Jennings v. United States, 7407.

• Decision Date: 10 November 1934
• Docket Number: No. 7407.,7407.
• Citation: 73 F.2d 470
• Parties: JENNINGS v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

73 F.2d 470 (1934)

JENNINGS v. UNITED STATES.

No. 7407.

Circuit Court of Appeals, Fifth Circuit.

November 10, 1934.

R. Douglas Feagin, of Macon, Ga., and O'Glen Ray, of Atlanta, Ga., for appellant.

T. Hoyt Davis, U. S. Atty., and A. Edward Smith, and H. G. Rawls, Asst. U. S. Attys., all of Macon, Ga., and Jos. H. San, Atty., Department of Justice, of New York City.

Before BRYAN, FOSTER, and HUTCHESON, Circuit Judges.

HUTCHESON, Circuit Judge.

Appellant, a sufferer from bronchial asthma, brought this suit on a war risk insurance policy, claiming total and permanent disability at the date of his discharge and before his policy lapsed for nonpayment. The evidence shows that he lived in many places where he did various kinds of work until 1927, when he married; that thereafter his wanderings and his workings were more circumscribed. It is not questioned that during this whole period he has had some disability and that during all of it he has drawn compensation; it being an admission in the cause that he had enough compensation due him to have carried his policy to 1922. There is the usual contention that his work record disproves his disability, and the counter one that what he has been doing has not been really work, it has been merely a pretense of work under the guise of which charity has been extended to him, and that such work as he did do has been at the expense of injury to his health. Cf. United States v. Vineyard (C. C. A.) 71 F. (2d) 624.

Under a charge fully and fairly submitting the issues, and on a record amply sustaining the verdict, a jury found against appellant, on his claim of total and permanent disability. He is here assigning as reversible error, rulings on the admission of evidence. It cannot be doubted, in fact, appellant recognizes, that abstract inerrancy in the application of evidential rules is hardly possible, and never an essential to a valid trial, in the federal courts. He recognizes, too, that the burden he carries to secure a reversal for rulings on evidence requires more than a showing of nominal error. Community Natural Gas Co. v. Henley (C. C. A.) 54 F.(2d) 59. Cf. Wigmore, Vol. 1 (2nd Ed.) p. 201, et seq.

In the trial of a case in the federal court, the judge sits as an administrator. The discharge of his function requires the exercise of judgment and discretion. Especially is this true in the application and use of rules of evidence. Wigmore on Evidence, vol. 1 (2d Ed.) pp. 121, 122, 166, 167. Means, not ends, these rules serve to keep a trial within bounds, and, by eliciting and confining the case to the best evidence available, to bring the truth to light. Their proper application in the dramatic atmosphere of a jury trial demands of the judge as administrator the exercise of skill of the highest order, and a discretion which, though it may not be abused, is a wide one. When that discretion is exercised in admitting evidence on cross-examination over the objection that it is immaterial, that is, that it has no tendency to prove any of the tendered issues, there is a heavy burden on the complainant to show clearly, not only that the evidence was immaterial, but that it was an abuse of discretion to admit it. What is really complained of in that case is not the irrelevancy, but the prejudice. Miller v. Continental Shipbuilding Corporation (C. C. A.) 265 F. 158; Community Natural Gas Co. v. Henley, supra. When the evidence is admitted over the objection, not as above, that the evidence is collateral and extraneous to the issue, that though immaterial and irrelevant its effect is to mislead and prejudice, but that what is offered as evidence is not in form evidence, the trial judge's discretion is restrained within narrower bounds, the complainant's burden to show prejudice is less onerous.

Appellant claims both kinds of error here. He claims that there was error in permitting plaintiff¹ and his wife² to testify over the objections of irrelevancy and prejudice to plaintiff's compensation ratings and drawings. This testimony was admitted with the cautionary instruction to the jury, repeated in the charge, that compensation and insurance were entirely distinct, the drawing of one was no defense to the payment of the other. They were told that the evidence was admitted solely for the bearing it might have on whether plaintiff's working had been due to want of necessity, or to want of ability. He claims, too, that there was error in permitting Martin, employment manager for the Dalton Company, and keeper of its work records, to identify, and defendant, through him, to offer in evidence, a portion of plaintiff's employment and work record with the Dalton Adding Machine Company of Norwood, Ohio, from August 3, 1926 to December 7, 1926. This was offered over the objection as to the record of the doctor's findings³ that it was "hearsay," not a part of any governmental record, and was inadmissible on any ground, and as to the weekly earnings record,⁴ that "the issue is not whether plaintiff worked or not; that the witness says he didn't know plaintiff, and that there is no proof that the record is correct."

In assigning error on the evidence as to the receipt of compensation, appellant does not attack the way of its proving. He could not do so, for, if it was relevant, it was the best evidence on the point, coming, as it did, on cross-examination from those who had received and had had the benefit of it. The complaint is that the fact itself had no relevancy to the issue in the suit, and that it had a greatly prejudicial effect by causing the jury to offset the government's bounty to appellant against its obligation to him.

We think this evidence was relevant and that there was no error in the ruling. Evidence, inadmissible generally, or for a particular purpose, may be admissible for another. The objected to evidence is of that kind. Inadmissible as a defense to plaintiff's suit if he was in fact totally and permanently disabled, it was admissible on cross-examination in searching out whether in fact he was.

Brought years after his injury had occurred and he had ceased payments on his policy, plaintiff's suit affirmed, not merely that he was when the suit was brought, but that he has continuously been, totally disabled. To maintain this, he had to give an account, clear and consistent with his present claims, of all his actions and his nonactions, his conduct of...