Mahlandt v. Wild Canid Survival & Research Center, Inc.
| Citation | 588 F.2d 626 |
| Decision Date | 26 December 1978 |
| Docket Number | No. 78-1077,78-1077 |
| Parties | 3 Fed. R. Evid. Serv. 1585 Daniel Joseph MAHLANDT, a minor, by and through his parents and next friends, Donald J. Mahlandt and Dorcas Eugenie Curry, Donald J. Mahlandt and Dorcas Eugenie Curry, Individually, Appellants, v. WILD CANID SURVIVAL & RESEARCH CENTER, INC., a corporation, Jean Poos, and Kenneth Poos, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
P. Terence Crebs, Gallop, Johnson, Godiner, Morganstern & Crebs, St. Louis, Mo for appellants; Frank Susman, Susman, Schermer, Willer & Rimmel, St. Louis, Mo., on the brief.
Eugene K. Buckley, Evans & Dixon, St. Louis, Mo., for appellees; Marilyn R. Koch, St. Louis, Mo., on the brief.
Before HEANEY and STEPHENSON, Circuit Judges, and VAN SICKLE, District Judge. *
This is a civil action for damages arising out of an alleged attack by a wolf on a child. The sole issues on appeal are as to the correctness of three rulings which excluded conclusionary statements against interest. Two of them were made by a defendant, who was also an employee of the corporate defendant; and the third was in the form of a statement appearing in the records of a board meeting of the corporate defendant.
On March 23, 1973, Daniel Mahlandt, then 3 years, 10 months, and 8 days old, was sent by his mother to a neighbor's home on an adjoining street to get his older brother, Donald. Daniel's mother watched him cross the street, and then turned into the house to get her car keys. Daniel's path took him along a walkway adjacent to the Poos' residence. Next to the walkway was a five foot chain link fence to which Sophie had been chained with a six foot chain. In other words, Sophie was free to move in a half circle having a six foot radius on the side of the fence opposite from Daniel.
Sophie was a bitch wolf, 11 months and 28 days old, who had been born at the St. Louis Zoo, and kept there until she reached 6 months of age, at which time she was given to the Wild Canid Survival and Research Center, Inc. It was the policy of the Zoo to remove wolves from the Children's Zoo after they reached the age of 5 or 6 months. Sophie was supposed to be kept at the Tyson Research Center, but Kenneth Poos, as Director of Education for the Wild Canid Survival and Research Center, Inc., had been keeping her at his home because he was taking Sophie to schools and institutions where he showed films and gave programs with respect to the nature of wolves. Sophie was known as a very gentle wolf who had proved herself to be good natured and stable during her contacts with thousands of children, while she was in the St. Louis Children's Zoo.
Sophie was chained because the evening before she had jumped the fence and attacked a beagle who was running along the fence and yapping at her.
A neighbor who was ill in bed in the second floor of his home heard a child's screams and went to his window, where he saw a boy lying on his back within the enclosure, with a wolf straddling him. The wolf's face was near Daniel's face, but the distance was so great that he could not see what the wolf was doing, and did not see any biting. Within about 15 seconds the neighbor saw Clarke Poos, about seventeen, run around the house, get the wolf off of the boy, and disappear with the child in his arms to the back of the house. Clarke took the boy in and laid him on the kitchen floor.
Clarke had been returning from his friend's home immediately west when he heard a child's cries and ran around to the enclosure. He found Daniel lying within the enclosure, about three feet from the fence, and Sophie standing back from the boy the length of her chain, and wailing. An expert in the behavior of wolves stated that when a wolf licks a child's face that it is a sign of care, and not a sign of attack; that a wolf's wail is a sign of compassion, and an effort to get attention, not a sign of attack. No witness saw or knew how Daniel was injured. Clarke and his sister ran over to get Daniel's mother. She says that Clarke told her, "a wolf got Danny and he is dying." Clarke denies that statement. The defendant, Mr. Poos, arrived home while Daniel and his mother were in the kitchen. After Daniel was taken in an ambulance Mr. Poos talked to everyone present, including a neighbor who came in. Within an hour after he arrived home, Mr. Poos went to Washington University to inform Owen Sexton, President of Wild Canid Survival and Research Center, Inc., of the incident. Mr. Sexton was not in his office so Mr. Poos left the following note on his door:
Owen, would call me at home, 727-5080? Sophie bit a child that came in our back yard. All has been taken care of. I need to convey what happened to you. (Exhibit 11)
Denial of admission of this note is one of the issues on appeal.
