Herman v. Eagle Star Insurance Company

• Decision Date: 28 September 1966
• Docket Number: No. 65-191.,65-191.
• Citation: 283 F. Supp. 33
• Court: U.S. District Court — Central District of California
• Parties: Lee HERMAN and Victor Herman, Plaintiffs, v. EAGLE STAR INSURANCE COMPANY, Ltd., a corporation, Centennial Insurance Company, a corporation, Niagara Fire Insurance Company, a corporation, Defendants.

283 F. Supp. 33

Lee HERMAN and Victor Herman, Plaintiffs, v. EAGLE STAR INSURANCE COMPANY, Ltd., a corporation, Centennial Insurance Company, a corporation, Niagara Fire Insurance Company, a corporation, Defendants.

No. 65-191.

United States District Court C. D. California.

September 28, 1966.

Jaffe, Osterman & Soll, by Arthur Soll, Los Angeles, Cal., for plaintiffs.

Welsh, Cummins & White, by James O. White, Los Angeles, Cal., for defendants.

MEMORANDUM OPINION AND ORDER DENYING MOTION FOR NEW TRIAL

CRARY, District Judge.

Plaintiffs move for a new trial for the several reasons noted in their motion but rely in chief on the grounds that the court erred "* * * in admitting the testimony of Kenneth Scarce concerning the administering by him and the taking by the plaintiff, Lee Herman, of a polygraph examination concerning the circumstances surrounding the mysterious disappearance of the diamond ring in question, together with the admitting into evidence of the chart of the polygraph examination, and admitting into evidence the interpretation by the witness, Kenneth Scarce, of the polygraph examination, and admitting into evidence the opinion of Kenneth Scarce concerning the results of the polygraph examination" (Page 1, line 28, to line 5, page 2, Motion for New Trial). Plaintiffs' points and authorities filed in support of their motion for new trial are devoted entirely to the matter of the polygraph evidence relating to plaintiff, Lee Herman, and plaintiffs urge that the polygraph and the testimony of Mr. Scarce were erroneously admitted, in that the stipulation therefor was not signed by plaintiffs' counsel and the right to object to the evidence was reserved in the Pre-Trial Order.

The question of the admissibility of evidence in trials in the Federal court is governed by Rule 43, Federal Rules of Civil Procedure. Applying that rule to the instant case, all evidence should be admitted if admissible under a Federal statute or rules applied by courts of the United States in 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.

The case of People v. Houser (1948), 85 Cal.App.2d 686, 193 P.2d 937, discussed hereinafter, concerns the question here involved, although some will argue that it is not clearly in point and for that reason cases in other jurisdictions are considered and discussed in this Memorandum Opinion with the purpose of determining what the rule in California would be in the factual situation found herein.

The general rule is well established in California and elsewhere that polygraph tests or testimony with respect thereto are not admissible in evidence. The New Jersey appellate court in State v. Arnwine (1961), 67 N.J.Super. 483, 495, 171 A.2d 124, 131, said "* * * that there is not a single reported decision where an appellate court has permitted the introduction of the results of a polygraph or lie detector test as evidence in the absence of a sanctioning agreement or stipulation between the parties."

In the case at bar, Mrs. Herman (Lee Herman) signed an "Agreement re Polygraph Examination" (Defts.' Ex. C) which provided, in part, that the polygraph test be taken and that the "lie detector" examiner, Mr. Kenneth Scarce, might give all information re said test to the companies, and it was mutually agreed that Scarce "* * * testify respecting his examination and respecting his opinion based upon said examination in any court of competent jurisdiction subject to cross-examination by plaintiffs." It was further agreed that a transcript of the polygraph examination should constitute "* * * examinations under oath which are provided for in the policies of insurance issued by the companies * * *."

There is a controversy as to whether the agreement was signed by Lee Herman on November 11, 1964, when the polygraph test was given to Mr. Herman, her husband, at their home in Beverly Hills, or on April 22, 1965, when Mrs. Herman's test was made at their home. The original agreement, signed by Mr. Herman on November 11, 1964 (Defts.' Ex. D), contained the notation in the handwriting of Mrs. Herman, "Due to illness Mrs. Herman is not taking the polygraph examination. (Signed) Lee Herman."

Mr. Herman's test was made before the plaintiffs had employed counsel to file the instant action. Charles J. Katz, Esq., was employed for that purpose some time after November 11, 1964. The case was filed in the State court on January 25, 1965, and removed to this court on or about February 5, 1965.

