Johnson v. William C. Ellis & Sons Iron Works, Inc.
| Decision Date | 11 January 1980 |
| Docket Number | No. 77-1919,77-1919 |
| Citation | 609 F.2d 820,64 A.L.R.Fed. 965 |
| Parties | , 1980 O.S.H.D. (CCH) P 24,159 Susie Mae JOHNSON, Plaintiff-Appellant, Cross-Appellee, v. WILLIAM C. ELLIS & SONS IRON WORKS, INC., etc., Defendant-Appellee, Long Reach Manufacturing, etc., Defendant-Appellee, Cross-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Robert Lawson Holladay, P. J., Townsend, Jr., Drew, Miss., for Susie Mae Johnson.
W. O. Luckett, Jr., Clarksdale, Miss., for William C. Ellis & Sons Iron Works, Inc.
W. Swan Yerger, Robert T. Gordon, Jr., Jackson, Miss., for Long Reach Mfg., etc.
Appeals from the United States District Court for the Northern District of Mississippi.
ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
(Opinion 10/18/79, 5 Cir., 1979, 604 F.2d 950).
Before TUTTLE, GODBOLD and RUBIN, Circuit Judges.
IT IS ORDERED that the part of the original opinion beginning on page 957 of 604 F.2d 950 and ending at Part 2 on page 958, captioned as set forth below, is withdrawn and the following is substituted:
A. Alleged Evidentiary Errors
1. Refusal to Admit Safety Publications Into Evidence
Even in diversity cases, the Federal Rules of Evidence govern the admissibility of evidence in the federal courts. Fed.R.Evid 1101(b). At trial the plaintiff sought, without success, to have statements from the following materials admitted into evidence: The Principles and Techniques of Mechanical Guarding Bulletin No. 497, published by the Department of Labor, Bureau of Labor Standards, 1959; Handbook of Industrial Safety Standards, published by the National Conservation Bureau Division of Association of Casualty and Surety Executives, 1945; The Safety Code for Mechanical Power Transmission Apparatus, published by the American Standards Association, 1953; and the American Standard Safety Code for Power Presses, published by the American Standard Association, 1960. In refusing to admit any of these, the court relied on Catholic Diocese v. Jaquith, Miss.1969, 224 So.2d 216, which held that governmental safety codes and regulations are admissible in evidence only when they have been given compulsory force by the state legislature, and that only treatises dealing with the "exact sciences" may be admitted.
As we have already pointed out, the admissibility of these publications is governed by federal, not state law, so the court's reliance on Jaquith was misplaced. The Federal Rules of Evidence contain two rules that must be considered in connection with the admissibility of the proffered materials. Both are contained in Rule 803, dealing with exceptions to the hearsay rule. Part 18 sanctions the admission of "statements contained in published treatises, periodicals or pamphlets on a subject of history, medicine or other science or art" if the publication has been called to the attention of an expert witness on cross-examination or relied upon by him in direct examination and if the publication is established as reliable authority either by the testimony or admission of the witness, or by other expert testimony or by judicial notice. "If admitted," pursuant to Part 18, "the statements may be read into evidence but may not be received as exhibits." In addition, Part 24 permits the court to admit "(a) statement not specifically covered" by any other exception "but having equivalent circumstantial guarantees of trustworthiness," if the court determines that "(A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence." The offer may not be received, however, Part 24 continues, "unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant."
We have held that safety codes and standards are admissible when they are prepared by organizations formed for the chief purpose of promoting safety because they are inherently trustworthy and because of the expense and difficulty involved in assembling at trial those who have compiled such codes. Frazier v. Continental Oil Co., 5 Cir. 1978, 568 F.2d 378, 382; Muncie Aviation Corp. v. Party Doll Fleet, Inc., 5 Cir. 1975, 519 F.2d 1178, 1183; Accord, Davis v. Fox River Tractor Co., 10 Cir. 1975, 518 F.2d 481; Wallner v. Kitchens of Sara Lee, Inc., 7 Cir. 1969, 419 F.2d 1028; Boston and Maine Railroad v. Talbert, 1 Cir. 1966, 360 F.2d 286. These rulings remain the law of the circuit, for they determine in effect that safety codes and like publications meet the criteria of Part 24. Our prior decisions concerning such materials were not overturned by the adoption of the Federal Rules of Evidence, for there is nothing in the Rules that conflicts with them; indeed our opinion in Frazier v. Continental Oil Co., 5 Cir. 1978, 568 F.2d 378, was released subsequent to the adoption of the Federal Rules of Evidence and in parts of that opinion we relied on the Rules. See id. at 383.
The Federal Rules of Evidence simply modify the procedure for admission established by our earlier cases. See generally Annot. 58 A.L.R.3d 148 (1974); Comment, Admissibility of Safety Codes, Rules and Standards in Negligence Cases, 47 Tenn.L.Rev. 581, 587 (1970). Judge Weinstein in 4 J. Weinstein & M. Berger, Weinstein's Evidence P 803(24)(01) (1979) comments that the same approach should be used in ruling on proffers made pursuant...
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...evidence law, govern the admissibility of evidence in cases in federal court. See Fed.R.Evid. 1101; Johnson v. William C. Ellis & Sons Iron Works, Inc., 609 F.2d 820, 821 (5th Cir.1980). Under the Federal Rules, "it is [not] necessary to show that an employee or agent declarant possesses 's......
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Private sector business records
...541 So.2d 731 (Fla. 1989); Garbincius v. Boston Edison Co ., 621 F.2d 1171 (1st Cir. 1980); Johnson v. Ellis & Sons Iron Workers, Inc ., 609 F.2d 820 (5th Cir. 1979); Gordy v. City of Canton, Mississippi, 543 F.2d 558 (5th Cir. 1976). 76 Alexander v. Conveyors and Dumpers, Inc. , 731 F.2d 2......
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Private Sector Business Records
...541 So.2d 731 (Fla. 1989); Garbincius v. Boston Edison Co ., 621 F.2d 1171 (1st Cir. 1980); Johnson v. Ellis & Sons Iron Workers, Inc ., 609 F.2d 820 (5th Cir. 1979); Gordy v. City of Canton, Mississippi, 543 F.2d 558 (5th Cir. 1976). 68 Alexander v. Conveyors and Dumpers, Inc. , 731 F.2d 2......
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Hearsay
...ascertained].” Johnson v. William C. Ellis & Sons Iron Works, Inc. , 604 F.2d 950 (5th Cir. 1979), reh’g denied in part, opinion amended , 609 F.2d 820 (5th Cir. 1980). Rule 803(18) provides for the admission of statements in safety codes and safety standards as they are inherently trustwor......
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Private Sector Business Records
...541 So.2d 731 (Fla. 1989); Garbincius v. Boston Edison Co ., 621 F.2d 1171 (1st Cir. 1980); Johnson v. Ellis & Sons Iron Workers, Inc ., 609 F.2d 820 (5th Cir. 1979); Gordy v. City of Canton, Mississippi, 543 F.2d 558 (5th Cir. 1976). 73 Alexander v. Conveyors and Dumpers, Inc. , 731 F.2d 2......