National Tea Co. v. Tyler Refrigeration Co.

• Citation: 339 NW 2d 59
• Decision Date: 21 October 1983
• Docket Number: No. CX-82-1189.,CX-82-1189.
• Parties: NATIONAL TEA COMPANY, INC., Appellant, v. TYLER REFRIGERATION COMPANY, INC., Respondent.
• Court: Minnesota Supreme Court

339 N.W.2d 59 (1983)

NATIONAL TEA COMPANY, INC., Appellant, v. TYLER REFRIGERATION COMPANY, INC., Respondent.

No. CX-82-1189.

Supreme Court of Minnesota.

October 21, 1983.

W.D. Flaskamp and Douglas J. Muirhead, Minneapolis, for appellant.

Robert D. Brownson, Minneapolis, for respondent.

Heard, considered, and decided by the court en banc.

TODD, Justice.

A fire occurred in a Tyler meat refrigeration unit installed in the National Tea Co. store in Hutchinson, Minnesota. The store's expert witness opined that the fire was the result of faulty design in passing electrical wires through an unprotected square hole in the sheet metal. Tyler's expert claimed the fire was caused by failure of a heating wire which had been improperly circuited at the time of installation. The trial court over objection admitted a document kept by Tyler showing the design of the unit had been approved for Underwriters' Laboratories (UL) listing. The jury found no negligence and that the refrigeration unit was not in a defective condition when it left the control of Tyler. We affirm.

This case involves a factual determination by the jury which we will allow to stand. The only issue of importance is the admission into evidence of the report contained in Tyler's business records which indicates Underwriters' Laboratories had approved the design.

Underwriters' Laboratories is an independent, not for profit, organization, which many years ago was formed by the insurance industry in an effort to establish a certification program whereby the quality of products could be determined, ascertained, tested, evaluated, accepted and listed by Underwriters' Laboratories to have passed their requirements. The model of refrigeration units here involved was originally listed by Underwriters' Laboratories in 1966. The fire occurred May 23, 1979. A listing of Underwriters' Laboratories is somewhat equivalent to certification or approval by other organizations such as the Good Housekeeping seal of approval. Any Underwriters' Laboratories listing is reviewed at least once a year.

Arthur Perez, the expert witness for Tyler, testified in detail as to the procedures followed by Tyler in obtaining and maintaining their Underwriters' Laboratories listing on this particular model of refrigeration unit. Perez is an electrical engineer who worked for 33 years with Tyler Refrigeration Company, Inc. He held various titles with Tyler including refrigeration engineer, administrative engineer, chief engineer, director of engineering and vice president of engineering. In the latter capacity, people designing products for Tyler reported to Perez. Perez now privately consults for business in Europe and the United States. Perez was well acquainted, in his years as an engineer, with the operations and procedures employed by UL in approving a product. The trial court found that Perez was qualified to lay the foundation for the UL report. The Underwriters' Laboratories listing document furnished to Tyler was offered and received in evidence over objection by National Tea.

We have never directly considered the standards to be applied by trial courts in receiving reports such as the Underwriters' Laboratories listings. If admissible, they would be received as an exception to the hearsay rule. Minn.R.Evid. 803(6) provides:

(6) Records of regularly conducted business activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

Minn.R.Evid. 803(6) (emphasis added). The rule has three requirements for evidence to qualify for this exception. First, that the evidence was kept in the course of a regularly conducted business activity. Second, that it was the regular practice of that business activity to make the memorandum, report, record, or data compilation. Finally, that the foundation for this evidence is shown by the custodian or other qualified witness.

National Tea contends that the business record exception applies only to the business that made the record. Since Tyler did not make the UL report and Perez, who laid the foundation for the UL report, did not work at UL, National Tea concludes that requirements one, two and three above are not met. At least one commentator and several courts disagree with National Tea's interpretation.

Records of regularly conducted activity are not normally self proving as public records may be. See Rule 803(8), infra. The testimony of the custodian or other qualified witness who can explain the recordkeeping of his organization is ordinarily essential. The phrase "other qualified witness" should be given the broadest interpretation; he need not be an employee of the entity so long as he understands the system. Thus, a certified public accountant could testify on the point after examining the books and records. A foundation for admissibility may at times be predicated on judicial notice of the nature of the business and the nature of the records as observed by the court, particularly in case of bank and similar statements, or the parties may stipulate the records were filed and prepared in the regular course of business.

When testimony by a custodian is required, the entry must be excluded if the witness cannot vouch that the requirements of Rule 803(6) have been met. The custodian need not have "personal knowledge of the actual creation of the document." Nor need the custodian have been in the employ of the business at the time of the making of the record.

4 J. Weinstein & M. Burger, Weinstein's Evidence ¶ 803(6)02 (1981 & Supp.1982) (emphasis added and citations omitted); see United States v. Consolidated Edison Co. of N.Y., 580 F.2d 1122,...