At the time Mrs. Herman underwent the polygraph test on April 22, 1965, she was represented at the examination by Attorney Arnold Shane, an associate of Mr. Katz. Mrs. Herman was tested by Mr. Scarce in the presence of Mr. Shane and Mr. White, counsel for the defendant companies.

The evidence is in conflict as to when Mrs. Herman signed the agreement dated April 22, 1965. That agreement was a carbon copy of the November 11, 1964, agreement and was amended by Mr. Shane, or on his suggestion, by omissions and interlineations (See Ex. C). It is noted that all handwriting and the signature of Mr. Herman on the agreement dated November 11, 1964 (Ex. D), as well as Mrs. Herman's signature following the notation as to why she was not taking the test at that time, were written with a pen containing purplish ink whereas the changes in the agreement dated April 22, 1965, (Ex. C) and Mrs. Herman's signature thereon are in blue ink. Mr. Shane, by his supporting affidavit, states he inserted the amendment to paragraph 4 of the stipulation of April 22, 1965 (Ex. C). It appears on close examination of the ink used in the changes that it is the same as that in the signature "Lee Herman". The pen used by Mr. Herman in signing the agreement (Ex. D) on November 11th is obviously the same as used by Mrs. Herman in the writing and signing of the note re her illness on the November 11th agreement. If she had signed the April 22nd agreement on the previous November 11th date, it is reasonable to conclude she would have used the same pen to sign the copy which was used on April 22nd as used in her note and signature thereto made on November 11th. Likewise it is logical to conclude that the amendments and Mrs. Herman's signature on the agreement dated April 22, 1965, were written with the same pen and therefore at the same time. It is obvious that the ink used on the November 11th and April 22nd agreements is not the same.

Mrs. Herman testified that she signed the stipulation dated April 22, 1965, on November 11, 1964. Lapse of time often dulls memory and it is true that Mrs. Herman did sign the note on the November 11th agreement. It might be easy to confuse the date of her signing the agreement date April 22, 1965, in the circumstances.

It appears reasonable to conclude from a consideration of all the evidence that the agreement dated April 22, 1965, was signed by Mrs. Herman on that date. Her counsel, Mr. Shane, at that time, did not sign the agreement and stated in a supporting affidavit that he was asked by Attorney White to sign the stipulation but he declined. Mr. White stated in open court and confirmed by affidavit dated September 6, 1966, that Mr. Shane refused to sign the stipulation for the reason he was new in the case but that he would and did permit Mrs. Herman to sign and that she did so sign the stipulation on April 22, 1965.

The question to be determined is whether in the circumstances the polygraph test and the testimony of the examiner re same were properly admitted.

All but one of the many cases examined by the court which concern the use of polygraph tests as evidence were criminal cases.

Referring first to California authorities, the only case wherein a polygraph and testimony of the examiner were held to have been admitted properly is People v. Houser, 85 Cal.App.2d 686, 193 P.2d 937, 940 and 942. That case involved prosecution of the defendant for lewd and lascivious conduct. One of the grounds urged on appeal was error in the admission of the results of a polygraph test. A written stipulation had been signed by the prosecutor, the defendant and his counsel, authorizing receipt of the results of the test in evidence and stating that the operator was an expert in interpreting the results of the test. After reciting the stipulation the appellate court observed:

"It would be difficult to hold that defendant should now be permitted on this appeal to take advantage of any claim that such operator was not an expert and that as to the results of the test such evidence was inadmissible, merely because it happened to indicate that he was not telling the truth * * *." (Page 942)

Counsel for plaintiffs urge that this language suggests that the defendant first raised the objection on appeal. It is true the opinion is not clear in this regard but if the point was being first raised on appeal it appears more likely that the appellate court would have summarily disposed of the point on that ground rather than discussing the testimony re the polygraph and the terms and effect of the stipulation.

Stone v. Earp (1951), 331 Mich. 606, 50 N.W.2d 172, 174, is the only civil case, which has been cited or research discloses, wherein the question here involved is discussed. During the course of the trial in that suit the judge stated he was not going to decide the case until both parties took a lie detector test. The parties thereupon agreed that each should take the test and the examiner be allowed to testify as to the results. The Supreme Court of Michigan held it was error to admit in evidence the results of the tests, which were favorable to the defendant and unfavorable to the plaintiff, but that such evidence was not prejudicial in the circumstances. At page 174 of its opinion the court says:

"We are not unmindful of the fact that at the direction of the trial court, the parties agreed to submit to the tests, but whether by

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