Dallas County v. Commercial Union Assurance Co.

• Decision Date: 17 January 1961
• Docket Number: No. 18217.,18217.
• Citation: 286 F.2d 388
• Parties: DALLAS COUNTY, Appellant, v. COMMERCIAL UNION ASSURANCE COMPANY, Ltd., et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

286 F.2d 388 (1961)

DALLAS COUNTY, Appellant, v. COMMERCIAL UNION ASSURANCE COMPANY, Ltd., et al., Appellees.

No. 18217.

United States Court of Appeals Fifth Circuit.

January 17, 1961.

COPYRIGHT MATERIAL OMITTED

William McLean Pitts, T. G. Gayle, J. E. Wilkinson, Jr., Selma, Ala., for appellant.

J. S. Mead, Emmett R. Cox, Birmingham, Ala., John Randolph Smith, Selma, Ala. (Mead & Norman, Birmingham, Ala., of counsel), for appellees.

Before RIVES, BROWN and WISDOM, Circuit Judges.

WISDOM, Circuit Judge.

This appeal presents a single question — the admissibility in evidence of a newspaper to show that the Dallas County Courthouse in Selma, Alabama, was damaged by fire in 1901. We hold that the newspaper was admissible, and affirm the judgment below.

On a bright, sunny morning, July 7, 1957, the clock tower of the Dallas County Courthouse at Selma, Alabama, commenced to lean, made loud cracking and popping noises, then fell, and telescoped into the courtroom. Fortunately, the collapse of the tower took place on a Sunday morning; no one was injured, but damage to the courthouse exceeded $100,000. An examination of the tower debris showed the presence of charcoal and charred timbers. The State Toxicologist, called in by Dallas County, reported the char was evidence that lightning struck the courthouse. Later, several residents of Selma reported that a bolt of lightning struck the courthouse July 2, 1957. On this information, Dallas County concluded that a lightning bolt had hit the building causing the collapse of the clock tower five days later. Dallas County carried insurance for loss to its courthouse caused by fire or lightning. The insurers' engineers and investigators found that the courthouse collapsed of its own weight. They reported that the courthouse had not been struck by lightning; that lightning could not have caused the collapse of the tower; that the collapse of the tower was caused by structural weaknesses attributable to a faulty design, poor construction, gradual deterioration of the structure, and overloading brought about by remodeling and the recent installation of an air-conditioning system, part of which was constructed over the courtroom trusses. In their opinion, the char was the result of a fire in the courthouse tower and roof that must have occurred many, many years before July 2, 1957. The insurers denied liability.

The County sued its insurers in the Circuit Court of Dallas County. As many of the suits as could be removed, seven, were removed to the United States District Court for the Southern District of Alabama, and were consolidated for trial. The case went to the jury on one issue: did lightning cause the collapse of the clock tower?

The record contains ample evidence to support a jury verdict either way. The County produced witnesses who testified they saw lightning strike the clock tower; the insurers produced witnesses who testified an examination of the debris showed that lightning did not strike the clock tower. Some witnesses said the char was fresh and smelled smoky; other witnesses said it was obviously old and had no fresh smoky smell at all. Both sides presented a great mass of engineering testimony bearing on the design, construction, overload or lack of overload. All of this was for the jury to evaluate. The jury chose to believe the insurers' witnesses and brought in a verdict for the defendants.

During the trial the defendants introduced a copy of the Morning Times of Selma for June 9, 1901. This issue carried an unsigned article describing a fire that occurred at two in the morning of June 9, 1901, while the courthouse was still under construction. The article stated, in part: "The unfinished dome of the County's new courthouse was in flames at the top, and * * * soon fell in. The fire was soon under control and the main building was saved. * * *" The insurers do not contend that the collapse of the tower resulted from unsound charred timbers used in the repair of the building after the fire; they offered the newspaper account to show there had been a fire long before 1957 that would account for charred timber in the clock tower.

As a predicate for introducing the newspaper in evidence, the defendants called to the stand the editor of the Selma Times-Journal who testified that his publishing company maintains archives of the published issues of the Times-Journal and of the Morning Times, its predecessor, and that the archives contain the issue of the Morning Times of Selma for June 9, 1901, offered in evidence. The plaintiff objected that the newspaper article was hearsay; that it was not a business record nor an ancient document, nor was it admissible under any recognized exception to the hearsay doctrine. The trial judge admitted the newspaper as part of the records of the Selma Times-Journal. The sole error Dallas County specifies on appeal is the admission of the newspaper in evidence.

