Cromling v. Pittsburgh and Lake Erie RR Co.
| Decision Date | 13 November 1963 |
| Docket Number | No. 14360.,14360. |
| Citation | 327 F.2d 142 |
| Parties | John H. CROMLING, Appellant, v. The PITTSBURGH AND LAKE ERIE R.R. CO. |
| Court | U.S. Court of Appeals — Third Circuit |
Daniel M. Berger, Pittsburgh, Pa. (Morris M. Berger, Berger & Berger, Pittsburgh, Pa., on the brief), for appellant.
Gordon E. Neuenschwander, Pittsburgh, Pa., for appellee.
Before BIGGS, Chief Judge, and STALEY and FORMAN, Circuit Judges.
John Cromling brought this suit under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., against his employer, The Pittsburgh and Lake Erie Railroad Company (the "Railroad" or the "Pittsburgh Railroad") to recover damages for injuries sustained in the course of his employment. The jury rendered a verdict in Cromling's favor in the sum of $18,000. It is Cromling's contention that the award was inadequate and that this was caused by the prejudicial actions of the trial court. This appeal is from an order of the court below denying Cromling's motion for a new trial.1
From the evidence the jury could have found that on January 7, 1960, while riding on the side of a box car in the course of his employment as brakeman for the Pittsburgh Railroad, Cromling was struck by a protruding gondola car on an adjoining track. He did not require a leave of absence at that time and continued to work until a pain in his back forced him from duty on December 2, 1960. He was still not working at the time the trial commenced in the court below on October 4, 1962.
The Railroad did not concede negligence, but the central issue at the trial was the nature and extent of the back injuries suffered by Cromling in the accident. Cromling submitted evidence that he was permanently disabled as a result of the accident. The Railroad attempted to show that Cromling's present condition was not wholly attributable to the accident but had an earlier origin.
Cromling has asserted three grounds why the judgment should be reversed and a new trial granted. Two grounds relate generally to efforts of the Pittsburgh Railroad to prove prior disability. The first of these concerns the admissibility of a letter. Before passing on this contention, certain uncontroverted background facts must be set out.
The Pittsburgh Railroad is a component part of the New York Central System ("Central"). Under the rules of Central, the Pittsburgh Railroad has authority to grant an employee an initial leave of absence up to ninety days. The power to extend original leaves is vested exclusively in Central, and if an extension is to be granted, Central requires a doctor's certificate detailing the nature of the injury to the individual involved. Central does not deal directly with the Pittsburgh Railroad's employee in regard to an extension. Instead, the Pittsburgh Railroad transmits to Central both the doctor's certificate and the extension request.
At the trial the Pittsburgh Railroad called as a witness Central's Director of Employee Benefits. Testifying with reference to Central's records which he had before him, this witness stated that Cromling was granted a leave of absence on August 7, 1943 because of a back injury and that the leave was extended twice for ninety day periods, to November 7, 1943 and again to February 7, 1944. The significance of the testimony set out below2 for present purposes is that at some time in the period indicated, the exact date not being shown by the record, a physician's certificate became necessary under Central's rules to support Cromling's further abstention from work.3
Earlier in the proceedings, during cross-examination of Cromling by Pittsburgh Railroad's counsel, the following exchange had taken place.
With these operative facts in mind, we turn to the issue presented. Cromling contends that the court below erred in admitting in evidence, over an objection as hearsay, a letter apparently dictated by Dr. Kuehner and signed by his secretary. The letter was identified by Central's Director of Employee Benefits as coming from Central's file on Cromling. No evidence was presented as to the mode of preparation of the letter. Neither was it shown that Dr. Kuehner was unable to testify. The court admitted the letter on the basis of the Federal Business Records Act, 28 U.S.C. § 1732 (a) set out hereinafter, conceiving that "the matter is so primary that it needs no citation to support it * * *."4
The letter was described and read into evidence by Central's Director of Employee Benefits as follows:
The letter was pertinent in two aspects. It served to impeach Cromling's earlier testimony that he had not been under Dr. Kuehner's care in 1943 for a back condition. It also served as positive evidence that Cromling had experienced a disabling back condition as far back as 1943.5
The letter is prima facie hearsay. It is relevant only if offered for the truth of its contents.6 The Pittsburgh Railroad supports the ruling below on the basis of the business records rule or in the alternative on the rule of evidence relating to admissions by a party.
The letter clearly does not qualify as a business record within the meaning of either the Federal Business Records Act, 28 U.S.C. § 1732(a) or the Pennsylvania Uniform Business Records as Evidence Act, 28 P.S. § 91b.7
The Federal Business Records Act provides in pertinent part:
The Pennsylvania Uniform Business Records as Evidence Act provides: "A record of an act, condition or event shall, in so far as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission."
The decision of this court in Masterson v. Pennsylvania R. Co., 182 F. 2d 793 (3 Cir. 1950) is so squarely on point as concerns both statutes that extended discussion would be superfluous. The Pittsburgh Railroad attempts to distinguish Masterson on the ground that in that case it was the plaintiff who offered a physician's letter as evidence. But this distinction possesses no substantive significance in view of the premise and the wording of the statutes that only writings originating as business records are sufficiently trustworthy to be admissible for the truth of their contents. See Joseph v. Krull Wholesale Drug Co., 147 F.Supp. 250 (E.D.Pa.1956), aff'd per curiam, 245 F.2d 231 (3 Cir. 1957). To reiterate what was said in Masterson, the letter of Dr. Kuehner does not qualify as a business record of Central since the letter was "addressed to it." 182 F.2d at 796. Neither can it be considered as a valid business record of Dr. Kuehner inasmuch as it is not in such a form, and evidence was never presented "that the writing was actually made by or under the direction of the physician at or near the time of his examination of the individual in question and also that it was his custom in the regular course of his professional practice to make such a record." Id. 182 F.2d at 797.
The Railroad also attempts to justify the admission of the letter by means of the rule relating to admissions by a party. Admissions have been defined as the "words or acts of a party-opponent * * offered as evidence against him." McCormick, Evidence, 1954, § 239, at 502. Notwithstanding the literal hearsay nature of such statements, they are not viewed as hearsay and are customarily accepted as substantive evidence of the facts admitted. See Bruce v. McClure, 220 F.2d 330 (5 Cir. 1955). The rationale for...
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