Later that day, Mr. Poos found Mr. Sexton at the Tyson Research Center and told him what had happened. Denial of plaintiff's offer to prove that Mr. Poos told Mr. Sexton that, "Sophie had bit a child that day," is the second issue on appeal.
A meeting of the Directors of the Wild Canid Survival and Research Center, Inc., was held on April 4, 1973. Mr. Poos was not present at that meeting. The minutes of that meeting reflect that there was a "great deal of discussion . . . about the legal aspects of the incident of Sophie biting the child." Plaintiff offered an abstract of the minutes containing that reference. Denial of the offer of that abstract is the third issue on appeal.
Daniel had lacerations of the face, left thigh, left calf, and right thigh, and abrasions and bruises of the abdomen and chest. Mr. Mahlandt was permitted to state that Daniel had indicated that he had gone under the fence. Mr. Mahlandt and Mr. Poos, about a month after the incident, examined the fence to determine what caused Daniel's lacerations. Mr. Mahlandt felt that they did not look like animal bites. The parallel scars on Daniel's thigh appeared to match the configuration of the barbs or tines on the fence. The expert as to the behavior of wolves opined that the lacerations were not wolf bites or wounds caused by wolf claws. Wolves have powerful jaws and a wolf bite will result in massive crushing or severing of a limb. He stated that if Sophie had bitten Daniel there would have been clear apposition of teeth and massive crushing of Daniel's hands and arms which were not injured. Also, if Sophie had pulled Daniel under the fence, tooth marks on the foot or leg would have been present, although Sophie possessed enough strength to pull the boy under the fence.
The jury brought in a verdict for the defense.
The trial judge's rationale for excluding the note, the statement, and the corporate minutes, was the same in each case. He reasoned that Mr. Poos did not have any personal knowledge of the facts, and accordingly, the first two admissions were based on hearsay; and the third admission contained in the minutes of the board meeting was subject to the same objection of hearsay, and unreliability because of lack of personal knowledge.
The Federal Rules of Evidence became effective in July 1975 (180 days after passage of the Act). Thus, at this time, there is very little case law to rely upon for resolution of the problems of interpretation.
The relevant rule here is:
Rule 801. Definitions.
. . . (d) Statements which are not hearsay. A statement is not hearsay if
. . . (2) Admission by party-opponent. The statement is offered against a party and is
. . . (A) his own statement, in either his individual or representative capacity or
(B) a statement of which he has manifested his adoption or belief in its truth, or
(C) a statement by a person authorized by him to make a statement concerning the subject, or
(D) a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship, . . . .
So the statement in the note pinned on the door is not hearsay, and is admissible against Mr. Poos. It was his own statement, and as...
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...Federal Rules of Evidence are for the most part equally clear. To take only one graphic example, in Mahlandt v. Wild Canid Survival & Research Center, Inc., 588 F.2d 626 (8th Cir. 1978), the plaintiffs claimed that their 3-year-old child had been bitten by a wolf named Sophie, who was kept ......
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§ 8.03 EVIDENCE ADMISSIBLE AGAINST ONE PARTY
...limiting the evidence to only the confessing defendant.33--------Notes:[10] See Mahlandt v. Wild Canid Survival & Research Center, Inc., 588 F.2d 626, 631 (8th Cir. 1978) ("The evidence was not admissible as against Mr. Poos [codefendant].").[11] See infra chapter 36 (discussing right of co......
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§ 8.03 Evidence Admissible Against One Party
...limiting the evidence to only the confessing defendant.33 --------Notes:[10] See Mahlandt v. Wild Canid Survival & Research Center, Inc., 588 F.2d 626, 631 (8th Cir. 1978) ("The evidence was not admissible as against Mr. Poos [codefendant].").[11] See infra chapter 36 (discussing right of c......
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§ 32.08 Authorized Admissions: FRE 801(d)(2)(C)
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