to Sable was nonhearsay, does not render admissible the alleged statement of Scott Leekley to Paula Leekley, about which she sought to testify.

Citing United States v. Young, 736 F.2d 565 (10th Cir.1983), rev'd on other grounds, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), Boren argues that Leekley's alleged statements are admissible under Fed.R.Evid. 801(d)(2)(D). We are not persuaded that Young is dispositive here. In Young, the vice president and general manager of a corporation was charged with mail fraud and making false statements to the government in connection with the sale of fuel oil represented to be crude oil. During the trial the court admitted the out of court statements of Reves, the chief accountant for the corporation, although Reves died more than three years prior to trial. The government claimed these statements made by Reves to the accountants working under him were properly admitted as admissions of an agent of a party-opponent under Fed.R.Evid. 801(d)(2)(D). Young argued there was no evidence Reves was his employee or agent and the court improperly considered Reves as such solely because of Young's higher position in the corporation. Id. at 567. The court analyzed the relationship between Young and Reves, and determined the admission of the...