Miller v. Caterpillar Tractor Co., 81-1271

• Decision Date: 05 January 1983
• Docket Number: No. 81-1271,81-1271
• Citation: 697 F.2d 141
• Parties: 12 Fed. R. Evid. Serv. 819 Rosetta MILLER, Administratrix, Plaintiff-Appellant, v. CATERPILLAR TRACTOR COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 141

697 F.2d 141

12 Fed. R. Evid. Serv. 819

Rosetta MILLER, Administratrix, Plaintiff-Appellant, v. CATERPILLAR TRACTOR COMPANY, Defendant-Appellee.

No. 81-1271.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 26, 1982.

Decided Jan. 5, 1983.

Philip A. Clancey (argued), Traverse City, Mich., for plaintiff-appellant.

William D. Buchanan, Cholette, Perkins & Buchanan, Grand Rapids, Mich., Kenneth Block, Grand Rapids, Mich. (argued), for defendant-appellee.

Before MARTIN and KRUPANSKY, Circuit Judges, and PRATT, ^* District Judge.

KRUPANSKY, Circuit Judge.

In this diversity breach of implied warranty/negligence action, plaintiff/appellant Rosetta Miller, administratrix of the estate of Paul Miller (Miller), appeals from a judgment of "no cause of action", dated March 4, 1981, which was entered pursuant to a jury verdict for defendant Caterpillar Tractor Company (Caterpillar) after a trial which had commenced on February 17, 1981, and concluded March 3, 1981.

The evidence submitted at trial supports the following underlying facts. Paul Miller was employed with Peninsular Asphalt Company as a truck driver. On July 31, 1972, Miller was instructed to haul material from "the Kasson pit", a sand and gravel operation located in Michigan which was owned and operated by the Peninsula Asphalt Corporation. The truck assigned to Miller consisted of a 619 C. Caterpillar Tractor, designed and manufactured by defendant Caterpillar Tractor Company, to which one PR 619 Athey Haulwagon, manufactured by Athey Products Corporation of Chicago, Illinois (not a defendant) was connected. The truck had been loaded to its 30-ton capacity and was parked by Miller on an off-loading ramp over a conveyor and on an 8 1/2% grade. Miller dismounted the truck and began walking towards a hopper where feeder operator George Ciesla (Ciesla) was working. The truck began to roll down the grade whereupon Miller engaged pursuit and attempted to climb into the cab. The tractor passed from Ciesla's view at the crossroad in front of the hopper, and no eyewitness report existed of what occurred after Miller and the truck disappeared into a cloud of dust. Circumstantial evidence suggested, however, and plaintiff's counsel theorized in closing argument, that Miller had mounted and ridden the truck which apparently proceeded directly down the road, onto the right berm, and then veered to the left where the road was bordered by a high wall. It was surmised that Miller was crushed between the equipment and the wall and then run over by the rear tires of the vehicle. Miller's body was discovered face down approximately 247 feet from the point where the equipment had been parked. The truck continued to roll 367 beyond the point where Miller's body was discovered.

Appellant predicates reversible error upon failure of the district court to admit into evidence two reports offered as exceptions to the hearsay rule pursuant to Federal Rule of Evidence 803(8)(C) which provides in full:

(8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness. (emphasis added)

The Sixth Circuit has examined FRE 803(8)(C) in at least three reported decisions. Dallas & Mavis Forwarding Co., Inc. v. Stegall, 659 F.2d 721 (6th Cir.1981); United States v. School District of Ferndale, Michigan, 577 F.2d 1339 (6th Cir.1978); Baker v. Elcona Homes Corporation, 588 F.2d 551 (6th Cir.1978).

The definition of "factual findings" within the meaning of FRE 803(8)(C) is a continuing subject of judicial controversy. In Baker, supra, it was noted that such controversy emanates from the unresolved interpretations attached to the term by the House and Senate. 588 F.2d at 556-57. In Baker, a diversity wrongful death action, a semi-tractor truck had collided with an automobile at an intersection controlled by a traffic light. The dispositive jury issue was a determination as to which vehicle entered the intersection with the green light. There were no eyewitnesses. Both plaintiffs and defendants presented expert testimony reconstructing the accident through vector analysis and use of a momentum formula. Sgt. John Henderson (Henderson), a police officer who had arrived at the scene of the accident within six minutes and had drafted an accident report, testified at length concerning the physical circumstances, measurements taken, descriptions of the locations of the vehicles and physical markings, etc. The district court admitted into evidence, under FRE 803(8)(C), Henderson's accident report which included the observation that "apparently unit # 2 [the Valiant] entered the intersection against a red light," even though this conclusion addressed the ultimate issue before the jury. The Sixth Circuit adjudged that the statement that the Valiant had run the red light was a "factual finding" within the meaning of FRE 803(8)(C). After observing that Henderson had been qualified as an expert in accident reconstruction, Id. at 555, the Court stated:

Applying the rule and its background to the facts here, it is apparent that whether the light was red or green for one driver or the other at the time of the accident is distinctly a factual finding within the meaning of the rule ... which, we believe, is essentially an evaluative opinion resulting from evidence. It is also clear from construction of the rule itself that factual findings admissible under Rule 803(8)(C) may be those which are made by the preparer of the report from disputed evidence, as contrasted to those facts which are "matters observed pursuant to duty imposed by law as to which matters there was a duty to report" called for under Rule 803(8)(B).

Id. at 557-58 (emphasis added). The Court also adjudged that the sources of the information incorporated into the report together with other surrounding circumstances did not reflect a lack of trustworthiness. Id. at 558.

Accordingly, in Baker, supra, the Sixth Circuit affirmed admission of an investigative report including the conclusion or evaluation which was derived from personal observations of circumstantial evidence and which addressed the ultimate dispositive issue before the jury. While this construction of FRE 803(8)(C) appears liberal, it is evident that substantial weight was afforded to the factors that (1) the reporting officer had been qualified as an expert in the area in which the evaluation/conclusion was proffered, (2) the evaluation/conclusion was founded upon independently verifiable objective facts, and (3) the underlying factual observations were made directly by the reporting officer and were not predicated upon hearsay of statements taken from eyewitnesses.

In the most recent Sixth Circuit action, Dallas & Mavis Forwarding Co., Inc. v. Stegall, 659 F.2d 729 (6th Cir.1981), this Court affirmed the district court's refusal to admit pursuant to FRE 803(8)(C) a police officer's accident report which incorporated an opinion as to which of two vehicles had strayed from its lane of traffic. The Court concluded that the report lacked trustworthiness and was thus expressly excludable under the last sentence of FRE 803(8)(C); the report contained only opinion, rather than factual findings, and was supported solely by a statement provided by a single potentially biased eyewitness who was employed by one of the litigants.

Investigative reports in other circuits have been held inadmissible because they included evaluations or opinions which were not considered by the district court to be "factual findings", or were founded solely upon hearsay. See: Franklin v. Skelly Oil Co., 141 F.2d 568 (10th Cir.1944); Smith v Ithaca Corp., 612 F.2d 215 (5th Cir.1980); Olender v. United States, 210 F.2d 795, 801 (9th Cir.1954); Colvin v. United States, 479 F.2d 998 (9th Cir.1973); John McShain, Inc. v. Cessna Aircraft Co., 563 F.2d 632 (3d Cir.1977); McKinnon v. Skil Corp., 638 F.2d 270 (1st Cir.1981).

The first investigative report which was refused admission in the case at bar was prepared by Mining Engineer Curtis Stanius (Stanius), United States Bureau of Mines, pursuant to authority vested by statute, 30 U.S.C. Secs. 3 and 5. The district court based its ruling to exclude the Stanius report upon the provision of FRE 803(8) permitting exclusion of public records when "the sources of information or other circumstances indicate lack of trustworthiness." The Court factually determined that (1) the investigation commenced approximately three days after the accident occurred, (2) the author of the report possessed no first-hand knowledge of the incident, (3) the author anchored the report upon information received from various other persons, (4) the sources of the information were suspect as to hearsay, (5) the report's author was a mining engineer and was not facially qualified to render opinions and conclusions relating to mechanical operations and/or failures, and (6) the report included a conclusion as to the cause of the accident which was not independently verifiable. This Court concludes that the Stanius Report did not possess that indicia of trustworthiness which underlies the hearsay exceptions in general and is implicitly recognized as a safeguard in the last sentence of FRE 803(8). As the Second Circuit has observed:

As with any exception to the rule against hearsay, Rule 803(8)(C) is to be applied in a commonsense manner, subject to the district court's sound...