In the Anglo-American adversary system of law, courts usually will not admit evidence unless its accuracy and trustworthiness may be tested by cross-examination. Here, therefore, the plaintiff argues that the newspaper should not be admitted: "You cannot cross-examine a newspaper."¹ Of course, a newspaper article is hearsay, and in almost all circumstances is inadmissible.² However, the law governing hearsay is somewhat less than pellucid.³ And, as with most rules, the hearsay rule is not absolute; it is replete with exceptions.⁴ Witnesses die, documents are lost, deeds are destroyed, memories fade. All too often, primary evidence is not available and courts and lawyers must rely on secondary evidence.

Dallas County contends, first, that the hearsay rule is a matter of substance, not of procedure,⁵ and, under Erie Railroad Co. v. Tompkins, 1937, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, the issue for decision is controlled by the law of Alabama.⁶ Monarch Insurance Company of Ohio v. Spach, 5 Cir., 1960, 281 F.2d 401, 408 holds otherwise. In Monarch, this Court held that admissibility of evidence is procedural, not substantive;⁷ that an ex parte statement under oath, inadmissible under a Florida statute, F.S.A. § 92.33, was admissible in the trial of a diversity case in the federal courts in Florida. After a thorough review of the authorities, Judge Brown, for the Court, stated:

"For the most part, however, rules of evidence relate to what lawyers have long thought of as procedure. This is attested by the presence of Rules 43 and 44 in the Federal Rules. The Rules Enabling Act denied the power of the Supreme Court in such Rules to affect substantive rights. That the Supreme Court, after having this problem brought sharply to mind, thought it appropriate to include them is some considered evidence that with respect to admissibility at least, the subject was procedural. To the extent that the receipt of evidence pertains to a matter within the procedural competence of the Federal District Court, it is controlled by F.R.Civ.P. 43(a)."

We regard the newspaper in the instant case as on a par with the questioned statement in Monarch, and "within the procedural competence of the Federal District Court".

There are no cases clearly in point — at least none that we have found — in Alabama decisions,⁸ in the decisions of other states, or in the federal decisions. We decide this case, therefore, on general principles of relevancy and materiality, guided, as in Monarch,⁹ by the liberal language of Rule 43(a), F.R. Civ.P. 28 U.S.C.A.¹⁰ Rule 43(a) provides:

"All evidence shall be admitted which is admissible under the statutes of the United States, or under the rules of evidence heretofore applied in the courts of the United States on the hearing of suits in equity, or under the rules of evidence applied in the courts of general jurisdiction of the state in which the United States court is held. In any case, the statute or rule which favors the reception of the evidence governs and the evidence shall be presented according to the most convenient method prescribed in any of the statutes or rules to which reference is herein made."

Thus, "in a federal court, the rule, whether federal or state, which favors the reception of the evidence governs". New York Life Ins. Co. v. Schlatter, et al., 5 Cir., 1953, 203 F.2d 184, 188.

Rule 43(a) affirmatively expands the scope of admissibility. It is a rule of admissibility, not exclusion. Although the rule specifies three categories of evidence that shall be admitted, it does not prohibit the receipt of probative evidence outside the three categories. So, this Court said in Monarch: "The rule defines the three standards of admissibility. But it does not purport to prohibit the admission of other relevant material probative evidence which, in the considered exercise of judicial wisdom, is trustworthy. * * * In today's litigation with its endless complexities many of which are an outgrowth of our scientific age we would hardly think that a court instituted with all of the power the organic constitution could invest in it would have to stand helpless in the face of a new situation." Even if Rule 43(a) should be interpreted as carrying the necessary implication that evidence to be admissible must fit into one of the three categories specified in the rule,¹¹ the cryptic reference to "rules of evidence heretofore applied in the courts of the United States on the hearing of suits in equity" is so uncertain in its meaning¹² as to give broad latitude to a trial judge in his rulings on admissibility. The trial judge may exercise his discretion, if he keeps the hearing within reasonable bounds. In finding and applying rules of evidence applicable to hearings of suits in equity, his chief censor is the conscience of a Chancellor.

If they are worth their salt, evidentiary rules are to aid the search for truth. Rule 43(a), notwithstanding its shortcomings, carries out that purpose by enabling federal courts to apply a liberal, flexible rule for...